Amicus Curiae Brief — McNeil v. Wisconsin

Pe a ye a mee ey J ¥ i SUPTOINE VOU, Used

\ .

JAN 1 1991

No. 90-5319

| JOSEPH F. SPANIOL, JR.

K

Iu the Supreme Court of the Anited States

OCTOBER TERM, 1990

PAUL MCNEIL, PETITIONER

Vv.

STATE OF WISCONSIN

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF WISCONSIN

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General .

ROBERT A. LONG, JR.

Assistant to the Solicitor General

NINA GOODMAN

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

—=-

mreT AUATLADIC CODV

QUESTION PRESENTED

Whether law enforcement officers may initiate cus-

todial interrogation of a suspect who is represented

by counsel on an unrelated offense.

(1)

TABLE OF CONTENTS

Page

I Sn. cacnnsanccnccnccccccesece 1

EE caked Nae 2

a __cesimisenaneonsococs 5

Argument:

The Court should not create a per se rule against

police-initiated interrogation of suspects who are

represented by counsel on an unrelated charge ........ 9

A ‘a ae 23

TABLE OF AUTHORITIES

Cases:

Arizona V. Roberson, 486 U.S. 675 (1988) _... 7, 8, 13, 16,

18, 19

Brewer Vv. Williams, 430 U.S. 387 (1977) .............. 10

Butler v. McKellar, 110 S. Ct. 1212 (1990) .......... 19

Connecticut v. Barrett, 479 U.S. 523 (1987)........ 5,13

Duckworth v. Eagan, 109 S. Ct. 2875 (1989) ........ 20

Edwards vy. Arizona, 451 U.S. 477 (1981) .............. 7,9

Faretta v. California, 422 U.S. 806 (1975) ............ 15

Kirby Vv. Illinois, 406 U.S. 682 (1972) —.......000000...... 6, 10

Maine V. Moulton, 474 U.S. 159 (1985) .......0000000.... 6, 11

Massiah v. United States, 377 U.S. 201 (1964).... 12

Michigan v. Harvey, 110 S. Ct. 1176 (1990) .......... 16

Michigan Vv. Jackson, 475 U.S. 625 (1986) ...... 5, 7, 11, 18,

14, 17, 19

Michigan Vv. Mosley, 423 U.S. 96 (1975) ....0000....... 13, 17

Michigan v. Tucker, 417 U.S. 433 (1974) —............. 20

Minnick Vv. Mississippi, 111 S. Ct. 486 (1990) ........ 9

Miranda Vv. Arizona, 384 U.S. 436 (1966) ......7, 8, 9, 13, 17

Moran ©. Burbine, 475 U.S. 412 (1986) .....6, 10, 12, 13, 21

New York vy. Quarles, 467 U.S. 649 (1984) ............. 20

Oregon V. Elstad, 470 U.S. 298 (1985) ........00000000.... 20

Patterson V. Illinois, 487 U.S. 285 (1988) 0.0... 15, 19

Smith v. Illinois, 469 U.S. 91 (1984) .........00000000...... 7,13

(111)

;

IV

Cases—Continued : Page A

State v. Jackson, 421 Mich. 39, 365 N.W.2d 56 ju the Supreme Court of the United States

(1984) ...------------eeenenvovsnneeesseeeeceeenencnssesenenneneneem co 14 OcTOBER TERM, 1990

United States vy. Gouveia, 467 U.S. 180 (1984).... 10, 11

United States v. Hall, 905 F.2d 959 (6th Cir.

1990), petition for cert. pending, No. 90-5706... 1-2

United States vy. Roberts, 869 F.2d 70 (2d Cir. No, 90-5319

1989) --.----nonnn----neeennoe-oe sevevesstessesesscesssssseceetessseecentane 2 PAUL MCNEIL, PETITIONER

United States v. Throneburg, No. 89-2111 (6th

i Rie 20 v.

“aa v. Wolf, 879 F.2d 1320 (6th Cir. . STATE OF WISCONSIN

United States v. Wright, appeal pending, No. 90-

perch oe ecg gece enrargE -Ra Rg . ON WRIT OF CERTIORARI TO THE

a Tiki an Pe 3 SUPREME COURT OF WISCONSIN

Wyrick Vv. Fields, 459 U.S. 42 (1982) ...............0...... 18

Constitution: BRIEF FOR THE UNITED STATES

; AS AMICUS CURIAE SUPPORTING RESPONDENT

U.S. Const. :

RICE suctssecnatnans siniieithinihaiatasdiaasiaiadamagmaiiimaiiaai passim

Amend. VI ......................4, 5, 6, 7, 10, 11, 16, 17, 18, 19

INTEREST OF THE UNITED STATES

This case presents the question whether the police

should be barred from initiating custodial interroga-

: _ tion of a suspect who is represented by counsel on a

separate charge. The Court’s resolution of this ques-

tion will affect the conduct of interrogations by fed-

eral law enforcement officers and the admission of

voluntary statements by defendants in federal crimi-

nal prosecutions. In addition, the Court’s disposition

of this case will affect the admissibility in federal

prosecutions of statements obtained by state and local

law enforcement officers in circumstances similar to

those in this case.'

