Respondents Brief — United States v. Green

Us fT 7

‘ Supreme Court,

| eL[_LED |

i> AuG 4 1992

C) -

No. 91-1521 orice OF THE CLERK

In The

Supreme Court of the United States

October Term, 1992

S

UNITED STATES,

PETITIONER,

v.

LOWELL GREEN,

RESPONDENT.

On Writ Of Certiorari To The District

Of Columbia Court Of Appeals

¢

BRIEF FOR THE RESPONDENT

o

JoserpH R. Conte

Bonp, Conte & Norman, P.C.

601 Pennsylvania Avenue, N.W.

Suite 900

Wi on, D.C. 20001

(202) 100

REST AVAILABLE COPY’ ™

QUESTION PRESENTED

Whether the “bright-line” rule established by

Edwards v. Arizona, 451 U.S. 477 (1981), Arizoya v. Rober-

son, 486 U.S. 675 (1988) and Minnick v. Mississippi, 111

S.Ct 586 (1990) should be changed to permit law enforce-

ment officers to initiate interrogation of a suspect who

has invoked his right to counsel five months previously

in connection with an unrelated offense, where the sus-

pect consulted with counsel and pleaded guilty to the

unrelated offense prior to the interrogation.

TABLE OF CONTENTS

Page

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eta, . occccuctoneastuasheseeel eee 1

Constitutional provision involved.................. 1

PURINA. oc acedccccncevestetsddscuveuseuauuenads 1

Summnasy CF GHAMENOTB.. 00s cccvicesenssevedecsesses 10

Argument:

The “bright-line” rule established by Edwards v.

Arizona, should not be changed to permit law

enforcement officers to initiate interrogation of a

suspect who has invoked his right to counsel five

months previously in connection with an unre-

lated offense, where the suspect consulted with

counsel and pleaded guilty to the unrelated

offense prior to the interrogation .............. 12

CNS 5c é 36k danceenseaeedan eee 27

ees

TABLE OF AUTHORITIES

Page

Cases:

Arizona v. Roberson, 486 U.S. 675.............4.. passim

Boykin v. Alabama, 395 U.S. 238 (1969)............... 20

Brewer v. Williams, 430 U.S. 387 (1977) .............. 18

Connecticut v. Barrett, 479 U.S. 523 (1987)............ 19

Dunkins v. Thigpen, 854 F.2d 394 (11th Cir. 1988),

cert. denied, 489 U.S. 1059 (1989).................. 21

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

Fare v. Michael C., 442 U.S. 707 (1979).... 15, 16, 17, 18

Faretta v. California, 422 U.S. 806 (1975) ............. 18

Illinois v. Perkins, 110 S.Ct. 239 (1990)............... 20

Johnson v. Zerbst, 304 U.S. 458 (1938)................ 18

McCarthy v. United States, 394 U.S. 459 (1969) ....... 20

McNeil v. Wisconsin, 111 S.Ct. 2204 (1991) ....15, 19, 25

Michigan v. Harvey, 110 S.Ct. 1176 (1990)......... 14, 19

Micnigan v. Jackson, 475 U.S. 625 (1986)........... 15, 18

Michigan v. Mosley, 423 U.S. 96 (1975)... ... 0.666665. 15

Minnick v. Mississippi, 111 S.Ct. 586 (1990)....... passim

Miranda v. Arizona, 384 U.S. 436 (1966)....... _- +» passim

North Carolina v. Butler, 441 U.S. 806 (1975) ...:..... 18

Oregon v. Bradshaw, 462 U.S. 1039 (1983) ..... 15, 18, 19

Patterson v. Illinois, 487 U.S. 285 (1988).............. 18

Pennsylvania v. Muniz, 110 S.Ct. 2638................ 24

iV

TABLE OF AUTHORITIES - Continued

Page

People v. Trujillo, 773 P.2d 1086 (Colo. 1989) ......... 21

Rhode Island v. Innis, 446 U.S. 291 (1980) aah adeene 20

Schneckloth v. Bustamonte, 412 U.S. 238 (1973)........ 21

Shea v. Louisiana, 470 U.S. 51 (1985).............. 15, 18

Smith v. Illinois, 469 U.S. 91 (1984)........... 14, 15, 19

Solem v. Stumes, 465 U.S. 638 (1984)................. 15

Tollett v. Henderson, 411 U.S. 258 (1973) ............. 20

United States v. Skinner, 667 F.2d 1306 (9th Cir.

1982), cert. denied 463 U.S. 1229 (1983) ............ 21

CONSTITUTION AND STATUTES:

U.S. Const.:

CGE “Oo ccctecascccssacnadécnionen gesceseces passim

PURGRE: GEG s 60seccee succenccenscessdsdacideanens 18

District of Columbia Youth Rehabilitation Amend-

ment Act of 1985, D.C. Code Ann. §24-803(e)

GR sc cncunsdccnsnnuecdseueeseensounasenbucsaseer 2

D.C. Code §33-541(c)(1)(A) (1990 Supp.).............. 9

MIscELLANEOUs:

nk. Tapes GO. GOR. BRD Tei vcccsccccucccckenaces 22

OPINION BELOW

The opinion of the District of Columbia Court of

Appeals (Res. App. A, la-18a) is reported at 592 A. 2d

985.

e

JURISDICTION

The judgment to the court of appeals was entered on

May 31, 1991. A petition for rehearing was denied on

November 25, 1991. Pet. App. 34a-35a. On February 11,

1992, the Chief Justice extended the time for filing a

petition for a writ of certiorari to and including March 24,

* 1992. The petition was filed on March 20, 1992, and was

granted on May 18, 1992. The jurisdiction of this Court

rests on 28 U.S.C. 1257.

