Amicus Curiae Brief — Vermont v. Cox

No. 86-1108

IN THE

Supreme Court of the Anited States

_ OcToBer TERM, 1986

STATE OF VERMONT,

Petitioner

V.

Rick Cox,

Respondent

On Writ Of Certiorari To The Supreme Court Of Vermont

BRIEF OF AMICUS CURIAE

IN SUPPORT OF THE JUDGMENT BELOW

Davip W. Curtis

Defender General

Henry HINTON

Amicus curiae, invited by Court per order of April 20, 1987

WILLIAM A. NELSON

Appellate Defenders

Office of the Defender General

State Office Building

141 Main Street

Montpelier, VT 05602

(802) 828-3168

TT

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 = (301) 864-6662

QUESTIONS PRESENTED

Was the Vermont Supreme Court correct in holding

that the Fifth Amendment was violated when a probation

ent, who was incarcerated, after the probation officer had

refused respondent's request to defer the interview until

he had sought advice from an agent of respondent's coun-

sel? Should the decision of the Vermont Supreme Court be

affirmed on other grounds: (1) Did the probation officer's

solicitation of information from respondent in the circum-

stances of this case violate respondent’s Sixth Amend-

ment right to counsel? (2) Were respondent's incrimi-

nating statements to the probation officer inadmissible

against him at sentencing because respondent was not

given Miranda warnings before the probation officer

questioned him?

“*

TABLE OF CONTENTS

Page

.. i

SUMMARY OF ARGUMENT. rr... 1

ARGUMENT:

I. The Probation Officers Insistence That Respondent

Participate In The PSI Interview Without Advice Of

Counsel, Or Not At All, Respondent's

Incrimination In Violation Of The Fifth Amend-

II. — Possessed And Asserted His Sixth

Amendment To Advice Of Counsel Before The

PSI Interview; Record Does Not Establish That

Respondent Waived His Sixth Amendment Right To

III. PPP

Given Miranda Warnings Before A PSI Interview 15

Pe 19

TABLE OF AUTHORITIES

Cases: Page

Baumann v. United States, 692 F.2d 565 (9th Cir. 1982) 14

Berkemer v. McCarty, 468 U.S. 420 (1984) ............ 18

Brooks v. Tennessee, 406 U.S. 605 (197ůꝶ 3, 5

Cervantes v. Walker, 589 F.2d 424 (9th Cir. 1978)....... 17

Edwards v. Arizona, 451 U.S. 477 (1981) ............. 13

Escobedo v. Illinois, 378 U.S. 478 (1964) 13

Estelle v. Smith, 451 U.S. 454 (198). 4

Fare v. Michael C., 442 U.S. 707 (1979)............. 11, 12

Gardner v. Broderick, 392 U.S. 273 (1968) ............ 2

Garner v. United States, 424 U.S. 648 (1976)......... 9, 10

Garrity v. New Jersey, 385 U.S. 498 (1967)............ 2

Griffin v. California, 330 U.S. 609 (1965) ............. 3

Lefkowitz v. Cunningham, 431 U.S. 801 (1977)........ 3

Lefkowitz v. Turley, 414 U.S. 70 (17811 2,3

Maine v. Moulton, _. U.S. 106 S. Ct. 477, 88

eee. ee ter 15

Malloy v. Hogan, 378 U.S. 11960) 3

Massiah v. United States, 377 U.S. 201 (1964). ........ 15

Table of Authorities Continued

Cases: Page

Mathis v. United States, 391 U.S. 1 (1968) 16

McCarthy v. Arndstein, 266 U.S. 34 (1924) ........... 2

McGautha v. California, 402 U.S. 183 (19711717. 4,5

Mempa v. Rhay, 389 U.S. 128 (1967) ))́ꝓ7ꝛ: 12

Michigan v. Jackson,. U.S., 106 S.Ct. 1404, 89

eee eee 13

Minnesota v. Murphy, 465 U.S. 420 (1984). 4, 10, 11, 15, 18

Miranda v. Arizona, 384 U.S. 436 (1966)........ 11, 13, 15

Moran v. Burbine.— U.S. 106 S.Ct. 1135, 89

r ̃è . „„ 666 18

Sanitation Men v. Sanitation Comm’r, 392 U.S. 280

EEE EEE . 2

State v. Cox, 519 A.2d 1144 (Vt. 1986)................ 4

United States v. Ash, 413 U.S. 300 (1973)))))y :ʒ: 15

United States v. Byers, 740 F.2d 1104 (D.C. Cir. 1984). 5

United States v. Cadmus, 614 F.Supp. 367 (S. D. N. V.

