Amicus Curiae Brief — McNeil v. Wisconsin

No. 90-5319

In The

Supreme Court of the United States

October Term, 1990

PAUL McNEIL,

Petitioner,

— against —

STATE OF WISCONSIN,

Respondent.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF WISCONSIN

BRIEF AMICI CURIAE OF

AMERICANS FOR

EFFECTIVE LAW ENFORCEMENT, INC.,

JOINED BY

THE INTERNATIONAL ASSOCIATION OF

CHIEFS OF POLICE, INC.,

THE NATIONAL DISTRICT

ATTORNEYS ASSOCIATION, INC., AND THE

NATIONAL SHERIFFS’ ASSOCIATION,

IN SUPPORT OF THE RESPONDENT.

(List of Counsel on Inside Front Cover)

OF COUNSEL:

GREGORY U. EVANS, ESQ.

General Counsel

National Sheriffs’ Association

1450 Duke Street

Alexandria, Virginia 22314

DANIEL B. HALES, ESQ.

Peterson, Ross, Schloerb

and Seidel

President,

Americans for Effective

Law Enforcement, Inc.

Chicago, Illinois 60656

GEORGE D. WEBSTER, ESQ.

International Association of

Chiefs of Police, Inc.

1110 N. Glebe Road, Suite 200

Arlington, Virginia 22201

JACK E. YELVFRTON, ESQ.

Executive Director,

National District Attorneys

Association, Inc.

_ 1033 N. Fairfax Street

Alexandria, Virginia 22314

FRED E. INBAU, ESQ.

John Henry Wigmore Professor

of Law, Emeritus

Northwestern University

School of Law

General Counsel,

Americans for Effective

Law Enforcement, Inc.

Chicago, Illinois 60611

WAYNE W. SCHMIDT, ESQ.

Executive Director

BERNARD J. FARBER, ESQ.

Research Counsel,

Americans for Effective

Law Enforcement, Inc.

5519 N. Cumberland

Avenue, #1008

Chicago, Illinois 60656

JAMES P. MANAK, ESQ.

Counsel of Record,

421 Ridgewood Avenue

Suite 100

Glen Ellyn, Illinois 60137

Tele: (708) 858-6392

Fax: (708) 858-6392

Counsel for Amici Curiae

i

TABLE OF CONTENTS

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THE DEFENDANT’S ACCEPTANCE OF THE

ASSISTANCE OF COUNSEL AND APPEAR-

ANCE WITH COUNSEL AT AN INITIAL HEAR-

ING ON THE CHARGED OFFENSE DID NOT

CONSTITUTE AN INVOCATION OF THE

FIFTH AMENDMENT RIGHT TO COUNSEL

THAT PRECLUDED POLICE INITIATED IN-

TERROGATION ON AN UNRELATED, UN-

CHARGED OFFENSE WHILE DEFENDANT

WAS IN CONTINUOUS CUSTODY ........

SOT ee ee ee eee eee

il

TABLE OF AUTHORITIES

Cases Page

Arizona v. Roberson, __ U.S. __, 108 S.Ct.

EE « 6% chee e a eh > oon ee OO passim

Butler v. Aiken, 846 F.2d 255 (4th Cir. 1988) ...... 5

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

Gilmore v. Utah, 429 U.S. 1012 (1976) ......... 7

Illinois v. Perkins, __ U.S. __, 110 S.Ct. 2394

Dn: 2:66 whe bene de Owe OOo 60 8 2 be 6

Massiah v. United States, 377 U.S. 201 (1964) ..... 6

Michigan v. Mosley, 423 U.S. 96 (1975) ........ 6, 8

Minnick v. Mississippi, __ U.S. __, 111 S.Ct. __,

48 CrL 2053 (December 3, 1990) .......... 6

Miranda v. Arizona, 384 U.S. 436 (1966) ..... passim

People v. Crusoe, 433 Mich. 666, 449 N.W.2d

8 RS ee ee es ea ee ee 7

State v. McNeil, 155 Wis.2d 24, 454 N.W.2d 742

ee ee ae ee 4,7

State v. Preston, 555 A.2d 360 (Vt. 1988) ........ 5

United States ex rel. Espinoza v. Fairman, 813

of £ og 2. eS er ee oa aa ee 5

Article

Inbau and Manak, "Miranda v. Arizona—Is It Worth

The Cost? (A Sample Survey With Commentary

of the Expenditure of Court Time and Effort),"