«

CONSTITUTIONAL PROVISION INVOLVED

The Fifth Amendment to the Constitution provides,

in part: “No person * * * shall be compelled in any

criminal case to be a witness against himself.”

s

STATEMENT OF CASE

On July 18, 1989, officers of the District of Columbia

Metropolitan Police Department arrested respondent

Lowell Green on drug charges. The officers gave respon-

dent a printed advice-of-rights form known as a “PD 47.”

In response to the printed question whether he was will-

ing to talk to the police without having an attorney

present, respondent wrote “no.” The officers did not

attempt to question him. Res. App. 2a.

Respondent appeared in court the following day, and

an attorney was appointed to represent him. On July 28,

1989, the drug charges were dismissed at the preliminary

hearing. Respondent remained in custody because of an

unrelated juvenile matter. Res. App. 2a.

In August 1989, respondent was indicted on charges

of possessing a controlled substance with intent to dis-

tribute it arising out of respondent's July 18, 1989, arrest.

On September 27, 1989, he entered a plea of guilty to the

lesser included offense of attempted possession of a con-

trolled substance with intent to distribute it. Res. App. 2a.

Respondent remained in custody awaiting sentencing

on the drug charge.' On January 4, 1990, a Metropolitan

Police Department detective obtained an arrest warrant

charging respondent with the unrelated 1988 murder of

Cheaver Herriott. Also on January 4, 1990, an order was

obtained by the United States Attorney’s Office requiring

the United States Marshal to release the respondent from

custody to an Officer of the Metropolitan Police Depart-

ment for the purpose of booking, fingerprinting, photo-

graphing and processing the respondent on the murder

charge and at the conclusion of that processing to return

' Respondent was held in the Youth Center at Lorton

Reformatory while a study was performed to determine his

suitability for treatment under the District of Columbia Youth

Rehabilitation Amendment Act of 1985. Res. App. 2a; see D.C.

Code Ann. §24-803(e) (1989). On February 26, 1990, respondent

was sentenced to 15 months’ incarceration under the Youth

Rehabilitation Act. Res. App. 2a.

the respondent “forthwith” to the custody of the United

States Marshal.

At the motions hearing the respondent testified that

at around 4:00 a.m. on January 5, 1990, the respondent

was taken from his sleep and transported to the Superior

Court of the District of Columbia arriving there at

approximately 6:00 a.m. Res. App. C 56. Respondent was

held in the courthouse until 10:17 a.m. at which time two

police officers took him into their custody. According to

the respondent he was then placed in a paddy wagon

where he waited approximately 10 minutes and was then

transported to 309 Indiana Avenue, Washington, D.C.

Respondent waited in the paddy wagon at 300 Indiana

Avenue for approximately 30 minutes and was then

transported back to the Superior Courthouse. Respondent

waited in the paddy wagon at the Superior Courthouse

for approximately 30 minutes and was then transported

again to 300 Indiana Avenue where he waited an addi-

tional 30 minutes and was then taken to the Homicide

Branch of the Metropolitan Police. Res. App. C 58-60.

At the motions hearing the respondent also testified

that upon entering the Homicide Branch he asked the

police officer for his attorney. Res. App. C 60. No lawyer

was provided. The police officer directed the respondent

to “sign this,” referring to a PD 47 rights card. Res. App.

C 61-62. The detective told him, “You can make this hard

on yourself or make it easy. We got you for Kevin Henson

too, you are a suspect in that case. If you don’t tell us

something about Jamaican Tony, you are going to get

charged for both of these cases.” Res. App. C, p. 62. The

respondent was afraid. He agreed to waive his rights and

make a statement.

Respondent was indicted for murder. He moved to

suppress his confession, claiming that it was involuntary

and that it had been obtained in violation of Edwards v.

Arizona, 451 U.S. 477 (1981).

The trial court initially denied respondent’s motion.

Res. App. B 19a-30a. The court first rejected respondent's

contention that his confession was involuntary. After

hearing testimony from Detective Donald Gossage of the

Metropolitan Police Department concerning the circum-

stances surrounding respondent’s waiver of his Miranda

rights, the trial court found that “as between those two

accounts, that is the account given by [respondent] and

Detective Gossage, the Court credits Detective Gossage’s

account.” Res. App. B 20a. The trial court stated:

Having make this credibility finding which

leads the Court to conclude that [respondent]

was brought to the Homicide Office of the police

department, was given his Miranda Rights in

the way in which Detective Gossage testified

' they were given on the stand, that [respondent]

understood his rights and that he appreciated

them and thereafter waived them, the Court

finds no basis to suppress any of these state-

ments on the ground that they were given in

violation of Miranda or were involuntarily

made.

Id. at 2la-22a.

With respect to respondent's Edwards claim, the court

noted that an “extraordinary amount of time” had

elapsed between respondent's invocation of his right to

counsel and his confession, and that respondent had had

an opportunity to consult with counsel during that time.

Res. App. B 25a. Under those circumstances, the court

concluded that “none of the reasons which underlie the

[Supreme] Court's decision[s] which have addressed a

criminal defendant's right to [counsel] under the [Sixth]

Amendment and his right not to incriminate himself

under [Fifth] Amendment, would be served by suppres-

sion of these statements.” Id. at 26a.