‘ The issue presented in this case has arisen in several re-

cent federal prosecutions. See United States v. Hall, 905 F.2d

(1)

2

STATEMENT

1, Petitioner was arrested in Omaha, Nebraska,

pursuant to a criminal complaint and warrant charg-

ing him with an armed robbery in West Allis, Wis-

consin. On May 20, 1987, while petitioner was in

custody in the Omaha jail, two Milwaukee County,

Wisconsin, deputy sheriffs, after advising petitioner

of his Miranda rights, sought to question him. Peti-

tioner declined to answer questions, but he did not

invoke his right to counsel. The deputies promptly

ended the interview. J.A. 5-6, 17.

On May 21, 1987, the deputies escorted petitioner

from Omaha to Milwaukee. During the trip, the

deputies advised petitioner that it would be to his

advantage to tell his side of the story, but they did

not attempt to question him. J.A. 17.

The next day petitioner appeared before a Mil-

waukee County Judicial Court Commissioner on the

armed robbery charge. The Commissioner set bail

and scheduled a preliminary hearing. Petitioner was

represented at the initial appearance by an attorney

from the public defender’s office. J.A. 7-11. Later

that evening, Detective Joseph Butts of the Mil-

waukee County Sheriff’s Department visited peti-

tioner in the Milwaukee County Jail. Detective Butts

advised petitioner of his Miranda rights, and peti-

tioner signed a waiver form. J.A. 12-13. Petitioner

then said, “I guess you want to talk to me about this

thing in Caledonia.” Oct. 5, 1987, Tr. 14. Detective

Butts replied that he did. The detective then pro-

ceeded to question petitioner about a murder and

959 (6th Cir. 1990), petition for cert. pending, No. 90-5706;

United States v. Wolf, 879 F.2d 1320 (6th Cir. 1989) ; United

States v. Roberts, 869 F.2d 70 (2d Cir. 1989) ; United States

Vv. Wright, appeal pending, No. 90-30279 (9th Cir.).

3

burglary that had occurred in Caledonia, Wisconsin

—offenses that were entirely separate from the West

Allis armed robbery on which petitioner had been

charged. /d. at 14-15.

Petitioner, who remained in custody, was ques-

tioned again by Detective Butts and other officers on

May 24 and May 26 with regard to the Caledonia

offenses. Petitioner was advised of his rights and

signed a waiver form before each interrogation ses-

sion. In the course of the questioning, petitioner con-

fessed his involvement in the Caledonia murder and

burglary. J.A. 17.

2. On May 27, 1987, the district attorney issued a

criminal complaint charging petitioner with first de-

gree murder, attempted first degree murder, and

armed burglary in connection with the Caledonia in-

cident. Petitioner moved to suppress his statements,

but the trial court denied the motion. Thereafter,

petitioner was convicted, on his plea of no contest, of

being a party to the crimes of second degree murder,

attempted first degree murder, and armed burglary.°

He was sentenced to 60 years’ imprisonment. J.A.

24.

On appeal, petitioner contended that his statements

of May 22, 24, and 26 should have been suppressed.

He argued that his appearance with counsel at the

initial hearing on the armed robbery charge was an

invocation of his right to counsel under the Fifth

2 After his conviction, petitioner moved to withdraw his

plea, arguing that his counsel had been ineffective in failing

to cite United States ex rel. Espinoza Vv. Fairman, 813 F.2d

117 (7th Cir. 1987), in support of the motion to suppress

petitioner’s statements. The trial court denied petitioner’s

post-conviction motion, concluding that its decision on the

suppression motion “would have been the same even if that

case [had] been argued.” J.A. 15.

4

Amendment that precluded all further police-initiated

interrogation concerning either the charged offense

or any uncharged offense. The Wisconsin Court of

Appeals certified the appeal to the Wisconsin Su-

preme Court. J.A. 16-22. The court of appeals

noted that while “several United States Supreme

Court cases offer a measure of direction on the resolu-

tion of this case, * * * none answers it completely.”

Id. at 21-22.

3. The Wisconsin Supreme Court upheld the trial

court’s denial of petitioner’s suppression motion and

affirmed petitioner’s convictions. J.A. 23-45. The

court recognized that the Fifth and Sixth Amend-

ments afford “two distinct rights to counsel when a

defendant is interrogated by the police.” J.A. 27. As

to the Sixth Amendment right, the court noted that

petitioner had not been charged with the Caledonia

murder or burglary at the time of the interrogations,

and that his Sixth Amendment right to counsel there-

fore had not yet attached. The court explained that

an invocation of the Sixth Amendment right with

respect to a charged offense does not prohibit inter-

rogation on other, uncharged offenses. J.A. 27-28.

The Wisconsin Supreme Court also rejected peti-

tioner’s contention that simply by appearing with

counsel, petitioner had invoked his right not to be

questioned on any subject without counsel. J.A. 30-33.