24 Cal. West. L. Rev. 185 (1988) .......... 8

No. 90-5319

In The

Supreme Court of the United States

October Term, 1990

PAUL McNEIL,

Petitioner,

— against —

STATE OF WISCONSIN,

Respondent.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF WISCONSIN

BRIEF AMICI CURIAE OF

AMERICANS FOR

EFFECTIVE LAW ENFORCEMENT, INC.,

JOINED BY

TH INTERNATIONAL ASSOCIATION OF

CHIEFS OF POLICE, INC.,

THE NATIONAL DISTRICT

ATTORNEYS ASSOCIATION, INC., AND THE

NATIONAL SHERIFFS’ ASSOCIATION,

IN SUPPORT OF THE RESPONDENT.

This brief is filed pursuant to the Rules of the United

States Supreme Court. Consent to file has been granted by

Counsel for the Petitioner and the Respondent. Letters of

Consent of both parties have been filed with the Clerk of this

Court, as required by the Rules.

2

INTEREST OF AMICI CURIAE

Americans for Effective Law Enforcement, Inc.

(AELE), as a national not-for-profit citizens organization, is

interested in establishing a body of law making the police

effort more effective, in a constitutional manner. It seeks to

improve the operation of the police function to protect our

citizens in their life, liberties, and property, within the

framework of the various State and Federal Constitutions.

AELE has previously appeared as amicus curiae over

eighty times in the Supreme Court of the United States and

over thirty-six times in other courts, including the Federal

District Courts, the Circuit Courts of Appeal, and various

state courts, such as the Supreme Courts of California,

Illinois, Ohio, and Missouri.

The International Association of Chiefs of Police, Inc.

(IACP), is the largest organization of police executives and

line officers in the world, consisting of more than 14,000

members in 72 nations. Through its programs of training,

publications, legislative reform, and amicus curiae advocacy,

it seeks to make the delivery of vital police services more

effective, while at the same time protecting the rights of all

our citizens.

The National District Attorneys Association, Inc.

(NDAA), is a nonprofit corporation and the sole national

organization representing state and local prosecuting attor-

neys in America. Since its founding in 1950, NDAA’s

programs of education, training, publication, and amicus

curiae activity have carried out its guiding purpose of

reforming the criminal justice system for the benefit of all of

our citizens.

The National Sheriffs’ Association (NSA), is the largest

organization of sheriffs and jail administrators in America,

3

consisting of over 40,000 members. It conducts programs of

training, publications, and related educational efforts to raise

the standard of professionalism among the Nation’s sheriffs

and jail administrators. While it is interested in the effective

administration of justice in America, it strives to achieve this

while respecting the rights guaranteed to all under the

Constitution.

Amici are professional associations representing the

interests of law enforcement agencies at the state and local

levels. Our members include: (1) law enforcement officers

and !aw enforcement administrators who are charged with

the responsibility of conducting interrogations within the

bounds of the law, and (2) prosecutors and police legal

advisors who, in their criminal jurisdiction capacity, are

called upon to advise law enforcement officers and adminis-

trators in connection with such matters and to prosecute

cases involving evidence obtained thereby.

Because of the relationship with our members, and the

composition of our membership and directors—including

active law enforcement administrators and counsel—we

possess direct knowledge of the impact of the ruling of the

court below, and we wish to impart that knowledge to this

Court.

4

ARGUMENT

THE DEFENDANT’S ACCEPTANCE OF THE ASSIS-

TANCE OF COUNSEL AND APPEARANCE WITH

COUNSEL AT AN INITIAL HEARING ON THE

CHARGED OFFENSE DID NOT CONSTITUTE AN

INVOCATION OF THE FIFTH AMENDMENT RIGHT

TO COUNSEL THAT PRECLUDED POLICE INITIAT-

ED INTERROGATION ON AN UNRELATED, UN-

CHARGED OFFENSE WHILE DEFENDANT WAS IN

CONTINUOUS CUSTODY.

Amici will not discuss at length the case law analysis of

the parties in this case. Instead, we will concentrate upon

policy issues raised in it and our need as law enforcement

administrators and concerned members of Society to (1)

ensure that the police receive adequate, understandable court

guidance as to what is, and what is not, legally permissible

in their interrogations of criminal suspects, and (2) to call

attention to the practical and endangering difficulties that

would ensue if this Court were to adopt the contention made

by the defendant.

The Supreme Court of Wisconsin ruled that the accep-

tance by Petitioner ( “defendant") of the assistance of counsel

and appearance with counsel at his initial court appearance

did not amount to an invocation of the Fifth Amendment

right to counsel that would, under the rule in Edwards v.

