# Respondents Brief — United States v. Green

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1993
- **Citation:** 507 U.S. 545

## Text

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

Ciptelams BONG oc ccc cccnnvcevsnsecssesccsscececsss 1
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0255%3A06. Public record. Not legal advice.