e cece cencevcccess 17

United States v. Conley, 779 F.2d 970 (4th Cir. 1985)... 17

United States v. Gouveia, 467 U.S. 180 (1984)......... 12

United States v. Mandujano, 425 U.S. 564 (1976)...... 9

United States ex rel. Riley v. Franzen, 653 F. 2d 1153 (7th

D è ˙⁴ͥ᷑!Q ——ͥ 12

United States v. Wade, 388 U.S. 218 (1967 ). 14

United States v. Washington, 431 U.S. 181 (1977)...... 9

Whitley v. Albers,. U.S.. 106 S. Ct. 1078, 89

EE . 12. 16

Williams v. Florida, 399 U.S. 78 (19700). 5

CONSTITUTION AND RULE:

IS ch acecosccccccccccssccces passim

r EET Te passim

Vermont Rule of Evidence 502....................... 12

STATUTE: -

28 Vermont Statutes Annotated §204 ................ 90

MISCELLANEOUS:

III ABA Standards for Criminal Justice, “Sentencing

Alternatives and Procedures,” Commentary to Stan-

dard 18-5.5, page 18-383 (2d Ed. 1980). 8

iv

Table of Authorities Continued

Cases: 0 Page

III ABA Standards for Criminal Justice, Senteneing

Alternatives and Procedures,“ Commentary to Stan-

dard 18-6.3, pages 18-442-444 (2d Ed. 1980)..... 6. 7, 8

Carroll, “The Defense Lawyers Role in the Sentencin

Process: You’ve Got to Accentuate the Positive an

a the Negative,” 37 Mercer L. Rev. 981, 988 ,

( n

SUMMARY OF ARGUMENT

Because the state had no legitimate, or such an insubs-

tantial, interest in conducting a presentence investigation

(PSI) interview with respondent before honoring his

request for legal advice about the interview, and because

the probation officer incorrectly told respondent that he

must speak to her without consultation with counsel or

forfeit completely his opportunity to make a statement for

inclusion in the PSI report, his incriminating statements

to the probation officer were compelled and involuntary,

and thus inadmissible, under the Fifth Amendment. The

decision of the Vermont Supreme Court is also correct

because the probation officer insistence that respondent

proceed with the interview, if at all, without legal advice,

which respondent requested, violated the right to assist-

ance of counsel secured by the Sixth Amendment. Finally,

the failure of the probation officer to give respondent

Miranda warnings before the PSI interview justifies the

Vermont Supreme Court’s decision excluding respond-

ent’s incriminating statements from the PSI report and

from use in sentencing respondent.

ARGUMENT

I. The Probation Officer’s Insistence That Respondent Partici-

pate In The PSI Interview Without Advice Of Counsel, Or Not

At All, Compelled Respondent’s Incrimination In Violation Of

The Fifth Amendment.

This case involves a convicted but unsentenced defend-

ant who told a probation officer that he wanted the chance

to confer with a representative of his attorney office

before participation in a presentence investigation (PSI)

interview. The probation officer offered respondent, the

defendant, the choice between forfeiting his opportunity

to include a statement in the PSI report if he chose to

await the arrival of the defense investigator and speaking

2

to her at once without counsel’s advice. Because the

choice put to respondent made the exercise of the priv-

ilege costly—if he claimed the privilege, he lost the

chance to speak for the PSI report—, respondent’s state-

ments included in the PSI report were compelled and thus

inadmissible at sentencing.

In a series of cases, this Court has prohibited states

from burdening the exercise of Fifth Amendment rights

by imposing a penalty upon persons who claim the priv-

ilege. In Garrity v. New Jersey, 385 U.S. 493 (1967), the

Court held that persons threatened with discharge from

employment for claiming the Fifth Amendment privilege

did not act freely when they answered official questions:

The choice given petitioners was either to forfeit

their jobs or to incriminate themselves. The option to

lose their means of livelihood or to pay the penalty of

self-incrimination is the antithesis of free choice to

speak out or to remain silent. We think the

statements were infected by the coercion inherent in

this scheme of questioning and cannot be sustained

as voluntary under our prior decisions. 385 U.S. at

497-498 (footnote omitted).