Noting that a defendant at an initial appearance “is

not being subjected to interrogation,” the court con-

cluded that “there is no fifth amendment right to

counsel at an initial appearance.” J.A. 30. The court

stated that when a defendant has accepted the ap-

pointment of counsel at an initial appearance during

which he is not subject to interrogation, “it is diffi-

cult to see what ‘subtle compulsion’ would exist if the

police were to approach the defendant and seek to

5

interrogate him on an unrelated crime after provid-

ing a full warning of his Miranda rights, including

the right to counsel.” J.A. 31. The court concluded

that “[t]he ‘ordinary meaning’ of a defendant’s re-

quest for counsel at the initial appearance is only that

he is invoking his sixth amendment right to counsel

in the pending prosecution.” J.A. 33 (quoting Con-

necticut v. Barrett, 479 U.S. 523, 530 (1987) ).

Three justices dissented. J.A. 41-45. They saw no

reason to “distinguish[] between a defendant who

makes a request for assistance of counsel to a police

officer while subject to a custodial interrogation and

a defendant who makes a request for assistance of

counsel to a magistrate and thereafter remains in

continuous custody.” J.A. 42. Accordingly, the dis-

senting justices concluded that after a defendant in

custody accepts the appointment of counsel in con-

nection with a charged offense, police officers may not

thereafter seek to question him with respect to any

crime, charged or uncharged. J.A. 42-43.

SUMMARY OF ARGUMENT

When petitioner was formally charged with armed

robbery, his Sixth Amendment right to counsel at-

tached with respect to that offense. Under this

Court’s decision in Michigan v. Jackson, 475 U.S. 625

(1986), a defendant’s request for the appointment of

counsel on a charged offense is construed as an

invocation of his Sixth Amendment right to counsel

at all critical stages of the proceedings on that

charge, including police interrogation. Moreover,

under the rule the Court announced in Jackson, once

the defendant requests the appointment of counsel,

the police are prohibited from initiating further in-

terrogation of the defendant or even seeking a waiver

6

of his right to counsel on the charged offense. But

nothing in Jackson or any other decision of this

Court bars police-initiated questioning of a repre-

sented defendant on unrelated offenses with which

the defendant has not been charged.

1. The Sixth Amendment affords no basis for peti-

tioner’s claim. Petitioner’s right to counsel under

the Sixth Amendment attached only “at or after the

initiation of adversary judicial criminal proceedings

—whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment.”

Kirby v. Illinois, 406 U.S. 682, 689 (1972) (plurality

opinion). At the time of petitioner’s interrogation, the

State had not charged petitioner with murder, let

alone initiated adversary judicial proceedings on

that charge. Consequently, petitioner’s Sixth Amend-

ment rights as to that offense had not attached. Al-

though petitioner’s Sixth Amendment rights had at-

tached as to the armed robbery with which he had

been charged, this Court has never held that the com-

mencement of adversary proceedings on one charge

bars law enforcement officers from questioning the

defendant concerning uncharged offenses. On the

contrary, the Court has said that excluding evidence

pertaining to charges as to which the Sixth Amend-

ment right has not attached, merely because other

charges were pending, would “unnecessarily frustrate

the public’s interest in the investigation of criminal

activities.” Maine v. Moulton, 474 U.S. 159, 180

(1985). See also Moran vy. Burbine, 475 U.S. 412,

431 (1986).

2. Petitioner seeks to achieve precisely the result

that the Court rejected in Moulton and Burbine by

arguing that acceptance of counsel on a charged of-

fense is sufficient to bar all subsequent police-

initiated custodial interrogation concerning any un-

7

charged offense, no matter how remote from the

charged offense. He relies on Edwards vy. Arizona,

451 U.S. 477 (1981), in which this Court adopted a

prophylactic rule that forbids police from approach-

ing a suspect who has invoked his right to counsel

under Miranda vy. Arizona, 384 U.S. 436 (1966), in

an effort to obtain a waiver of that right. Edwards

and its progeny, however, do not require the kind of

blanket prohibition on police investigation that peti-

tioner seeks in this case.

The Court has emphasized that the prophylactic

rule of Edwards protects the individual’s right to

choose whether to speak with law enforcement offi-

cers. Accordingly, the accused must “actually in-

voke[} his right to counsel.” Smith v. Illinois, 469

U.S. 91, 95 (1984) (per curiam). Petitioner’s mere

appearance with counsel at a court proceeding on

the West Allis armed robbery charge should not be

construed as an invocation of his Fifth Amendment

right to counsel at subsequent interrogations on unre-

lated offenses. Nothing about petitioner’s decision

to be represented by counsel in connection with the

armed robbery charge suggests that he also wished

to invoke his right not to be questioned in the absence

of counsel with respect to wholly separate matters.

More generally, there is nothing about the decision

to be represented by counsel in a pending criminal

case that would justify a conclusive presumption that

such a decision is equivalent to a request for counsel

in connection with any future custodial interrogation

of any subject.

