Amicus Curiae Brief — United States v. Green

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NO, 91-1521 |

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THE UNITED STATES

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_- SUPREME COURT OF

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‘S .UMITED STATES OF AMERICA, Petitioner,

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TABLE OF CONTENTS

Table of Authorities ........ ii

Interests of Amici a ae oe a a ee

Summary of the Argument oo a ae eee 3

SI eke ae tee 10

EDWARDS VY. ARIZONA REQUIRES

SUPPRESSION OF GREEN'S

EE ate a NT a 10

A. The Court Has Committed Itself

to a "Clear and Unequivocal"

ae ee 10

B. Lowell Green's Guilty Plea Did

Not Constitute a Waiver of His

Privilege Against Self-

Incrimination and Was Not the

Functional Equivalent of

ee 13

1. A Guilty Plea is not a

"waiver" of the right to

the aid of counsel during

questioning. ..... 16

a. A Guilty Plea does not

imply a willingness to

communicate directly with

the police which is

equivalent to initiation

by the accused. ie 24

— TABLE OF AUTHORITIES

C. The Other Distinguishing

Factors Petitioner Cites Do Not

Make Edwards weaneitesd: to Cases

this Case ; te 28 .

Page:

D. Strict Adherence to Edwards is

Required Once a Decision to Arizona v. Roberson,

Prosecute the Accused Has Been 486 U.S. 675 (1988) ....... #£Passim

rr 34 , 237 F.2d 656

(Sth DTT aTe ssp e¢@eeseece 88

Bauman yp United states. 692 F.2d 565

~~~ < . 4 wo ge tise 2 §9

Baxter v. Palmigiano, 425 U.S. 308 (1976) —

Conciusion ...+s:.. : 42

Bell v. Wolfish, 441 U.S. 520 (1979) .... 31

Block v. Rutherford, 468 U.S. 579 (1984) .. 31

Boykin v. Alabama, 395 U.S. 238 (1969) ... 16

Brown», -fubiar. 811 F.2d 938

Sth Cir. 1987) Pete « . 2. 6.

451 U.S. 477 (1981) vente eee Passim

451 U.S. 454 (1981) ..... 19, 26, 35

Fare v. Michael] C., 442 U.S. 707 (1979) . 5,10

Hudson v. Palmer, 468 U.S. 517 (1987) see

110 §.ct. 2394 (1990) ........ 31

Linn Y» Atate. 457 N.E.2d 189

Ind. 1983) ... eee. | ee

304 U.S. ieg aes. A a

, in.

111 S.Ct. 2204 (1991)

23, 29 Smithy _nited states. 529 A.2d 312

35 anal ae Seas earcatae ae

474 U.S. 159 (1985) 39 Solem v. Stumes, 465 U.S. 638 (1984)

, 592 A.2d 1042 State y,-Mautea. 682 P.2d 295

(D.C. 1991) 'eeee6¢4 4s 37, 38 Utah 1984) see eae

, 397 So.2d 1214 ,

(Fla. App. 1981) .... 19 411 U.S. 258 (1973)

, , 922 F.2d 123

110 S.Ct. 1176 (1990) il (2d Cir. 1990) VS orre)

‘ United Featas-x. Bepiane. 579 F.2d 1001

475 U.S. 625 (1986) 11 6th Cir. 1978 seeeeete es

, United siates2. Daxis. 919 F.2d 1181

423 U.S. 96 (1975) 14, 27, 30 6th Cir. 1990 ig 6k, a eg ag

Minnesota v. Murphy, 465 U.S. 420 (1984) 17

476 F.2d 1229 (2d Cir.),

Minnick ¢. Mississios cert. denied, 414 U.S. 840 (1973)

111 S.Ct. 486 (1990) Passim

inAted sates, deadnen 289 F.2d 256

Miranda v. Arizona, 384 U.S. 436 (1966) 7 4th Cir.), vacated.

368 U.S. 14 (1961) .

Moore v. Illinois, 434 U.S. 220 (1977) 36 ;

In_re Neff, 206 F.2d 149 (3d Cir. 1953) 21 467 U.S. 180 (1984)

Qregon v. Bradshaw, 462 U.S. 1039 (1985) 24 , 905 F.2d 959

(6th Cir. 1990),

, 487 U.S. 285 111 S.Ct. 2858 (1991)

(1988) ae 35, 39, 42

, 554 F.2d 1219

, 127 Ill. App. 3d 179, lst Cir.),

182 Ill. Dec. 270, 468 N.E.2d 817 434 U.S. 851 (1977)

Guuee Es DD lt ttt tee 20

United states-y.Jackacn. 886 F.2d 838

, 149 Mich. App. 602, 7th Cir. 1989) ne a

386 N.W.2d 609 (Mich. App. 1986) 20

United states vy. Jehnscn. 488 F.2d 1206

a men « «ok ss s&s

445 U.S. 552 (1980) 26

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

, 39

i, 604 F.2d 613

(9th Cir. 1979),

446 U.S. 935 (1980)

, 892 F.2d 101

in a. ee.

United states _v. Lyons. 703 F.2d 815

5th Cir. 1983) de Tad ln) Pia ea

425 U.S. 564 (1976)

, 682 F.2d 853

is Mn §=«.s . 66. sé *

United States v.Milier. 771 F.2d 1219

re ee eng ees ee

United states v. Hiller. 904 F.2d 65

<= = eee iarinaee

united States v-Miranti. 253 F.2d 135

. SS peepee

, 810 F.2d 308

(lst Cir. 1987) a ae oe

, 921 F.2d 975

(owen Gale BUUUP «ec e eee

United States -v. Smith. 940 F.2d 710

lst Cir. 1991) ‘ee 6 88 a

United states v. Tindle. 808 F.2d 319

4th Cir. 1986), cert. denied,

490 U.S. 1114 (1989)

jo- , 582 F.2d 460