Likewise, in Gardner v. Broderick, 392 U.S. 273 (1968),

the Court invalidated the discharge of a policeman for

refusing to waive his Fifth Amendment privilege. A sim-

ilar result was reached in Sanitation Men v. Sanitation

Comm’r, 392 U.S. 280 (1968). Later, the Court held that

requiring public contractors to waive the protections of

the Fifth Amendment or to lose their current contracts

and be barred from future transactions violated the priv-

ilege against self-incrimination. Lefkowitz v. Turley, 414

U.S. 70 (1973). The Turley Court, quoting McCarthy v.

Arndstein, 266 U.S. 34, 40 (1924), held that

the privilege is not ordinarily dependent upon the

nature of the proceeding in which the testimony is

3

sought or is to be used. It applies alike to civil and

criminal proceedings, wherever the answer might

tend to subject to criminal responsibility him who

= it. The — protects a mere witness as

55 as 1— one who is also a party defendant. 414

S. at 77.

The Turley Court noted that.. claims of overriding

interests are not unusual in Fifth Amendment litigation

and they have not fared well.” Id., at 78. The Court

applied the same rule to officers of political parties in

Lefkowitz v. Cunningham, 431 U.S. 801 (1977).

Within the trial process itself, the Court has been

unwilling to permit significant burdens on the exercise of

the privilege against self-incrimination. In Griffin v. Cal-

ifornia, 380 U.S. 609 (1965), the Court held that the Fifth

Amendment prohibited comment by a prosecutor on a

defendant's silence at trial and jury instructions that such

silence is evidence of guilt. Permitting such comment, the

Court held, “ . . is a penalty imposed by courts for exer-

cising a constitutional privilege. It cuts down on the priv-

ilege by making its assertion costly.” 380 U.S. at 614.

In Brooks v. Tennessee, 406 U.S. 605, 609 (1972), the

Court held that the requirement that a defendant testify

first in the defense case or not at all was “ . . an imper-

missible restriction on the defendant’s right against self-

incrimination, ‘to remain silent unless he chooses to speak

in the unfettered exercise of his own will, and to suffer no

penalty . . for such silence, quoting Malloy v. Hogan,

378 U.S. 1, 8 (1964).

In this case, respondent was confronted by an agent of

the state who sought to question him. Respondent

expressed the need to confer with counsel about par-

ticipation in the PSI interview—a decision which involved

whether to waive or claim the privilege against self-

4

incrimination.! Since the probation officer threatened to

impose the penalty of forfeiture of the opportunity to

make a statement for the PSI upon respondent if he

decided to seek legal advice about whether to speak or

remain silent, his disclosure of damaging material to her,

as in Garrity, was not voluntary and thus could not be

used in sentencing him.

The state argues that all respondent was required to do

was choose between silence and participation when con-

fronted by the probation officer’s request for an interview:

Ableing asked to make a choice is not violative of the

privilege against self-incrimination.” BP at 8. Similarly,

the Solicitor General, citing McGautha v. California, 402

U.S. 183 (1971), maintains that“ . . the privilege does not

protect an individual from being faced with hard choices

as to whether to exercise the privilege.” BUS at 7. While

it may be true that it is not unconstitutional to require a

choice, it requires a great leap beyond the principles of

McGautha to maintain that the state can require a defend-

ant represented by counsel to make this hard choice with-

out counsel’s assistance solely to satisfy a probation

officer's convenience.? The “hard choices” required by

The state and the Solicitor General concede that the Fifth

Amendment is available to a convicted but unsentenced defendant.

See Brief of the Petitioner (hereafter “BP”) at 13-14; Brief of the

United States (hereafter BLS“) at 6 n. 2. See also Estelle v. Smith,

451 U.S. 454, 462-463 (1981); Minnesota v. Murphy, 465 U.S. 420, 426

(1984).

There is no suggestion in the record that respondent's request for

counsel was dilatory or in bad faith. Despite the supposition made by

the Solicitor General (BUS at 4-6) that the attorneys agent was late

to a prearranged meeting, it is equally as likely that the probation

officer just showed up unannounced at the correctional center where

respondent was jailed. See J.A. 15. Further, any inference that it was

necessary or legitimate for the probation officer to insist that the

interview be then or never is belied by the record and the opinion of

the Vermont Supreme Court in this case. See State v. Cor. 519 A.2d

1144, 1146-1147 (Vt. 1986).

5

McGautha are assumed to be made upon reflection and

consultation with counsel; these are “choices with which

criminal defendants and their attorneys are quite rou-

tinely faced.” McGautha, supra, at 215. (emphasis sup-

plied).