Neither Michigan v. Jackson nor Arizona vy. Rober-

son, 486 U.S. 675 (1988), requires a different result.

Jackson applied the rule of Edwards in the Sixth

Amendment context. Because petitioner’s Sixth

Amendment rights on the murder charge had not at-

8

tached at the time of the interrogation, Jackson does

not apply to this case. In Roberson, the suspect un-

questionably invoked his right to counsel under Mi-

randa v. Arizona by stating that he “wanted a law-

yer before answering any questions.” 486 U.S. at

678. The only question in that case was whether

that invocation of the Miranda right should be ap-

plied only to the offense that was the subject of the

questioning or, instead, to any police efforts to ques-

tion the suspect while he was in custody. Although

the Court decided that the policies underlying the

Fifth Amendment and the Miranda decision require

the broader construction, that conclusion does not

suggest that a defendant who accepts or requests

legal representation in a criminal case must be

deemed to have invoked his right to counsel with re-

spect to custodial interrogation on any subject.

Finally, the balance of costs and benefits does not

justify the creation of a new prophylactic rule to

prohibit all custodial interrogation whenever a

suspect is a defendant in a criminal case. The cost

of the rule petitioner advocates would be high: the

rule would exclude from evidence reliable statements

obtained during custodial interrogation of suspects

on any subject, as long as the suspects were charged

and represented in connection with some crime in

some jurisdiction at the time of the interrogation.

By contrast, the benefit of the rule in protecting

against coercive interrogation tactics would be neg-

ligible. The fact that a person has been charged with

and is represented in connection with an unrelated

crime is not likely to make that person more vulner-

able to the coercive effects of custodial interrogation

than a person who is merely a suspect as to the un-

related offense.

9

ARGUMENT

THE COURT SHOULD NOT CREATE A PER SE RULE

AGAINST POLICE-INITIATED INTERROGATION OF

SUSPECTS WHO ARE REPRESENTED BY COUNSEL

ON AN UNRELATED CHARGE

In Miranda y. Arizona, 384 U.S. 436 (1966), this

Court concluded that custodial interrogation gener-

ates “pressures which work to undermine the indi-

vidual’s will to resist and to compel him to speak

where he would not otherwise do so freely.” Jd. at

467. To counteract those pressures, the Court devised

a set of prophylactic rules intended to “assure that

the individual’s right to choose between silence and

speech remains unfettered throughout the interroga-

tion process.” Jd. at 469. In Edwards y. Arizona,

451 U.S. 477 (1981), the Court announced an addi-

tional prophylactic rule for cases in which the suspect

invokes his right to have counsel present during cus-

todial interrogation. The Court held that, following

such a request, the suspect “is not subject to further

interrogation by the authorities until counsel has

been made available to him, unless the accused him-

self initiates further communication, exchanges, or

conversations with the police.” Jd. at 484-485. Most

recently, in Minnick v. Mississippi, 111 S. Ct. 486

(1990), the Court has construed the rule of Edwards

to bar police reinitiation of questioning even after the

suspect has had an opportunity to consult with coun-

sel.

Petitioner asks the Court to create a new prophy-

lactic rule in this case that would extend the per se

rule of Edwards to prohibit law enforcement officers

from questioning a suspect who has accepted the ap-

pointment of counsel to represent him on unrelated

charges. We submit that such a rule would be un-

10

warranted under both this Court’s precedents and the

general principles of interrogation law.

1. As an initial matter, the interrogation in this

case plainly did not violate petitioner’s Sixth Amend-

ment rights.* The right to counsel afforded by the

Sixth Amendment attaches only “at or after the time

that judicial proceedings have been initiated against

him—‘whether by way of formal charge, preliminary

hearing, indictment, information, or arraignment.’ ”

Brewer v. Williams, 430 U.S. 387, 398 (1977) (quot-

ing Kirby vy. Illinois, 406 U.S. 682, 689 (1972) (plu-

rality opinion) ). See also Moran v. Burbine, 475 U.S.

412, 428 (1976) (Sixth Amendment attaches at “the

first formal charging proceeding’). That principle

is consistent with the “core purpose” of the Sixth

Amendment right to counsel, which is to ensure the

assistance of counsel at trial and at critical pretrial

proceedings in which “the accused [is] confronted,

just as at trial, by the procedural system, or by his

expert adversary, or by both.” United States v. Gou-

veia, 467 U.S. 180, 188-189 (1984).

At the time of his interrogation, petitioner’s Sixth

Amendment right to counsel on the Caledonia murder

and burglary offenses had not yet attached. Not only

had there been no adversary judicial proceedings con-

cerning those offenses, but the State had not even

’ Petitioner implicitly concedes as much by framing his ar-

gument exclusively in Fifth Amendment terms. His petition

states the question presented as whether a suspect’s initial

appearance with counsel “on a charged offense of armed rob-

bery [was] an invocation of [petitioner’s] fifth amendment

right to counsel that precluded police initiated interrogation

on an unrelated, uncharged homicide * * *.” Pet. i (emphasis

added). See also Pet. Br. i.

