# Amicus Curiae Brief — McNeil v. Wisconsin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0116%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1991 - **Citation:** 501 U.S. 171 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0116%3A08. Public record. Not legal advice.