For this Court to find that external pressure on a

defendant to speak is not unconstitutional compulsion,

the forces contending against silence must at least serve

some valid state purpose. See Williams v. Florida, 399

U.S. 78, 83-86 (1970); United States v. Byers, 740 F.2d

1104, 1113 (D.C. Cir. 1984) (opinion of Scalia, J.);

McGautha, supra, at 214-217. Even then, the Fifth

Amendment privilege often will override a clearly valid

and substantial state interest. For example, in Brooks v.

Tennessee, supra, the legitimate state interest in prevent-

ing the defendant from coloring his testimony in response

to prior defense witnesses was not found sufficient to

uphold Tennessee’s requirement that the defendant tes-

tify first in the defense case or not at all. Such a require-

ment, the Court held, denied an accused the free choice to

decide if and when to forgo his Fifth Amendment priv-

ilege. 406 U.S. at 609-612. The “now or never” choice put

to respondent in this case was justified by an interest

much less substantial than the state’s interest in Brooks.

According to the state and the Solicitor General, no

“compulsion” within the meaning of the Fifth Amend-

ment occurred by requiring respondent to speak at the

PSI interview before receiving counsel advice or to lose

the chance to make a statement for inclusion in the PSI; it

is argued that respondent would have lost nothing of value

by remaining silent at the interview since he had the right

to speak at the sentencing hearing itself. This claim inac-

curately devalues the importance of a defendant's decision

whether to offer or decline a statement for inclusion in the

6

PSI report and erroneously equates the right of allocution

with the defendant's statement in a PSI report.

While respondent would not denigrate the importance

of the right of allocution, it is not accurate to equate this

one shot chance with the influence the PSI report has ona

defendant's sentence, prison classification and program,

and chance for parole. “It is impossible to overemphasize

the importance of the PSI report. The PSI report is ‘a

critical document’ and is the primary source of informa-

tion about a criminal defendant's background ‘for all

stages of the correctional process’ including, of course,

sentencing.” Carroll, “The Defense Lawyers Role in the

Sentencing Process: You’ve Got to Accentuate the

Positive and Eliminate the Negative,” 37 Mercer L. Rev.

981, 988 (1986). [footnotes omitted] The state and the

Solicitor General both note the critical importance at

sentencing of the defendant's PSI statement. See BP at

15-16; BUS at 18 n. 11. It is curious that they then deni-

grate the importance of the choice faced by respondent

when confronted by the probation officer.

Leading authorities counsel defense lawyers to assist

their clients during presentence investigations. The ABA

Standards for Criminal Justice comment:

The presentence investigation is little understood

by most defendants. As a result, some defendants

will act contrary to their own interests by being

ae closemouthed. Those even —

ignorant of the investigations purposes may r

— and criminal associations more fanciful t

real.

* * *

Counsel functions vis-a-vis the ion officer

are perhaps even more important. Although it is not

recommended that counsel turn the presentence

-

interview between the probation officer and the

defendant into an adversarial exchange, there are a

number of useful functions counsel can perform at

this juncture: information can be marshaled, extenu-

ating circumstances detailed, and the defendant's

‘views better articulated. In cases where counsel and

the ion officer share “a similar social milieu,” it

has been observed that the presence of counsel can

establish a better rapport and thus increase the flow

of information. An experienced practitioner has

indeed argued that counsel's presence at these inter-

views should be mandatory:

Couasel must arrange to be present with his

client at the time of the — (or preplead-

ing) investigation interview. Eight or ten years

ago, such presence was virtually unknown. The

social workers who conduct the presentence inter-

view (ordinarily, probation department personnel)

and prepare the report for the court resented the

intrusion of counsel, stating that this interfered

with the “one-to-one relationship” with the defend-

ant. Happily, the constitutional right to counsel at

every stage of the proceedings has overridden this

objection, and, in many jurisdictions, the inter-

views are open to the presence of counsel. Sadly,

however, most counsel still do not attend their

clients’ presentence interviews.

The role of counsel at the presentence interview

can be critical. Unfortunately, most defendants are

not very bright. If they were, they would not be

ing their living in the fashion that led to the

criminal charges, or they would not have been

caught. Most are not articulate. Many are mem-

bers of ethnic minorities, frequently lacking in

communicative skills and more frequently with

problems of comprehending anything terribly

complicated. To send such defendants in, without

counsel at their side, for interviews that will figure

8

critically in the presentence investigator's report,

is itself almost criminal.

These standards recommend but do not require

the at s presence; however, they believe coun-

sel should always prepare the client for the interview.