United States v. Trejo-Zambrano

(9th Cir.), gehts penises.

439 U.S. 1005 (1978) ..

united States v.Yurasovich. 580 F.2d 1212

ae na a . «bs oe oe ee

D.C.

Fed.

Sup.

Statutes and Court Rules

Code § 16-2301(3) (1989 Rep.)

Code § 16-2307(h) (1989 Rep.)

Code § 23-113 (1989 Rep.)

Be Ge

Ct.

ct.

Ct.

Cr.

na aD DOU CUD

11 ao a a a oe ee es

. 3

. 4(a)

- S(a)

. 5(d)

Ab we eo eo eo eo oe) OB, BB, BE,

Vii

No. 91-1521

In The

SUPREM® COURT OF THE UNITED STATES

UNITED STATES OF AMERICA, Petitioner,

Vv.

LOWELL GREEN

On Writ of Certiorari to the

District of Columbia Court of Appeals

BRIEF FOR THE PUBLIC DEFENDER SERVICE

FOR THE DISTRICT OF COLUMBIA AND THE

NATIONAL LEGAL AID ANL ENDER

ASSOCIATION AS AMICIC IAE

SUPPORTING AFFIRMANCE

INTERESTS OF AMICI

The Public Defender Service for the

District of Columbia (PDS) is an

independent agency established by

Congress to provide legal assistance to

indigent persons charged with criminal

offenses in the local and federal courts

of the District of Columbia. D.C. Code

§§ 1-2701, et seq. PDS therefore has an

interest in protecting the exercise of

the right to counsel recognized in

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

PDS participated as amicus curiae in the

proceedings below.

The National Legal Aid and Defender

Association (NLADA) is a private, non-

profit national membership organization

based in Washington, D.C. Its purpose is

to assure the availability of quality

legal services in criminal and civil

cases to all persons unable to retain

counsel. The membership of the NLADA

includes most public defender offices

around the country, as well as many

assigned counsel and private

practitioners. Accordingly, the NLADA

has a substantial interest in the

preservation of the role of counsel in

our adversary system of criminal

justice.!

SUMMARY OF THE ARGUMENT

Petitioner's brief draws several

factual distinctions between this case

and Edwards y. Arizona, 451 U.S. 477

(1981), but it never offers a convincing,

workable, and coherent rationale for the

exception it seeks to the Edwards "bright

line" rule. To paraphrase the court

below, Pet. App. 15a, there is no

"Leitfaden" leading through this Court's

decisions to the result petitioner

advocates.

| The parties have consented to submission of

this Brief. Rule 37.3.

In Edwards, this Court held "an

accused, ... 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 made available to him,

unless the accused himself initiates

further communication, exchanges, or

conversations with the police." 451 U.S.

at 485. The rule is clear and concise.

Twice this Court has rejected arguments

that it should restrict the Edwards

holding based upon factual distinctions

like those pressed by the government

here. Arizona y. Roberson, 486 U.S. 675

(1988)(reinterrogation concerned a

different case); Minnick vy. Mississippi,

111 S.Ct. 486 (1990) (defendant had an

opportunity to consult with counsel

before reinterrogation). "The merit of

the Edwards decision lies in the clarity

of its command and the certainty of its

application. ... ‘This gain in

specificity, which benefits the accused

and the state alike, has been thought to

outweigh the burdens [Edwards] imposes on

law enforcement agencies and courts by

requiring the suppression of trustworthy

and highly probative evidence even though

the confession might be voluntary under

traditional Fifth Amendment analysis.'"

Minnick, 111 S.Ct. at 490 (quoting Fare

vy. Michael C., 442 U.S. 707, 718 (1979)).

Petitioner principally relies upon

Lowell Green's guilty plea as a “break in

the chain of events" from the assertion

of his right to counsel to his interro-

gation in January 1990. Pet. Br. 15

(quoting Tollett vy. Henderson, 411 U.S.

258, 267 (1973)). A guilty plea,

however, does not have significance for

the analysis in Edwards. It is neither a

waiver of the right protected by Edwards

nor the functional equivalent of

"initiation" by the accused.

Despite his guilty plea, Green

retained the right to refuse to answer

questions about the drug case to which he

pled guilty, or any other subject which

might tend to incriminate him. A