Five days after the trial court’s ruling, this Court

decided Minnick v. Mississippi, 111 S.Ct. 486 (1990). In

light of that decision, the trial court reconsidered its

ruling on respondent’s Edwards claim and ordered that

respondent’s confession be suppressed. The trial court

stated:

The Court is of the view that with the latest

pronouncement from the Supreme Court, the

highest Court of this land, given its interpreta-

tion of the decisions which preceded the case of

Arizona vs. Edwards, (sic) that the decision

requires suppression of the statement; that the

Supreme Court has set up, as mandated, a

brigiit, quote, unquote, bright line test, and that

is one of the problems, in my view of bright line

tests. They kind of do not permit for the type of

individual consideration of the facts * * * .

The record is clear as to what the Court has

found to be the case here. And | suppose what is

required is that whenever a person is in custody,

the police must check to see whether counsel

has been appointed, and then before question-

ing that person, confer with counsel.

I believe that the Minnick Case requires this

result, and so the Court reverses its ruling made

on Friday and grants the motion, the defense

motion to suppress the ~ all of the statements

which were under consideration, both the oral

statements to Detective Gossage, as well as the

videotape memorialization of it. That’s the

Court’s decision.

Res. App. B 3la-32a.

The District of Columbia Court of Appeals affirmed.

Res. App. A la-18a. They “conclude[d] that the Supreme

Court's teachings in this area so far do not countenance a

departure from the’ “bright-line” rule of Edwards in the

present circumstances.” Res. App. A 2a. In explaining its

conclusion the court stated that:

“Preserving the integrity of an accused’s choice

to communicate with police only though counsel

is the essence of Edwards and its progeny.” Pat-

terson v. Illinois, 487 U.S. 285, 291, 108 S.Ct. 2389,

2394, 101 L.Ed.2d 261 (1988). The Court has

further explained that “[t]he merit of the

Edwards decision lies in the clarity of its com-

mand and the certainty of its application,” Min-

nick, 111 S.Ct. at 490; “the Edwards rule provides

‘clear and unequivocal’ guidelines to the law

enforcement profession,” id (citation and addi-

tional quotation marks omitted), and it “con-

serves judicial resources which would otherwise

be expended in making difficult determinations

of voluntariness.” Id. at 489.

Res. App. A 5a-6a..

In reaching this conclusion the Court acknowledged

that the respondent’s case differed from Edwards and

other cases decided by this Court in several ways.

First, that the “police reinitiated questioning only

after the defendant had been furnished counsel and con-

sulted with him in the drug case, and that the renewed

questioning concerned a crime entirely unrelated to the

one regarding which the defendant had refused to talk

without counsel.” Res. App. A 6a-7a. The court noted,

however, that the second factor was present in Minnick,

and the first factor was present in Arizona v. Roberson, 486

U.S. 675 (1988). The court rejected the government's

reliance on those factors. In the court’s view, to admit the

challenged evidence in this case would require that Min-

nick and Roberson be “narrow[ed] * * * to their individual

settings.” Res. App. A 7a. The court went on to state that:

** * if Edwards, Roberson, and Minnick together

teach anything, it is the need for great caution in

finding distinctions among cases all involving

the paradigmatic original request by the accused

for counsel, reflecting “his own view that he is

not competent to deal with the authorities with-

out legal advice,” Roberson, 486 U.S. at 681, 108

S.Ct. at 2098 (citation omitted). The Supreme

Court having made clear that police-initiated

questioning about a separate offense and ques-

tioning after opportunity to consult counsel

each fails to justify departure from Edwards’

“bright-line, prophylactic * * * rule,” id. at 682,

108 S.Ct. at 2098, we are not convinced that in

combination the Court would regard these two

factors differently.

Res. App. A 8a.

Second, the court recognized that this case differs

from the Edwards line of cases because there was a five-

month interval between respondent’s invocation of the

Edwards right to counsel and the subsequent interroga-

tion. Res. App. A 8a-12a. The court stated that “[t}here is

no question” that the danger of police badgering that the

Edwards rule is designed to prevent “is reduced when the

police have made no effort to interrogate the defendant

for more than five months after his assertion of rights.”

Id. at 8a-9a. Although the court viewed this argument as

“substantial” it stated that “there are weighty consider-

ations on the other side of the ledger as well.” Res. App.

9a. In explaining the court noted:

In Minnick, although the relevant interval was

only a matter of days, the Court emphasized

“the coercive pressures that accompany custody

and that may increase as custody is prolonged.”

111 S.Ct. at 491 (emphasis added). Moreover,

except for his ongoing contacts with his custo-

dial caretakers, we must assume that [respon-

dents]’s only contact with law enforcement

officials (investigators and prosecutors) during

this period was through, or in the presence of,

his attorney. Hence there is nothing in the lapse

of time itself from which to deduce that his

original belief in his vulnerability to the pres-

sures of custodial interrogation had diminished

as he progressed through the steps of pleading

guilty to the (lesser included) offense of

attempted drug distribution; it is just as likely

that his sense of dependence on, and trust in,

counsel as the guardian of his interests in deal-

ing with government officials intensified.

Furthermore, with the government's argu-

ment based upon lapse of time we are again met

with the Supreme Court’s insistence that the

Edwards rule be kept “clear and unequivocal.”

Res. App. A 9a-10a. Footnote omitted.

Third, the court recognized that before the interroga-

tion, respondent pleaded guilty to the offense with which

he was charged when he invoked the Edwards right. Res.