Counsel's participation in the interview should be

modest, aimed more at clarification and supplemen-

tation than at oral advocacy. Counsel should also

understand the logistical difficulties under which

most probation officers labor and should seek to

accommodate his or her schedule to theirs. The issue

of the privi character of statements made at the

probation r interview is not addressed by these

standards, but it is recognized that defense counsel

should apprise the client of the applicable law in this

III ABA Standards for Criminal Justice, “Sentencing

Alternatives and Procedures,” Commentary to Standard

18-6.3, pages 18.442-444 (2d Ed. 1980) (footnotes omit-

ted).

To be contrasted are the Standards’ comments on the

right of allocution:

By the time the judge comes to the bench, the

judge is usually in a sentencing mood. He has studied

the case, including the presentence report, and has

done the best he can. He may have several men to

sentence and other cases and motions awaiting hear-

ing as well. He is about to announce the sentence.

The allocution sometimes changes the contemplated

sentence, but not usually.

Id., Commentary to Standard 18-5.5, at 18.383 (foot-

note omitted).

It is thus disingenuous to suggest that a defendant's com-

ments immediately before sentence is announced have the

9

same influence on the sentence as a defendant's statement

in the PSI report.

Substantial pressure was exerted on respondent to par-

ticipate in the interview. He was incarcerated, and the

probation officer sought to interview him in accordance

with the trial court's order to prepare a PSI report. See 28

Vermont Statutes Annotated § 204; J.A. 1. The situation

confronting grand jury witnesses is very different from

the circumstances facing respondent. In L/nited States v.

Mandujano, 425 U.S. 564 (1976) (plurality opinion), the

Court held that false statements made by a grand jury

witness when called to testify about criminal activites in

which he may have been involved could be admitted in the

witness's perjury prosecution even if the witness had not

received Miranda warnings. However, in Mandujano,

unlike this case, the witness was advised before he testi-

fied that he was not required to incriminate himself, that

he must answer nonincriminating questions, and that

false answers could result in a perjury prosecution. Man-

dujano was also told that he could leave the grand jury

room to confer with counsel. Respondent was denied this

opportunity.

In United States v. Washington, 431 U.S. 181 (1977),

the defendant was called before a grand jury and given

“comprehensive warnings” about assistance of counsel

and the right to remain silent. 431 U.S. at 186. The Court

found that these warnings eliminated any compulsion that

may have arisen from the grand jury setting. Likewise, in

Garner v. United States, 424 U.S. 648 (1976),* where the

Court held that the duty to file an income tax return was

* Garner also rejects the state claim (SB at 16-17) that one may

safely wait until a criminal prosecution ensues to assert the Fifth

Amendment privilege. See 424 U.S. at 653-656.

10

not itself unconstitutional compulsion to incriminate

oneself, it is significant that the taxpayer could have pre-

pared the return with advice of counsel and could have

asserted the privilege with regard to particular matters

requested in the return. The Court noted:

In fact, a tax who can complete his return at

leisure and with legal assistance, is even less subject

to the chological pressures at issue in Miranda

Shon a/chiness’ whe tee bapn ealied to testily in

judicial proceedings. 424 U.S. at 658.

In the foregoing cases, the person questioned was not

incarcerated and was not required to make an immediate

and irrevocable decision, without counsel, to claim or

forgo the privilege. In contrast, the probation officer's

“now or never” choice to respondent, and respondent's

incarceration, compelled him to participate in the inter-

view.

Of this Court's decisions, Minnesota v. Murphy, 465

U.S. 420 (1984) is perhaps the closest to this case. In

Murphy, the Court held that an unincarcerated proba-

tioner under a general duty to answer truthfully his pro-

bation officer's questions could and must claim his Fifth

Amendment privilege in response to incriminating

queries. Failure to claim the privilege when the questions

were asked amounted to a forfeiture of the privilege. In

deciding that the circumstances of Murphys questioning

were not coercive, the Court noted that Murphy was free

to terminate the interview at any time without adverse

consequences, was not incarcerated, and did not ask for

assistance of counsel at the interview.“

This Court accepted the lower court conclusion that Murphy's

reference to getting a lawyer was not in connection with the probation

officer's questioning but rather in connection with a possible suit for

breach of the confidentiality of Murphys drug therapy program. 465

U.S. at 424 n. 3.

ll

In contrast, respondent in this case was incarcerated.