11

arrested petitioner for the murder or burglary.‘ Pe-

titioner had been charged with an unrelated armed

robbery, and he had made an initial court appearance

with counsel on that charge. Consequently, petition-

er’s Sixth Amendment rights had attached with re-

spect to the charged offense. And under this Court’s

decision in Michigan v. Jackson, 475 U.S. 625

(1980), petitioner’s acceptance of appointed coun-

sel at his initial court appearance on the armed

robbery charge prohibited subsequent interrogation

on the charged offense. But this Court has never

held that a defendant’s assertion of the Sixth Amend-

ment right to counsel extends to uncharged, unre-

lated offenses. On the contrary, the Court has said

that interrogation concerning uncharged offenses

does not violate a suspect’s Sixth Amendment right

to counsel, even though the suspect has been charged

with other crimes.

In Maine v. Moulton, 474 U.S. 159 (1985), for

example, the Court said:

To exclude evidence pertaining to charges as to

which the Sixth Amendment right to counsel had

not attached at the time the evidence was ob-

‘ Petitioner asserts that a Caledonia police officer “had in

his own estimate sufficient information” to arrest petitioner

for the murder prior to the interrogations, Pet. Br. 3, and had

filled out a felony warrant request (but had not submitted it

to the District Attorney’s Office) four days before petition-

er’s court appearance on the armed robbery charge. /d.

at 5. The police officer’s actions plainly did not mark the

beginning of adversary judicial proceedings on the murder

charge. This Court “has never held that the [Sixth Amend-

ment] right to counsel attaches at the time of arrest.” United

States v. Gouveia, 467 U.S. at 190. A fortiori, the Sixth

Amendment right to counsel does not attach when an individ-

ual police officer forms the belief that there is sufficient in-

formation to seek an arrest warrant.

12

tained, simply because other charges were pend-

ing at that time, would unnecessarily frustrate

the public’s interest in the investigation of crim-

inal activities. * * * Incriminating statements

pertaining to other crimes, as to which the Sixth

Amendment right has not yet attached, are, of

course, admissible at a trial of those offenses.

Id. at 180 & n.16. See also Moran v. Burbine, 475

U.S. at 431 (government may not interrogate de-

fendant out of the presence of counsel on a charged

offense, but is free to obtain evidence regarding an

uncharged offense “in precisely the same manner

from the identical suspect”); Massiah v. United

States, 377 U.S. 201, 206-207 (1964) (proper for

government to continue investigation of suspected

drug ring following indictment of defendant, al-

though defendant’s incriminating statements cannot

be admitted against him at the trial on the charged

offense ).

2. Petitioner contends that his initial appearance

with counsel should be treated as an invocation of

his Fifth Amendment privilege against compulsory

self-incrimination, and in particular his right under

Miranda not to be questioned without counsel even

with respect to uncharged offenses. In practice, the

new prophylactic rule that petitioner proposes would

result in precisely the same frustration of “the pub-

lic’s interest in the investigation of criminal activi-

ties’ that the Court referred to in Moulton. 474 U.S.

at 180. That cost might be justified if petitioner’s

proposed rule significantly advanced or protected

Fifth Amendment interests. But the rule would not

have that effect.

a. The “fundamental purpose” of the prophylactic

rules adopted in Miranda and Edwards is “to assure

13

that the individual’s right to choose between speech

and silence remains unfettered throughout the inter-

rogation process.” Connecticut vy. Barrett, 479 U.S.

523, 528 (1987) (quoting Miranda, 384 U.S. at 469)

(emphasis added by Court in Barrett). In keeping

with that fundamental purpose, the Court has made

clear that the Fifth Amendment privilege against

compulsory self-incrimination and the related right,

recognized in Miranda, to have counsel present dur-

ing custodial interrogation are not self-executing.

See Moran v. Burbine, 475 U.S. at 433 n.4 (Miranda

did not “creat[e] an undifferentiated right to the

presence of an attorney that is triggered automatic-

ally by the initiation of the interrogation itself”).

Instead, a basic requirement for application of the

Edwards rule is that the accused must “actually in-

voke[] his right to counsel” by “statfing] that he

wants an attorney.” Smith vy. Illinois, 469 U.S. 91,

95 & n.2 (1984) (per curiam). See also Michigan

v. Mosley, 423 U.S. 96, 104n.10 (1975).

Nothing about petitioner’s routine appearance with

counsel at the initial hearing on the armed robbery

charge suggests that petitioner actually ‘“consid-

er[ed] himself unable to deal with the pressures of

custodial interrogation without legal assistance,”

Arizona vy. Roberson, 486 U.S. at 683 (stating the

test for an invocation of the right to counsel in the

interrogation setting). Neither petitioner nor his

counsel said anything at that proceeding with respect

to interrogation. Michigan v. Jackson, of course,

treats a request for representation by counsel as a

bar to police-initiated post-indictment interrogation

with respect to the charged offense, but that is be-

cause a defendant’s decision to be represented by

14

counsel is interpreted to reflect a desire to be repre-

sented by counsel at every critical phase of that case.”