defendant who pleads guilty to an offense

does not agree by so doing to submit to

custodial interrogation about that

offense without the assistance of

counsel. A fortiori, a guilty plea does

not waive a previously asserted right to

have counsel present during questioning

about unrelated matters.

A guilty plea also does not

"reopen[] the dialogue with the

authorities," Edwards, 451 U.S. at 486

n.9. It is not evidence that an accused

who has previously expressed the need for

help in withstanding the pressures of

custodial interrogation no longer desires

the advice of counsel. For these

reasons, the entry of a guilty plea has

no effect on the Edwards rule.

In addition to proposing a

categorical exception to Edwards for

interrogations after guilty pleas,

petitioner recites several factual

circumstances which, it contends, would

make application of the Edwards rule here

inconsistent with its purpose. Pet Br.

7, 10, 25. The accumulation of these

facts does not change the result dictated

by Edwards. Every “bright line” rule

applies to a range of circumstances.

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

requires warnings even if the arrestee is

a police officer, a lawyer, or a judge.

Edwards cannot survive as a lucid and

intelligible rule for the police if

courts are invited, as they would be in

every case, to make ad hoc policy

judgments about whether to follow

Edwards. See Pet. Br. 13, 25. Minnick,

111 S.Ct. at 492, Roberson, 486 U.S. at

681-82.

Moreover, Green had been charged

with murder by complaint at the time the

police interrogated him. As a result,

the government had already moved from the

investigatory phase - where the police

seek information from a suspect which may

inform a charging decision - to the

prosecutorial phase - where interrogation

is used to build the government's case

against the defendant. Once "the adverse

positions of government and defendant

have solidified," United States yv.

Gouveia, 467 U.S. 180, 189 (1984), as

they had in this case, the dangers of

undue coercion during interrogation

increase, adding to the need for strict

adherence to Edwards.

ARGUMENT

EDWARDS vy. ARIZONA REQUIRES

SUPPRESSION OF GREEN'S

STATEMENT.

A. The Court Has Committed Itself

to a "Clear and Unequivocal" Rule.

In Edwards, this Court unanimously

agreed that Edwards’ confession should be

suppressed. The majority articulated a

straightforward bright-line, prophylactic

rule. Like the requirement for Miranda

warnings, this rule “has the virtue of

informing police and prosecutors with

specificity as to what they may do in

conducting custodial interrogation, and

of informing courts under what

circumstances statements obtained during

such interrogations are not admissible."

Minnick v. Mississippi, 111 S.Ct. at 490

(quoting Fare vy. Michael C., 442 U.S.

707, 718 (1979)). "The merit of the

Edwards decision lies in the clarity of

its command and the certainty of its

application." Ibid. The Court "has

repeatedly emphasized the virtues of a

bright-line rule." Michigan y. Jackson,

475 U.S. 625, 634 (1986); Smith y.

Illinois, 469 U.S. 91, 98 (1984); Solem

vy. Stumes, 465 U.S. 638, 646 (1984).

A "clear and unequivocal” rule,

Minnick, 111 S.Ct. at 492, is desirable

for at least three reasons. First, it

makes clear to the police how to respond

to invocations of the right to counsel.

Since the rule is designed to prevent

"padgering,” Michigan vy. Harvey, 110

S.Ct. 1176, 1180 (1990), it is important

to leave little room for interpretation

or evasion in the stationhouse. Second,

an unequivocal rule is easier for trial

courts to apply. Rather than a

"presumption" which may be challenged by

the unique facts of any case, the Edwards

rule is a standard of conduct which is

relatively easy for a trial court to

enforce. Third, on the appellate level,

a bright-line rule achieves greater

consistency than an approach based upon a

"totality of the circumstances."

Petitioner seeks an exemption from

the bright-line Edwards rule for this

case, but never makes clear how broad or

narrow that exemption would be. This

approach substitutes an ad hoc "totality

of the circumstances” test for the