There is no certainty from the record that the interview

was mutually prearranged. Finally, and most important,

respondent expressly sought legal advice about whether

to claim or waive his Fifth Amendment privilege: in

response, the probation officer told him that exercise of

this option would amount to forfeiture of his right to

include a statement in the PSI report. Under these cir-

cumstances, respondent's statements to the probation

officer were not voluntary. To suggest, with the Solicitor

General (BUS at 10-13), that an incarcerated defendant be

required to decide on his own which questions are

incriminating and which may be safely or wisely answered

proposes a rule that might work for incarcerated defend-

ants who also happen to be lawyers; for the average

inmate, such a rule is completely impractical.

The state and the Solicitor General suggest that a PSI

interview is a benign procedure designed to help the

defendant. See BP at 23-24; BUS at 18 and n. 11. Such a

view ignores the teachings of this Court that a probation

officer, whatever his or her relationship with the proba-

tioner, has no duty to preserve the probationers con-

fidences; “[a] probationer cannot pretend ignorance of the

fact that his probation officer ‘is a peace officer, and as

such is allied, to a greater or lesser extent, with his fellow

peace officers.’"” Minnesota v. Murphy, supra, at 432,

quoting Fare v. Michael C., 442 U.S. 707, 720 (1979). In

her role as gatherer of information for the PSI report, the

probation officer's function is even closer to that of an

A request for counsel during questioning is normally viewed as an

assertion of the right to remain silent. See Miranda v. Arizona, 384

U.S. 436, 444-445, 473-474 (1966); Fare v. Michael C., 442 U.S. 707,

719 (1979). In this case, respondent also asserted directly his right to

remain silent until he could confer with the defense investigator.

12

interrogating police officer than when, as in Murphy, she

supervises a defendant on probation.

For all the foregoing reasons, the Vermont Supreme

Court's decision should be affirmed.

Il. Respondent Possessed And Asserted His Sixth Amend-

ment Right To Advice Of Counsel Before The PSI Inter-

view: The Record Does Not Establish That Respondent

Waived His Sixth Amendment Right To Counsel

Immediately before the PSI interview, respondent

asked to consult with counsel. Respondent's Sixth

Amendment right to counsel had attached upon com-

mencement of the prosecution, see United States v.

Gouveia, 467 U.S. 180, 187 (1984). This Sixth Amendment

right still attended him since he had not yet been sen-

tenced. See Mempa v. Rhay, 389 U.S. 128, 133-34 (1967).®

After his request for a chance to confer with counsel’ was

officer. Under these circumstances, no waiver of the Sixth

Amendment right to counsel occurred.“

he right to counsel at sentencing was all the more important in

this case since by his pleas respondent waived the mght to contest

guilt at trial.

> The Solicitor General concedes that respondent's request to speak

with a defense investigator was a request for counsel. BUS at 4, n. I.

The state does not challenge this conclusion of the Vermont Supreme

Court. There seems little doubt that respondent's request should be

considered a request for counsel, since the investigator by training

could perform many of counsel's advisory functions and could have

confidential communications with respondent. See Vermont Rule of

Evidence 302. Compare Fare v. Michael C. supra, 442 U.S. at

719-724: United States ex rel. Riley v. Franzen, 653 F.2d 1153.

1158-1162 (7th Cir. 1981).

* Respondent relied, infer ai. on the Sixth Amendment right to

counsel in his appeal to the Vermont Supreme Court. and its judg-

ment may be affirmed on this ground. Whitley v. Albers, ____ US.

St. 1078, 89 L. Ed. 2d 251, 265 (1986).

13

In Michigan v. Jackson, ___ U. S. 106 S.Ct. 1404,

89 L.Ed.2d 631 (1986), the Court decided that the rule of

Edwards v. Arizona, 451 U.S. 477 (1981), governing

waivers of the Fifth Amendment right to counsel asserted

during custodial interrogation, applied to waivers of the

Sixth Amendment right to counsel asserted at arraign-

ment on criminal charges. The Court reaffirmed the prin-

ciple that the Sixth Amendment right to counsel is

broader than the right to counsel discussed in Miranda v.

Arizona, 384 U.S. 436 (1966), which applies only to

custodial interrogations. The Jackson court noted that it

would make no sense to give Sixth Amendment counsel

rights less protection than the Miranda right to counsel:

“In our opinion, . . . the reasons for prohibiting the inter-

rogation of an uncounseled prisoner who has asked for the

help of a lawyer are even stronger after he has been

formally charged with an offense than before.” 89

L.Ed.2d at 639.9

In this case, the record shows that respondent spoke to

the probation officer only after he asked for time to con-

sult with counsel and that request was not honored.