The fact that petitioner apparently chose to be rep-

resented by counsel on the robbery charge cannot be

treated as an invocation of his Fifth Amendment

rights as to uncharged and unrelated offenses.’ It is

true that this Court has said that principles of

waiver favor “a broad, rather than a narrow, inter-

pretation to a defendant’s request for counsel.”

Michigan v. Jackson, 475 U.S. at 633. The Court has

also suggested that an accused “should not be ex-

pected to articulate exactly why or for what purposes

he is seeking counsel.” Jd. at 633 n.7 (quoting State

v. Jackson, 421 Mich. 39, 63-64, 365 N.W.2d 56, 67

(1984)). But that statement does not mean that the

5 This case does not turn on whether a suspect may invoke

his right to counsel at interrogation only after law enforce-

ment officers read him the Miranda warnings and ask whether

he is willing to answer questions. Assuming that a suspect

may invoke his right not to be questioned outside the presence

of counsel at any time while he is in custody (and therefore

that petitioner could have invoked his Miranda rights for all

purposes at the initial appearance on the armed robbery

charge), petitioner never indicated in any way that he wanted

counsel to be present during any or all subsequent custodial

questioning on unrelated offenses.

‘The record shows only that petitioner appeared with

counsel at his initial hearing. While there is no indica-

tion that petitioner explicitly requested representation, we

have treated petitioner’s apparent acceptance of counsel for

purposes of the initial appearance as legally equivalent to

an affirmative request to be represented by counsel at least

for purposes of that proceeding, and we accept, arguendo,

that petitioner’s election to be represented at the initial ap-

pearance should be treated as legally equivalent to the request

for representation made by the defendant in Jackson.

15

invocation of the right to counsel for one purpose in-

variably constitutes the invocation of the right to

counsel for all purposes.

The Court invariably faces a line-drawing prob-

lem in deciding how broadly to construe conduct that

evinces a desire for legal representation. In the con-

text of this case, we submit that the line should be

drawn as follows: where the suspect has done no

more than request or accept representation on one

charge, that conduct should be deemed to invoke the

defendant’s right to counsel for purposes of interro-

gation with respect to the charged offense, but not

as to interrogation on other subjects.

As this Court has recognized, there are significant

differences between representation by counsel after

the government has initiated formal adversary pro-

ceedings and representation at custodial interrogation

before adversarial proceedings commence. “[A]t

trial, counsel is required to help even the most gifted

layman adhere to the rules of procedure and evi-

dence, comprehend the subtleties of voir dire, exam-

ine and cross-examine witnesses effectively (includ-

ing the accused), object to improper prosecution

questions, and much more.” Patterson vy. Illinois, 487

U.S. 285, 299 n.13 (1988). In contrast, the Court

has noted, the “ ‘dangers and disadvantages of self-

representation’ during questioning are less substan-

tial and more obvious to an accused than they are at -

trial,” and “the role of counsel at questioning is rela-

tively simple and limited.” Jd. at 299 (quoting

Faretta vy. California, 422 U.S. 806, 835 (1975)).

Thus, an accused might well request or accept repre-

sentation on pending charges without feeling in any

way unequal to the task of answering questions from

the police on unrelated, uncharged offenses. And

since the dangers and disadvantages of self-repre-

16

sentation during questioning are relatively obvious,

the reasons for construing requests for counsel

broadly are far less persuasive in this context.

A suspect who is represented by counsel on pend-

ing charges, like other suspects in custody, needs no

technical legal knowledge about the scope of his Fifth

and Sixth Amendment rights in order to decide, after

hearing the Miranda warnings, whether he wishes to

answer questions concerning an unrelated offense.

Indeed, a suspect without specialized legal knowledge

would likely be surprised to be told that by retaining

or accepting the appointment of counsel on a charged

offense, he is presumed as a matter of law to have

indicated that he feels unable to answer questions

from law enforcement officers concerning uncharged

and unrelated offenses. For that reason, a suspect

who is represented by counsel in another case is not

likely to feel that he is being badgered, or that his

invocation of rights has been disregarded, if the po-

lice later give him the Miranda warnings and seek

to question him about unrelated matters. Cf. Mich-

igan v. Harvey, 110 S. Ct. 1176, 1180 (1990); Avi-

zona v. Roberson, 486 U.S. at 686 & n.6.

Petitioner’s simple acceptance of counsel on the

armed robbery charge provided no meaningful indi-

cation that he felt himself unable to answer ques-

tions concerning uncharged offenses without an at-

torney. Before questioning petitioner, the officers ad-

vised him of his right to counsel, and he waived that

right. Because petitioner made no request that he

not be interrogated without an attorney, the interro-

gation did not violate his right to remain silent or

his right to counsel.’

7 Petitioner suggests (Pet. Br. 17-18) that his refusal to

make a statement to the officers who escorted him from

17

b. This Court’s decision in Michigan v. Jackson,

supra, does not require a different result. Jackson

held that the rule of Edwards prohibiting further

police-initiated custodial interrogation following a

request for counsel applies “when the basis for the

claim is the Sixth Amendment.” 475 U.S. at 636.