App. A 12a-14a. The court noted that this “might seem to

be [the government's] most potent argument . . . one that

promises adherence to the requirement of some form of

bright-line rule.” Res. App. A 12a. However, the court

identified the actual issue as “whether by pleading guilty

in the drug case defendant can be said to have ‘reopened

the dialogue with the authorities’ within the meaning of

Edwards, 451 U.S. at 486 n. 9, 101 S.Ct. at 1885, n. 9 so as

to validate his waiver of rights and interrogation on the

murder charge.” Res. App. B 13a. The court concluded

that the:

[Respondent] pled guilty with the advice and

assistance of counsel. Hence while the knowing

and voluntary plea presumable demonstrated

that acceptance of personal responsibility and

not the pressures of custody caused him to -

incriminate himself, it also was consistent with

his original election to deal with government

officials only through an attorney. Indeed, from

[respondent]’s viewpoint the fact that counsel

had negotiated a plea to a lesser charge sparing

him a mandatory-minimum sentence, D.C. Code

§33-541(c)(1)(A) (1990 Supp.), would only have

confirmed the wisdom of his choice to insist on

the shield of legal representation. If [respon-

dent] had other criminal involvement to con-

ceal, or if he merely feared that he would be

wrongly implicated in crimes committed by

someone else, in either case we must assume he

chose the shelter afforded by Miranda and

Edwards to insure that the coercive pressures of

10

custody did not cause him to incriminate him-

self. [Respondent)’s plea of guilty in the drug

case, because it is consistent with his election to

communicate with the police only through

counsel, cannot be the pivotal break in events

that Edwards demands before a waiver can be

regarded as an initial election by the accused to

deal with the authorities on his own.

Id. at 13a-14a.

¢

SUMMARY OF ARGUMENT

Miranda v. Arizona, Edwards v. Arizona, Arizona v.

Roberson, and Minnick v. Mississippi established a series of

prophylactic rules designed to protect the Fifth Amend-

ment privilege against compelled self-incrimination in

the context of custodial interrogation. The Court has justi-

fied the creation of each of those rules on the ground that

it protects the suspect against the inherently coercive

pressures of interrogation in a police-dominated setting.

This case presents three facts not explicitly addressed by

the Court in Miranda, Edwards, Roberson, or Minnick. The

petitioner seeks to dim or eliminate the “bright-line rule”

established in Miranda, Edwards, Roberson, and Minnick

because of these differences. Because the differences in

these cases are insignificant, or have been already

addressed by the Court the “bright-line rule” should not

be changed.

First, the respondent entered a plea of guilty to the

charge that prompted his invocation of the Edwards right

to counsel before the police initiated interrogation. The

respondent’s waiver of his Fifth Amendment privilege

11

was done in the presence of and with the assistance of

counsel. In pleading guilty to one offense the respondent

did not waive his right to counsel to other offenses which

he may have committed. The waiver to the Fifth Amend-

ment in the context of a guilty plea cannot be construed

as a waiver of his original advice to the authorities that

he is not capable of dealing with the authorities without

the assistance of counsel. The guilty plea therefore does

not reopen the dialogue with the police.

Second, more than five months elapsed between

respondent’s assertion of the Edwards right to counsel

and the initiation of interrogation by the police. The five

month period of incarceration increased the pressures on

the respondent making him more vulnerable to the coer-

cion that can accompany custodial interrogation. An

additional problem associated with incarceration is the

tendency of the inmate to become institutionalized to the

point where he responds affirmatively to all instructions

of the authorities. Finally, any change in the “bright-line

rule” that would make it dependent on the length of time

between the request for counsel and the reinitiation of

questioning would dim or eliminate the “bright-line

rule.”

Third, although this case differs minutely from Ari-

zona v. Roberson and Minnick v. Mississippi, the differ-

ence(s) have already been addressed in those cases when

those two cases are read together and nothing in this case

should cause a change in the “bright-line rule.” This case

presents a situation where the defendant invokes his

Edwards right, speaks with counsel and later is

approached about a crime unrelated to the crime in which

he asserted his Edwards right. In Arizona v. Roberson, the

12

suspect requested counsel and was reinterrogated before

he had the opportunity to speak with counsel. In Minnick

‘ y. Mississippi, the suspect asserted his Edwards right was

_Ppermitted to speak with counsel and was later interro-

gated about a different offense. When read together

Roberson and Minnick address the set of circumstances of

this case. Nothing in these two factual differences are

sufficient to distinguish them from Roberson and Minnick

and therefore cause a change in this Court’s “bright-line

rule.”

¢

ARGUMENT

THE “BRIGHT-LINE RULE” ESTABLISHED BY

EDWARDS V. ARIZONA, SHOULD NOT BE CHANGED

TO PERMIT LAW ENFORCEMENT OFFICERS TO INI-

TIATE INTERROGATION OF A SUSPECT WHO HAS

INVOKED HIS RIGHT TO COUNSEL FIVE MONTHS

PREVIOUSLY IN CONNECTION WITH AN UNRE-

‘LATED OFFENSE, WHERE THE SUSPECT CON-

SULTED WITH COUNSEL AND PLEADED GUILTY

TO THE UNRELATED OFFENSE PRIOR TO THE

INTERROGATION

In Miranda v. Arizona, 384 U.S. 436 (1966), the Court

held that, prior to interrogation of a defendant who is in

custody “or otherwise deprived of his freedom of action

in any significant way,” id. at 444 the police must warn

him (1) that he has a right to remain silent; (2) that any

statement he makes may be used as evidence against him;

(3) that he is entitled “to consult with a lawyer and to

have a lawyer with him during interrogation,” id. at 471;

(4) that an attorney will be appointed to represent him if

13

he cannot afford to retain one; and (5) that he may exer-

cise any of these rights at any point during the interroga-

tion. The Court went on to say that once an individual in

cuStody invokes his right to counsel, interrogation “must

cease until an attorney is present” at that point “the

individual must have an opportunity to confer with the

attorney and to have him present during any subsequent

questioning.” Id. at 474.