Nothing in the record indicates that respondent volun-

tarily initiated further conversations with the probation

officer after he requested counsel. Under these circum-

stances, the respondent's contested statements in the PSI

report were obtained in violation of his Sixth Amendment

right to counsel.

* The facts of this case are similar to Escobedo v. Illinois, 378 U.S.

478 (1964). In Escobedo, police obtained incriminating statements

from the defendant after he had requested and been refused the

opportunity to talk with his lawyer. While the holding of Escobedo is

doubtful under current doctrine governing the attachment of the

right to counsel, the circumstances of that case would no doubt

constitute a Sixth Amendment violation if, as here, the defendant had

been formally charged.

14

Baumann v. United States, 692 F.2d 565 (9th Cir. 1982)

is slim authority on the question of the applicability of the

Sixth Amendment right to counsel at a PSI interview.

The Baumann court found that denial of an attorney

advice before a PSI interview is “constitutionally insig-

nificant.” Id., at 578. This conclusion derives from label-

ing the interview “routine,” (and thus, presumably

unimportant) and adverting to the wide discretion of the

sentencing judge to fashion a sentence. Id. This view of

the importance of the PSI report and what a defendant

says for inclusion in it is at odds with the authorities cited

in Part I, supra, and this Court's “critical stage” cases.

In United States v. Wade, 388 U.S. 218 (1967), the

Court identified certain characteristics of pretrial lineups

which made assistance of counsel at those proceedings

“critical.” Each stage of a criminal proceeding must be

examined, the Wade court wrote, . . to analyze whether

potential substantial prejudice to defendant's rights

inheres in the particular confrontation and the ability of

counsel to help avoid that prejudice.” 388 U.S. at 227.

Counsel may not be required if“ . there is minimal risk

that [a defendant’s] counsel’s absence might derogate

from his right to a fair trial.!° Id., at 228.

Under Wade, it can scarcely be maintained that counsel

is of little importance in shaping a defendant's input into

the most important document used at sentencing and

throughout an inmate's prison stay. Wade explicitly recog-

nizes the important role of counsel in preserving a defend-

ant’s right to remain silent. 388 U.S. at 225. More

recently, the Court has emphasized that “ . . the Sixth

10 It is appropriate in a case disposed of by plea, with sentencing

the only proceeding of substance, to treat proceedings before sen-

tencing as analogous to pretrial stages in a case that is tried.

15

Amendment is violated when the State obtains

incriminating statements by knowingly circumventing

the accused's right to have counsel present in a confronta-

tion between the accused and a state agent.” Maine v.

Moulton, ___ U. S., 106 S.Ct. 477, 88 L. Ed. 2d 481,

496 (1985). The Moulton court noted that “ . the right to

the assistance of counsel is shaped by the need for the

assistance of counsel, ....” Jd., at 492. It is hard to

imagine a situation in which counsel could be of more

benefit to a defendant than in deciding whether to claim or

waive the Fifth Amendment privilege. See also United

States v. Ash, 413 U.S. 300, 312 (1973) (“In Massiah [v.

United States, 377 U.S. 201 (1964)], counsel could have

advised his client on the benefits of the Fifth Amend-

ment. .. .”) Respondent's damaging admissions were

thus elicited in violation of his Sixth Amendment right to

counsel.

III. An Incarcerated Convicted Defendant Should Be Given

Miranda Warnings Before A PSI Interview

In Minnesota v. Murphy, supra, this Court held that a

probationer who was questioned by his probation officer

during a mutually-arranged meeting in the probation

officer's office, and who was free at any time to terminate

the meeting without adverse consequences, was not

entitled to the warnings required by Miranda v. Arizona,

supra. 465 U.S. at 433 and n.6. However, Aa] different

question would be presented if [Murphy] had been inter-

viewed by his probation officer while being held in police

custody or by the police themselves in a custodial set-

ting.” 465 U.S. at 429 n. 5. Respondent maintains that this

is that case—an interview of an incarcerated defendant by

a probation officer to obtain information for use at sen-

tencing.

16

Although respondent asked the Vermont Supreme

Court to hold that Miranda warnings were required

before respondent's PSI interview, the court did not reach

this issue. Respondent contends that the failure of the

probation officer to give Miranda warnings to respondent

renders inadmissible his statements in the PSI interview

and that the decision of the Vermont Supreme Court

should be affirmed on this ground, despite the Vermont

court’s lack of reliance on this theory. See, e.g., Whitley v.