Arizona, 451 U.S. 477 (1981), bar subsequent police-

initiated interrogation on an unrelated, uncharged offense

while the defendant remained in custody. State v. McNeil,

155 Wis.2d 24, 454 N.W.2d 742 (1990).

It is now clear that when a suspect whom the police wish

to subject to custodial interrogation invokes his right to

counsel, under the rule in Edwards any further police-

initiated questioning about the charged offense is a violation

5

of the prophylactic rule laid down by this Court in Miranda

v. Arizona, 384 U.S. 436 (1966). However, a question that

has often been raised after Edwards has been whether the bar

applies to police interrogations about other crimes, different

from the ones that were the focus of the original interroga-

tion.

!

The lower courts have been divided on this issue. Com-

pare United States ex rel. Espinoza v. Fairman, 813 F.2d

117 (7th Cir. 1987) (yes), and State v. Preston, SSS A.2d

360 (Vt. 1988) (yes), with Butler v. Aiken, 846 F.2d 255

(4th Cir. 1988) (no: rule of Roberson held not retroactively

available. 490 U.S. ___, 108 L.Ed.2d 347). The United

States Supreme Court resolved this issue in Arizona v.

Roberson, __ U.S. __, 108 S.Ct. 2093 (1988), in favor of

accused persons, but did so in the context of the Fifth

Amendment right to counsel (stationhouse interrogation)

rather than the Sixth Amendment right to counsel (interroga-

tion after the commencement of judicial proceedings).

In Roberson this Court laid down a rule prohibiting

police-initiated questioning regarding any criminal conduct

after a defendant had invoked his Fifth Amendment right to

counsel in the interrogation process. The Edwards rule was

to apply, the Court made clear, even when a different law

enforcement officer seeks to question the suspect about a

different crime without knowing that the suspect previously

requested counsel in the interrogation process. The Roberson

Court reasoned that once the suspect requests counsel, he has

indicated clearly that he does "not feel sufficiently comfort-

able with the pressures of custodial interrogation to answer

questions without an attorney.” The Court noted that "there

is no reason to assume that a suspect’s state of mind is in

any way investigative-specific.”

The Roberson Court made two clear distinctions for

Situations not covered by its ruling.

6

The first was the situation where a Suspect in custodial

interrogation has invoked his Fifth Amendment right to

silence under Miranda, as opposed to his right to counsel.

The Court had previously ruled in Michigan v. Mosley, 423

U.S. 96 (1975), that police re-initiation of questioning about

a separate crime, could still be consistent with the obligation

to “scrupulously honor" a Suspect’s right to terminate

questioning. This distinction simply carries forward the rule

adopted in Mosley and prevents Roberson from being in

conflict with Mosley.

The second distinction, which is relevant to the instant

case, pertained to the situation where a suspect’s Sixth

Amendment right to counsel had attached upon the initiation

of the formal adversary process, but the suspect’s Fifth

Amendment right to counsel under Miranda had not yet

attached because the suspect was not in Custody and present-

ly subjected to police interrogation. This distinction was

intended to cover the situation first illustrated in Massiah y.

United States, 377 U.S. 201 (1964), and most recently

applied by this Court in J/linois v. Perkins, ___ U.S. ___

110 S.Ct. 2394 (1990).

,

Roberson is limited to those situations where a Suspect in

custody has invoked the Fifth Amendment right to counsel

under Miranda.

Amici further note that this Court’s very latest pronounce-

ment on the subject in Minnick y. Mississippi, ___ U.S.

—, 111 S.Ct. __, 48 CrL 2053 (December 3, 1990), in

which the Court ruled that once a Suspect in custody has

invoked his Fifth Amendment right to counsel, thus trigger-

ing the rule in Edwards, he cannot be interrogated again in

the absence of counsel (unless the Suspect initiates the

interrogation process) regardless of whether the suspect has

consulted with an attorney in the meantime, is also consistent

with this parallel development and works no change in it.

7

The Wisconsin Supreme Court correctly refused to take

the Roberson rule beyond its express Fifth Amendment

application, "to include extension of the sixth amendment

invocation of [the] right to counsel to shield the defendant

from postarraignment interrogation on unrelated charges."

454 N.W.2d at 748. It joined several other courts in reach-

ing this conclusion on similar facts, including the Supreme

Court of Michigan in People v. Crusoe, 433 Mich. 666, 449

N.W.2d 641 (1989).