Edwards v. Arizona, 451 U.S. 477 (1981) gave force to

the holding in Miranda finding it “inconsistent with Mir-

anda and its progeny for the authorities, at their instance,

to reinterrogate an accused in custody if he has clearly

asserted his right to counsel.” 451 U.S., at 485. In Edwards,

the defendant invoked his right to counsel under Miranda

after his arrest on state criminal charges. Id. at 478-479.

The defendant was kept in custody and was not provided

with counsel; the next day the police returned and

attempted to interrogate him, despite his statement that

he did not wish to speak with the police. Jd. at 479. The

defendant ultimately made an incriminating statement

regarding his involvement in the offenses for which he

had been arrested. The Court stated that “when an

accused has invoked his right to have counsel present

during custodial interrogation, a valid waiver of that

right cannot be established by showing only that he

responded to further police-initiated custodial interroga-

tion even if he has been advised of his rights:” Id. at 484.

Further this Court held that an accused who requests an

attorney, “having expressed his desire to deal with the

police only through counsel, is not subject to further

interrogation by the authorities until counsel has been

14

made available to him, unless the accused himself initi-

ates further communication, exchanges, or conversations

with the police.” Id. at 484-485.

Edwards is “designed to prevent police from badger-

ing a defendant into waiving his previously asserted

Miranda rights.” Michigan v. Harvey, 494 U.S. __, __, 110

S.Ct. 1176 (1990). See also, Smith v. Illinois, 469 U.S. 91, 98

(1984).

‘ Following the prophylactic rule announced in

Edwards this Court has decided two cases expanding the

scope of the rule. The first of these cases is Arizona v.

Roberson, 486 U.S. 675 (1988). In Roberson the defendant

invoked his right to counsel after his arrest on a burglary

charge. The defendant remained in custody and was not

provided with an attorney; three days later, after again

advising him of his Miranda rights, the police interro-

gated him about a different burglary. The Roberson Court

stated:

The Edwards corollary that if a suspect believes

that he is not capable of undergoing such ques-

tioning without advice of counsel, then it is

presumed that any subsequent waiver that has

come at the authorities’ behest, and not at the

suspect's own instigation, is itself the product of

the “inherently compelling pressures” and not

the purely voluntary choice of the suspect. As

Justice WHITE has explained, “the accused hav-

ing expressed his own view that he is not com-

petent to deal with the authorities without legal

advice, a later decision at the authorities’ insis-

tence to make a statement without counsel's

15

presence may properly be viewed with skepti-

cism.” Michigan v. Mosley, 423 U.S. 96, 110, n. 2,

96 S.Ct. 321, 829, n.2 (concurring in result).

Id. at 681-682

The Miranda and Edwards decisions have created a

“bright-line rule” and this Court has “repeatedly empha-

sized the virtues of a bright-line rule in cases following

Edwards as well as Miranda.” Arizona v. Roberson, 108

S.Ct. 2098, and that the Court “like[s] them to be ‘clear

and ynequivocal,’” McNeil v. Wisconsin, 111 S.Ct. 2204

(1991). See also Michigan v. Jackson, 475 U.S. 625, 634

(1986); Smith v. Illinois, 469 U.S. 91, 98 (1984) (per curiam);

Solem v. Stumes, 465 U.S. 638, 646 (1984); see also Shea v.

Louisiana, 470 U.S. 51 (1985); Oregon v. Bradshaw, 462 U.S.

1039, 1044 (1983) (plurality opinion) (Rehnquist, J.). In

Fare v. Michael C., 442 U.S. 707 (1979) Court explained:

* * * relatively rigid requirement that interroga-

tion must cease upon the accused’s request for

an attorney * * * has the virtue of informing

police and prosecutors with specificity as to

what they may do in conducting custodial inter-

rogation, and of informing courts under what

circumstances statements obtained during such

interrogation are not admissible. This gain in

specificity, which benefits the accused and the

State alike, has been thought to outweigh the

burdens that the decision in Miranda imposes on

iaw enforcement agencies and the courts by

requiring the suppression of trustworthy and

highly probative evidence even though the con-

fession might be voluntary under traditional

Fifth Amendment analysis.

Id. at 718.

16

In Roberson the Court stated:

*** The Edwards rule thus serves the purpose of

providing “clear and unequivocal” guidelines to

the law enforcement profession. Surely there is

nothing ambiguous about the requirement that

after a person in custody has expressed his

desire to deal with the police only through

counsel, he “is not subject to further interroga-

tion 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.”

Id. 486 U.S. 682.

The necessity of the bright-line rule in Edwards and

the per se aspect of Miranda was explained by the Court in

Roberson citing Fare v. Michael C., 442 U.S. 707 (1979):

The rule in Miranda . . . was based on this

Court's perception that the lawyer occupies a

critical position in our legal system because of

his unique ability to protect the Fifth Amend-

ment rights of a client undergoing custodial

interrogation. Because of this special ability of

the lawyer to help the client preserve his Fifth

Amendment rights once the client becomes

enmeshed in the adversary process, the Court

found that ‘the right to have counsel present at

the interrogation is indispensable to the protec-

tion of the Fifth Amendment privilege under the

system’ established by the Court. [384 U.S.], at

469 [86 S.Ct., at 1625]. Moreover, the lawyer's

presence helps guard against overreaching by

the police and ensures that any statements actu-

ally obtained are accurately transcribed for pre-

sentation into evidence. Id., at 470 [86 S.Ct., at

1625-1626].