Albers, supra.

In Mathis v. United States, 391 U.S. 1 (1968), the Court

considered the admissibility of statements obtained from

the defendant while he was serving a state prison sen-

tence. The statements were obtained without Miranda

warnings and were used at the defendant's federal trial for

false claims against the government. This Court reversed

the holdings of the lower courts that Miranda warnings

were not required. 391 U.S. at 3.

The government contended in Mathis that Miranda

should not apply because the questions were asked

as part of a routine tax investigation where no criminal

proceedings might even be brought, and. . . [the defend-

ant] had not been put in jail by the officers questioning

him, but was there for an entirely separate offense.” The

Court found that At hese differences are too minor and

shadowy to justify a departure from the well-considered

conclusions of Miranda with reference to warnings to be

given to a person held in custody.” /d., at 4.

Since Mathis, a line of cases from the lower federal

courts has refused to equate incarceration with Miranda

“custody.” Purporting to see in Mathis room for such an

interpretation, these courts have required something

more than the normal incidents of incarceration to make

17

jailhouse interrogation of inmates “custodial” under

Miranda. While respondent finds the distinctions made in

these cases dubious in light of Mathis, we argue that

respondent was entitled to warnings even under this

“something extra” test. An examination of these cases

shows that the need for Miranda warnings was less com-

pelling than in this case.

In perhaps the leading case on the subject, Cervantes v.

Walker, 589 F.2d 424 (9th Cir. 1978), the court made much

of the fact that, unlike Mathis, the defendant was ques-

tioned by prison guards about a matter under investiga-

tion in the prison; At he questioning of Mathis by a

government agent, not himself a member of the prison

staff, on a matter not under investigation within the

prison itself may be said to have constituted an additional

imposition on his limited freedom of movement, thus

requiring Miranda warnings.” Id., at 428. Under this

test, respondent was entitled to Miranda warnings when

questioned by the probation officer.

Likewise, in United States v. Conley, 779 F.2d 970 (4th

Cir. 1985), the court, following Cervantes, upheld the

admission of statements made to prison guards con-

cerning a murder in the prison. On the other hand, the

Conley court agreed that the district court had properly

suppressed statements Conley made without Miranda

warnings to an FBI agent who came from outside the

prison to investigate the homicide. /d., at 974 n. 5.

Other courts and judges have recognized that reading a

special requirement of “extra custody” into Mathis cre-

ates a distincton without a difference, see Cervantes v.

Walker, supra, at 429 (Anderson, J., dissenting). See also

United States v. Cadmus, 614 F.Supp. 367 (S. D. N. V.

1985). Further, to require a special test for Miranda

18

“custody” in prison that turns on numerous variables

would make the work of investigators and judges more

difficult. “As we have stressed on numerous occasions,

ohne of the principal advantages of Miranda is the ease

and clarity of its application.” Moran v. Burbine, ——

U.S. ——, 106 S.Ct. 1135, 89 L.Ed.2d 410, 423 (1986),

quoting Berkemer v. McCarty, 468 U.S. 420, 430 (1984).

It should also be stressed that the probation officer/

defendant contact in this case was different in purpose as

well as in circumstances from the situation in Minnesota

v. Murphy, supra. In Murphy, the interview was

arranged as part of ongoing supervision of a probationer

who had already been granted the substantial benefit of

conditional release and who obviously knew that periodic

inquiry by his probation officer about his rehabilitation

was to be expected. See 465 U.S. at 432. In contrast, the

probation officer in this case was performing the role of

interrogator in her contact with respondent; his sentence

had yet to be determined and this was the only issue of

consequence in respondent's case since he had waived trial

by his pleas. Thus, even if there is some merit to the view

that probationers enjoyed diminished constitutional

rights as compared to other citizens, that principle has no

application before a defendant's sentence is determined.

„ ae wee —

19

Since there is no evidence that Miranda warnings were

given to respondent, the Vermont Supreme Court's deci-

sion should be affirmed.

CONCLUSION

The judgment of the Vermont Supreme Court should be

affirmed.

Respectfully submitted,

Davip W. Curtis

Defender General

Henry HINTON

Amicus curiae, invited by Court

per order of April 20, 1987

WILLIAM A. NELSON

Appellate Defenders

Office of the Defender General

State Office Building

141 Main Street

Montpelier, VT 05602

(802) 828-3168