The Court expressly declined to consider whether a

defendant’s request for counsel at an arraignment or

similar proceeding also implicates his rights under

the Fifth Amendment and Miranda. Id. at 630 n.4.

Because petitioner’s Sixth Amendment rights with

respect to the uncharged offenses about which he was

interrogated had not attached when he made the

statements at issue here, Jackson does not govern

this case. The Court in Jackson stated that a de-

fendant’s request for the appointment of counsel at

his arraignment should be presumed to be a request

for the lawyer’s services at all critical stages of the

prosecution, including subsequent custodial interro-

gation. 475 U.S. at 633. That proposition, however,

is limited, by the Sixth Amendment rationale of the

case, to interrogation regarding the charged offense.

Nothing in Jackson suggests that a request for the

appointment of counsel should be construed as an in-

vocation of counsel not only with respect to the

Omaha to Milwaukee, see J.A. 5-6, supports his claim that he

later invoked his Fifth Amendment right to counsel. Con-

trary to petitioner’s suggestion, his earlier request to remain

silent was not a request for counsel and did not preclude the

police from seeking to reinitiate questioning two days later.

See Michigan v. Mosley, 423 U.S. at 104 n.10 (1975) (Miranda

“distinguished between the procedural safeguards triggered

by a request to remain silent and a request for an attorney

and directed that ‘the interrogation must cease until an at-

torney is present’ only ‘[i]f the individual states that he

wants an attorney.’” (quoting Miranda, 384 U.S. at 474)).

18

charged offense, but with respect to all other possible

subjects of interrogation as well. Cf. Arizona v.

Roberson, 486 U.S. 675, 685 (1988) (Sixth Amend-

ment right to counsel “arises from the fact that the

suspect has been formally charged with a particular

crime and thus is facing a state apparatus that has

been geared up to prosecute him’) (emphasis

added ).*

ce. Nor is this Court’s decision in Arizona v. Roler-

son, 486 U.S. 675 (1988), dispositive here. In

Roberson. the Court extended the Edwards rule to

interrogations conducted in the course of separate

investigations. The important difference between this

ease and Roberson is that the defendant in Roberson,

after being advised of his Miranda rights, replied

that he “wanted a lawyer before answering any ques-

tions.” 486 U.S. at 678. The defendant thus plainly

invoked his right to have counsel present at any cus-

todial interrogation. The Court concluded that this

invocation should not be construed as “investigation-

specific;” rather, it applied to “any questions the po-

lice wish[ed] to pose.” /d. at 684. That conclusion

® Petitioner’s reliance (Pet. Br. 24-25) on Wyrick v. Fields,

459 U.S. 42 (1982), is misplaced. The defendant in Fields

was a soldier who had been arrested on a charge of rape.

After retaining counsel, he requested that the military au-

thorities conduct a polygraph examination. /d. at 43-44. The

Court concluded that by requesting a polygraph examination,

Fields had “initiated interrogation,” and that he had made a

valid waiver of the right to have counsel present during the

examination and subsequent questioning. Jd. at 47-49. The

Court in Fields declined to address any issue arising under

the Sixth Amendment, see 459 U.S. at 49, and nothing in its

analysis of Edwards provides any support for petitioner’s

claim. The Court simply found that under all the circum-

stances, Fields had validly waived his right to the presence

of counsel at interrogation. 459 U.S. at 47.

19

rested on the Court’s view that a suspect, having

once expressed his “unwiilingness to answer any

questions without the advice of counsel,” ibid., was

unlikely to change his mind in the context of a differ-

ent investigation. Here, in contrast, petitioner’s ac-

ceptance of representation by counsel at the initial

hearing on the armed robbery charge—unlike Rober-

son’s statement that he “wanted a lawyer before an-

swering any questions”—revealed nothing about his

discomfort with the pressures of custodial interroga-

tion. See Patterson vy. Illinois, 487 U.S. 285, 291

(1988) (Edwards and its progeny preserve the in-

tegrity of a suspect’s choice to communicate with

police only through counsel, but do not bar a suspect

from making an initial choice as to whether he wishes

to answer questions on his own).°

d. A principa! concern of the Court in Roberson

was the need for a bright-line rule to provide “ ‘clear

and unequivocal’ guidelines to the law enforcement

profession.” 486 U.S. at 681-682. That concern does

not require the creation of a new prophylactic rule

to address the circumstances of this case. Here, the

Sixth Amendment, as augmented by Michigan v.

Jackson, provides a bright-line rule: Once the ac-

* Contrary to petitioner’s suggestion (Pet. Br. 26), the

Court in Butler v. McKellar, 110 S. Ct. 1212 (1990), did not

make an “implied finding” that the defendant in that case

invoked his Fifth Amendment right to counsel by appearing

with his attorney at a bond hearing. The only question before

the Court in Butler was whether the rule announced in

Roberson would be applied retroactively to cases on collateral

review. 110 S. Ct. at 1216-1218. In any event, the Court

stated that “[a]fter invoking his Fifth Amendment right to

counsel, Butler retained counsel who appeared with him at a

bond hearing on August 31, 1980.” Jd. at 1214 (emphasis

added).