17

“The per se aspect of Miranda was thus

based on the unique role the lawyer plays in the

adversary system of criminal justice in this

country.” 442 U.S. at 719, 99 S.Ct., at 2568-2569.

Id. 486 U.S. 682 n. 4.

The second of the cases to expand the scope of

Edwards was Minnick v. Mississippi, 111 S.Ct. 486 (1990).

Where Roberson considered the unfulfilled request for

counsel Minnick addressed the issue of the Fifth Amend-

ment where the defendant had been afforded the oppor-

tunity to speak with counsel. In Minnick, the defendant

invoked his right to counsel after he was arrested on a

murder warrant. The defendant then had an opportunity

to consult with an attorney although he remained in

custody. Three days later, the police interviewed the

defendant again about the murder where he eventually

gave an incriminating statement. The Court suppressed

the statements holding that “* * * the Fifth Amendment

protection of Edwards is not terminated or suspended by

consultation with counsel.” Id. at 489 and that “In con-

text, the requirement that counsel be ‘made available’ to

the accused refers to more than an opportunity to consult

with an attorney outside the interrogation room.” Id. at

490. The Court emphasized that “counsel's presence at

interrogation is not unique to Edwards. It derives from

Miranda, where we said that in the cases before us “[t}he

presence of counsel * * * would be the adequate protective

device necessary to make the process of police interroga-

tion conform to the dictates of the [Fifth Amendment]

privilege. His presence would insure that statements

made in the government-established atmosphere are not

the product of compulsion” Id. at 490. See also Fare v.

18

Michael C. supra 442 U.S., at 719. See also Oregon v.

Bradshaw, supra where the Court described the holding of

Edwards to be “that subsequent incriminating statements

made without [Edwards] attorney present violated the

rights secured to the defendant by the Fifth and Four-

teenth Amendments to the United States Constitution.”

Id. 462 U.S. 1039, 1043. See also Shea v. Louisiana, 470 U.S.

51, 52 (1985); Patterson v. Illinois, 487 U.S. 285 (1988).

Over fifty years ago in Johnson v. Zerbst, 304 U.S. 458

(1938) the Court stated that you should “indulge every

reasonable presumption against waiver of fundamental

constitutional rights.” Id., at 464. In Michigan v. Jackson

475 U.S. 625 the Court said that “Doubts must be resolved

in favor of protecting the constitutional claim. This set-

tled approach to questions of waiver requires us to give a

broad, rather than a narrow, interpretation to a defen-

dant’s request for counsel.” Id., at 475 U.S. 633. In

addressing the waiver issue the Court in Edwards v. Ari-

zona, supra, stated:

It is reasonably clear under our cases that

waivers of counsel must not only be voluntary,

but must alse constitute a knowing and intel-

ligent relinquishment or abandonment of a

known right or privilege, a matter which

depends in each case “upon the particula ‘acts

and circumstances surrounding that case,

including the background, experience and con-

duct of the accused.

Id., at 451 U.S. 482. See also Faretta v. California, 422 US. —

806 (1975); North Carolina v. Butler, 441 U.S. 359, 374-375

(1979); Brewer v. Williams, 430 U.S. 387, 405 (1977); Fare v.

19

Michael C., 442 U.S. 707, 724-725 (1979). Indeed, the ulti-

mate holding in Edwards was “that when an accused has

invoked his right to have counsel present during custo-

dial interrogation, a valid waiver of that right cannot be

established by showing only that he responded to further

police-initiated custodial interrogation even if he has

been advised of his rights.” 451 U.S. 484.

1. The Edwards rule, like other applications of Mir-

anda “is not itself required by the Fifth Amendment's —

prohibition on coerced confessions, but is instead justi-

fied only by reference to its prophylactic purpose* * *”

Connecticut v. Barrett, 479 U.S. 523, 528 (1987). The Court

has repeatedly stated that the justification for the pro-

phylactic rules established in Edwards and the cases fol-

lowing it is the need to “prevent police from badgering a

defendant into waiving his previously asserted Miranda

rights.” McNeil v. Wisconsin, 111 S.Ct. 2204, 2208 (1991)

(quoting Michigan v. Harvey, 494 U.S. 344, 350 (1990)); see

Minnick v. Mississippi, 111 S.Ct. at 489; Smith v. Illinois, 469

U.S. 91, 98 (1984); Oregon v. Bradshaw, 462 U.S. 1039, 1044

(1983). The concern underlying the Edwards rule is that

“liJn the absence of such a bright-line prohibition, the

authorities through ‘badger[ing]’ or ‘overreaching’ -

explicit or subtle, deliberate or unintentional - might

otherwise wear down the accused and persuade him to

incriminate himself notwithstanding his earlier request

for counsel's assistance.” Smith v. Illinois, 469 U.S. 91, 98.2

? The Miranda Court reviewed the techniques of persuasion

and the psychological ploys listed, and specifically encouraged,

in police policy manuals to increase the number of confessions.

Miranda v. Arizona, 384 U.S. at 449-54. The Court concluded that

20

Relying on three separate factors “Taken singly or in

conjunction” Pet. Brief 14. The petitioner seeks to dim or

eliminate the “bright-line rule” of Edwards.

a. First, the petitioner argues, this case differs from

the Court’s previous Edwards cases because the respon-

dent, after he requested counsel in the drug case but

before he was interrogated about the murder, entered a

plea of guilty to the drug charge that had prompted his

invocation of the Edwards right to counsel.