This distinction, amici submit, is also grounded on

common sense realities. A request for counsel at an initial

court appearance, as opposed to during police interrogation,

signifies only that the defendant wants counsel for that

particular offense. This right is clearly accorded to him by

the Sixth Amendment and, as applied, fortifies him from any

further police interrogation with respect to the particular

crime for which he has been charged and arraigned. Howev-

er, even as to that crime, the defendant has the privilege of

refusing further legal representation at trial, and of even

rejecting legal representation that might avoid imposition of

the most severe sanction that Society can apply—the death

penalty. Gilmore v. Utah, 429 U.S. 1012 (1976).

Moreover, an accused person, in exercising his right to

counsel regarding the charged offense, might not even be

considering other offenses he may have committed, or for

which he might be charged. Indeed, he might not even want

his own attorney to know about them, since that might

diminish counsel’s enthusiasm for effective representation at

trial on the present charge.

It is also conceivable that with regard to other offenses a

Suspect may harbor the thought that he will be able to

explain away the suspicion of guilt as to them, on the basis

of self-defense, alibi, or mistaken identification. In other

words, as to those offenses a presently charged offender may

8

exonerate himself to the police without being charged and

having to stand trial. Amici further note that a large percent-

age of criminal offenders have committed other crimes. As

to these, the police should not be foreclosed from question-

ing about such other offenses

af

Amici submit that to accept the contention of the defen-

dant in this case would amount to an immunization of a

Substantial percentage of criminal offenders from any

questioning by the police. There are in fact enough such

protections presently available to them; the public safety

decries the erection of additional ones. As Justice Potter

Stewart stated in Michigan v. Mosley, supra, at 103: "A

blanket prohibition against the taking of voluntary statements

Or a permanent immunity from further interrogation would

transform Miranda safeguards into wholly irrational obsta-

cles to legitimate investigative activity."

As some have noted, the cost of maintaining Miranda has

been very high for the administration of justice in America.

Inbau and Manak, “Miranda v. Arizona—Is It Worth The

Cost? (A Sample Survey With Commentary of the Expendi-

ture of Court Time and Effort)," 24 Cal. West. L. Rev. 185

(1988). We see no need to enlarge the scope of that decision

as defendant would have this Court do in this case.

CONCLUSION

Once again evidence has been presented of the adverse

impact of Miranda v. Arizona on trial courts and the many

appellate courts which should be spared the diversion of their

primary responsibility of making reasonably possible the

conviction of the guilty and affording adequate protection to

the innocent. Overzealousness in implementing the prophy-

lactic rules of Miranda, as would be true in the present case

setting, should be discouraged by this Court. Beyond that,

we respectfully suggest that there be a modification to

9

Miranda’s mandate by simply requiring that persons in

police custody be warned of the right to remain silent

(period!). At the very least, this Court should not add to

the confusion by entertaining the defendant’s argument

for blurring the distinctions that presently exist between

the Fifth and Sixth Amendment rights to counsel.

OF COUNSEL:

GREGORY U. EVANS, ESQ.

General Counsel

National Sheriffs’ Association

1450 Duke Street

Alexandria, Virginia 22314

DANIEL B. HALES, ESQ.

Peterson, Ross, Schloerb,

and Seidel

President,

Americans for Effective

Law Enforcement, Inc.

Chicago, Illinois 60656

GEORGE D. WEBSTER, ESQ.

International Association of

Chiefs of Police, Inc.

1110 N. Glebe Road, Suite 200

Arlington, Virginia 22201

JACK E. YELVERTON, ESQ.

Executive Director,

National District Attorneys

Association, Inc.

1033 N. Fairfax Street

Alexandra, Virginia 22314

Respectfully submitted,

FRED E. INBAU, ESQ.

John Henry Wigmore Professor

of Law, Emeritus

Northwestern University

School of Law

General Counsel,

Americans for Effective

Law Enforcement, Inc.

Chicago, Illinois 60611

WAYNE W. SCHMIDT, ESQ.

Executive Director

BERNARD J. FARBER, ESQ.

Research Counsel,

Americans for Effective

Law Enforcement, Inc.

5519 N. Cumberland

Avenue, #1008

Chicago, Illinois 60656

JAMES P. MANAK, ESQ.

Counsel of Record,

421 Ridgewood Avenue

Suite 100

Glen Ellyn, Illinois 60137

Tele: (708) 858-6392

Fax: (708) 858-6392

Counsel for Amici Curiae