20

cused has requested or obtained counsel to represent

him on a charged offense, the police may not initiate

custodial interrogation concerning that offense. With

respect to uncharged offenses, however, the accused

remains in precisely the same position as any other

suspect in custody.”

3. Because the prophylactic rules of Miranda and

Edwards “sweep[] more broadly than the Fifth

Amendment itself,” Oregon v. Elstad, 470 U.S. 298,

306-307, 309 (1985), the Court has carefully weighed

the benefits of creating such per se rules against the

costs of restricting police investigations and exclud-

ing from evidence some voluntary confessions. See

Duckworth vy. Eagan, 109 S. Ct. 2875, 2883 (1989)

(O’Connor, J., concurring); New York v. Quarles,

467 U.S. 649, 657 (1984); Michigan v. Tucker, 417

U.S. 433, 450-451 (1974). In this situation, the costs

of creating a new prophylactic rule as an extension

of Edwards outweigh any benefits such a rule might

confer.

The costs of barring interrogation of all suspects

in custody who are represented by counsel on other

charges would be significant. This Court has ree-

ognized that “[a]dmissions of guilt are more than

1 Moreover, applying Edwards in this context would not

result in a perfectly bright line. In a recent decision, for

example, the Court of Appeals for the Sixth Circuit assumed

without decidiag that Edwards applies where a suspect re-

quests counsel on a charged offense, the charges are then

dismissed (leaving no lawyer to consult), and police officers

thereafter initiate custodial interrogation concerning an un-

related offense. United States v. Throneburg, No. 89-2111

(Dee. 17, 1990). Similar questions about the scope of

Edwards would arise if the defendant were convicted of a

charged offense, and then pursued a direct appeal or col-

lateral attack on his conviction, or if the detendant were rep-

resented by counsel in civil litigation with the government.

21

merely ‘desirable’ * * *; they are essential to soci-

ety’s compelling interest in finding, convicting, and

punishing those who violate the law.” Moran v.

Burbine, 475 U.S. at 426. If a defendant is not re-

leased on bail, the rule petitioner proposes would bar

law enforcement officers from questioning him on

any subject until after the trial. If the defendant is

convicted, he is likely to remain in custody, and he

may continue to be represented by counsel on appeal

and perhaps during a collateral attack on his convic-

tion. Consequently, a decision reversing the Wiscon-

sin Supreme Court would effectively insulate many

individuals charged with or convicted of one crime

from any police-initiated interrogation concerning

other wholly unrelated crimes for months or even

years. Presumably, that principle would apply not

only to crimes committed before the suspect was in-

carcerated, but to crimes cormmitted during the pe-

riod of his incarceration as well. Because many of-

fenders commit multiple crimes, and because it is not

unusual for a person under suspicion in connection

with one offense to be a represented defendant in a

separate case in the same or another jurisdiction, a

rule that pulled the curtain down on all police-

initiated custodial interrogation of such persons

would impose a very great cost in restricting law

enforcement efforts.

On the other side of the balance, it is hard to iden-

tify any significant benefits that would flow from

petitioner’s proposed rule. To be sure, petitioner’s

rule would reduce somewhat the risk of admitting

statements from suspects who were subtly coerced

into making them. But any per se rule barring some

class of inculpatory statements would have that ef-

fect. The relevant inquiry is whether admitting

22 |

statements in a case such as this one would permit

the police to overcome a suspect’s expressed desire not

to submit to interrogation without counsel. We do

not believe it would. For purposes of determining the

coercive effect of custodial interrogation, there is no

material difference between a person who has been

charged in one case amd is a suspect in a second, and

a person who is a suspect in both cases.

The fact that the first person had been charged in

a separate case would appear to have little or noth-

ing to do with that person’s susceptibility to the coer-

cive effects of custodial interrogation, and thus his

need for greater safeguards than those provided by

the procedures spelled out in Miranda. In fact, a

suspect who is represented by counsel in a separate

case may find it easier, rather than harder, to invoke

the right to counsel in response to Miranda warnings,

since that suspect already has a lawyer in another

matter and can simply insist on that lawyer’s assist-

ance before questioning in connection with the sepa-

rate, uncharged offenses under investigation. In that

setting, there is no unfairness in treating the sepa-

rately represented suspect the same as the unrepre-

sented defendant and admitting any statements he

makes after validly waiving his rights to silence and

to the presence of counsel during questioning.

al

23

CONCLUSION

The judgment of- the Supreme Court of Wisconsin

should be affirmed.

Respectfully submitted. —

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

ROBERT A. LONG, JR.

Assistant to the Solicitor General

NINA GOODMAN

Attorney

JANUARY 1991

TP U.S. GOVERNMENT PRINTING OFrice 1991 2820¢ 20294