A guilty plea “represents a break in the chain of

events which has preceded it in the criminal process,”

Tollett v. Henderson, 411 U.S. 258, 267 (1973) and consti-

tutes a waiver of the Fifth Amendment right not to be

compelled to incriminate oneself. Boykin v. Alabama, 395

U.S. 238, 243 (1969); McCarthy v. United States, 394 US.

459, 466 (1969). Edwards itself does not make its pro-

phylactic ban permanent. The accused can lift it by rein-

itiating conversation with the police about the crime. It is

also true that the Edwards’ presumption of involuntary

waiver fades when the accused is released from custody.

“the very fact of custodial interrogation exacts a heavy toll on

individual liberty and trades on the weakness of the individ-

uals.” Id. at 455 (footnote omitted). See also Illinois v. Perkins,

110 S.Ct. 239 (1990) (confirming the necessity of Miranda's pro-

tections during custodial interrogation); Rhode Island v. Innis,

446 U.S. 291, 299 (1980) (construing broadly “techniques of

[plersuasion” as “interrogation” because “[t}he concern of the

Court in Miranda was that the ‘interrogation environment’ cre-

ated by the interplay of interrogation and custody would ‘subju-

gate the individual to the will of his examiner’ and thereby

undermine the privilege against compulsory self-incrimina-

tion”).

21

E.g. Dunkins v. Thigpen, 854 F.2d 394, 397 (11th Cir. 1988)

cert. denied 489 U.S. 1059 (1989); United States v. Skinner,

667 F.2d 1306, 1309 (9th Cir. 1982), cert. denied 463 U.S.

1229 (1983); People v. Trujillo, 773 P.2d 1086, 1091-92 (Colo.

1989) (en banc).? Nevertheless, the real question is

whether by pleading guilty in the drug case the respon-

dent can be said to have “reopened the dialogue with the

authorities” within the meaning of Edwards, 451 U.S. at

486 n. 9, 101 S.Ct. at 1885, n. 9, so as to validate his

waiver of rights and interrogation on the murder charge.*

Guilty pleas are accepted in accordance with Rule 11 of

the District of Columbia Rules of Criminal Procedure.

Nothing in a Rule 11 colloquy would indicate to the

3 The petitioner argues that “[t]he ‘break in custody’ cases

are merely specific examples of a broader point: the irrebuttable

presumption from Edwards should not apply when there is a

significant change in the accused status prior to the interroga-

tion. “ ** * Where the status of the accused has changed dramat-

ically, as it does once he is released from custody or after an

adjudication of guilt (whether after a guilty plea or after trial),

the assumption that he wishes to have the assistance of counsel

in all of his dealings with the police is much less compelling.”

Pet. Brief 17. This argument ignores the fact that the person who

has pleaded guilty to an offense is now much more vulnerable

to the authorities. A person having pleaded guilty and who is

now awaiting sentencing is as much dependent on his attorney

then he was prior to his plea. He is dependent on his attorney to

argue for the lightest sentence possible and otherwise assist him

at sentencing.

4 “Guilty pleas have been carefully scrutinized to deter-

mine whether the accused knew and understood all the rights to

which he would be entitled at trial, and that he had intentionally

chosen to forgo them. Schneckloth v. Bustamonte 412 U.S. 238, 93

S.Ct. 2041 (1973) (emphasis supplied).

22

respondent that he is waiving his Fifth Amendment privi-

lege except in the context of that case.° Clearly the entry

of the guilty plea with his attorney present is consistent

5 Rule 11(c) of the District of Columbia Rules of Criminal

Procedure states.

(c) Advice to defendant. Before accepting a plea of

guilty or nolo contendere, the Court must address the

defendant personally in open court and inform the

defendant of, and determine that the defendant

understands, the following:

(1) The nature of the charge to which the plea is

offered, the mandatory minimum penalty provided

by the law and, when applicable, that the Court may

also order the defendant to make restitution to any

victim of the offense; and

(2) If the defendant is not represented by an

attorney, that the defendant has the right to be repre-

sented by an attorney at every stage of the proceed-

ings and, if necessary, one will be appointed to

represent the defendant; and

(3) That the defendant has the right to plead not

guilty or to persist in that plea if it has already been

made, the right to be tried by a jury and at that trial

the right to the assistance of counsel, the right to

confront and cross examine adverse witnesses, and

the right against compelled self-incrimination; and

(4) That if a plea of guilty or nolo contendere is

accepted by the Court there will not be a further trial

of any kind, so that by pleading guilty or nolo conten-

dere the defendant waives the right to a trial; and

(5) If the Court intends to question the defen-

dant under oath, on the record, and in the presence of

counsel about the offense to which the defendant has

pleaded, that the defendant’s answers may later be

used against the defendant in a prosecution for per-

jury or false statement.

23

with his original desire to deal with the government

through his attorney.

b. The second factor that the petitioner feels distin-

guishes that case from previous Edwards decisions is the

five month interval between the respondent's invocation

of his request for counsel and the subsequent interroga-

tion. Admittedly Edwards is “designed to prevent police

from badgering a defendant into waiving his previously

asserted Miranda rights,” Minnick, 111 S.Ct. at 489, and

that that danger is reduced when the police have made

no effort to interrogate the defendant for more than five

months after his assertion of rights. In Minnick, although

the relevant interval was only a matter of days, the Court

emphasized “the coercive pressures that accompany cus-

tody and that may increase as custody is prolonged.” 111

S.Ct at 491. As the Court of Appeals correctly noted:

* * * Moreover, except for his ongoing contacts

with his custodial caretakers, we must assume

that [respondent]’s only contact with law

enforcement officials (investigators and prose-

cutors) during this period was through, or in the

presence of, his attorney. Hence, there is nothing

in the lapse of time itself from which to deduce

that his original belief in his vulnerability to the

pressures of custodial interrogation had dimin-

ished as he progressed through the steps of

pleading guilty to the (lesser included) offense

of attempted drug distribution; it is just as likely

that his sense of dependence on, and trust in,

counsel as the guardian of his interests in deal-

ing with government officials intensified.

Res. App. 10a.

24

As previously stated (Note 3, supra) having pleaded

guilty the respondent is now more vulnerable to the

authorities. He is placed in the position where, while

awaiting sentencing, his actions can control the sentence

the judge imposes. A negative report from the Pre-sen-

tence report writer, the government or his custodians

could well result in a longer sentence or the difference

between a probationary sentence or incarceration. At the

motions hearing the respondent testified that his daily

routine included “go[ing] to my programs as in schooling

and go to see my C and P officer as — to see if | am going

to be recommended the Youth Act or recommended for

probation.” Res. App. C-56.°

Additionally, the prolonged incarceration of the

respondent leads to an additional problem. As custody is

prolonged the respondent becomes institutionalized by

the incarceration. The respondent is told when to get up,

when to sleep, when to eat, when to bathe. All his move-

ments are controlled by the prison officials. In this atmo-

sphere the person would feel compelled to continue to

abide by the instructions of those in authority.

Finally, the petitioner’s argument that the lapse of

time distinguishes this case would eliminate the “bright-

line rule” that the Court has created and this Court has

¢ Compare this situation to the “cruel trilemma of self-

accusation, perjury or contempt,” that this Court said faced the

suspect in Pennsylvania v. Muniz, 110 S.Ct. 2638 (1990). Muniz

was stopped for drunk driving and was asked to answer ques-

tions regarding the date of his sixth birthday which he could not

remember. This Court found that the answer to that question

was testimonial in nature and that since he had not been

advised of his Miranda rights it was inadmissible.

25

“repeatedly emphasized the virtues of a bright-line rule

in cases following Edwards as well as Miranda. Arizona v.

Roberson, 108 S.Ct. 2098 and that the Court “like[s] them

to be ‘clear and unequivocal,’ ” McNeil v. Wisconsin, 111

S.Ct 2204 (1991).”

c. Finally, the petitioner argues that this case differs

from the Court's earlier Edwards rulings because respon-

dent was approached by the police concerning the mur-

der only after his previous request for counsel in

connection with the drug offense had been honored.

Respondent was provided with counsel and had consul-

_ted with his lawyer months before the police sought to

question him about the murder, which was wholly unre-

lated to the drug charge that had prompted his invoca-

tion of the Edwards right. The distinction relied upon is

that in Arizona v. Roberson the police reinitiated interroga-

tion without honoring the suspect’s request for counsel

and in Minnick v. Mississippi the renewed interrogation

concerned the same offense that had prompted the sus-

pect’s invocation of the right to counsel. Minnick and

Roberson read together must control this case. This dis-

tinction that the petitioner relies upon was addressed by

the Court of Appeals.

7 In their brief as Amicus Curiae, the District of Columbia

proposes that in situations where the suspect has asserted his

right to counsel and a sufficient period of time has elapsed since

the assertion of the right that the police be permitted to interro-

gate the suspect on a different offense after fully advising him of

his Miranda rights. The validity of the waiver would be deter-

mined on the totality of the circumstances. This proposal would

eliminate, entirely, the “bright-line rule” in those situations

involving questioning on two separate offenses.

26

But if Edwards, Roberson and Minnick together

teach anything, it is the need for great caution in

« finding distinctions among cases all involving

the paradigmatic original request by the accused

for counsel, reflecting “his own view that he is

not competent to deal with authorities without

legal advice,”: Roberson, 486 U.S. at 6811, 108

S.Ct. at 2098 (citation omitted). The Supreme

Court having made clear that police initiated

“Questioning about a separate offense and ques-

tioning after opportunity to consult counsel

each fails to justify departure from Edwards’ “

bright-line, prophylactic * * * id. at 682, 108 S.Ct.

at 2098, we are not convinced that in combina-

tion the Court would regard these two factors

differently.

Res. App. A Ba.

2. Nothing in the facts of this case significantly

distinguish it from Edwards, Roberson, or Minnick. In those

cases the Court has established a “bright-line rule” to

clearly and unequivocally tell police officers that after a

suspect has stated that he is unwilling to talk to the police

without an attorney present that questioning must cease

until an attorney is present. The rule recognizes the

importance that an attorney plays in the adversarial pro-

cess and the dangers inherent in custodial interrogation.

The costs associated with this rule are minor. If this case

extends Edwards at all it would only be in the situation

where a suspect has indicated his desire to deal with the

police only through counsel and the suspect has been in

continuous custody since announcing that desire. On the

other hand it maintains the clarity of the Court’s “bright-

line rule.”

27

CONCLUSION

“The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

Josern R. Contre

Bonp, Conte & Norman, PC.

601 Pennsylvania Avenue, N.W

Suite 900

Washington, D.C. 20001

(202) 638-4100