Edwards rule. To the extent petitioner's

real quarrel is with Edwards and, more

generally, with prophylactic rules to

protect constitutional rights, it has

made these arguments before, and they

should be rejected again.’

B. Lowell Green's Guilty Plea Did

Not Constitute a Waiver of His Privilege

Against Self-Incrimination and Was Not

the Functional Equivalent of Initiation.

On July 18, 1989, Lowell Green, then

eighteen years of age, was given a

Metropolitan Police Department advice of

rights form. He answered "yes" to three

questions: “Have you read or had read to

you the warning as to your rights;" "Do

you understand these rights;" and "Do you

wish to answer any questions." His

answer to the fourth question, "Are you

willing to answer questions without

having an attorney present," was "no."

This answer “expressed his desire to deal

with the police only through counsel,"

Edwards, 451 U.S. at 485, and "expressed

his own view that he [was] not competent

2 Petitioner participated as amicus in both

Roberson and Minnick.

to deal with the authorities without

legal advice." Arizona y. Roberson, 486

U.S. at 681 (quoting Michigan vy. Mosley,

423 U.S. 96, 110 n.2 (1975) (White, J.,

concurring in result)). See Smith v.

United States, 529 A.2d 312, 314 n.2

(D.C. 1987).

Nothing in the record suggests that

Lowell Green limited his assertion of his

right to counsel in any way. Nothing in

the record suggests that his reason for

requesting the assistance of counsel was

limited to the drug charge for which he

had been arrested. Just as a waiver

would have been construed to permit

questioning about any subject --

including the murder of Cheaver Herriott

-- his assertion of the right to counsel

must be construed as a vefusei to discuss

any matters with the police except in the

presence of counsel. Arizona vy.

Roberson, 486 U.S. at 684. As the Court

said in Roberson, “there is no reason to

assume that a suspect's state of mind is

in any way investigation-specific." 486

U.S. at 684. Indeed, Green's initial

refusal to speak to the police without a

lawyer may have been prompted by his fear

of blurting out information about a

murder rather than reluctance to discuss

the drug offense for which he was

arrested. This Court's decision in

Edwards requires the suppression of

statements Mr. Green made during

custodial interrogation without the

benefit of counsel whose assistance he

had requested during the course of

questioning he had not initiated.

Edwards, 451 U.S. at 485.

1. A guilty plea is not a

"waiver" of the right to the aid of

counsel during questioning.

Petitioner contends that Green's

guilty plea in the drug case makes

Edwards inapplicable to the murder case.

Pet. Br. 15-17. .This argument

mischaracterizes the legal and factual

implications of a guilty plea and ignores

the significance of the Court's decision

in Roberson.

This Court said in Tollett y.

Henderson, 411 U.S. 258 (1973), that a

guilty plea extinguishes a defendant's

right to raise constitutional claims

which might have been available if the

defendant had gone to trial.’ This means

3 This is the sense in which waiver is used in

, 395 U.S. 238, 243 (1969). A

endant who pleads guilty also expressly waives

certain rights under Fed. R. Cr. P. 11, or its

Superior Court counterpart. i

States, 394 U.S. 459, 466 (1969). This express

waiver does not include the right at issue here.

. 16

that by pleading guilty a defendant loses

the opportunity to challenge most pre-

existing constitutional errors. This

does not mean, however, that a-defendant,

by pleading guilty, has surrendered

protection against future violations of

his or her constitutional rights. See

Minnesota v. Murphy, 465 U.S. 420, 426

{1984) (even conviction does not preclude

assertion of Fifth Amendment privilege).

Unless a plea agreement expressly

provides for cooperation with the

government, a guilty plea is not a

"waiver" of the right to have counsel

present during custodial interrogation.

Generally, a guilty plea is not even a

waiver of the right not to incriminate

oneself. Superior Court Rule 1l(c),

which is substantively identical to Fed.

R. Cr. P. ll(c), requires the court to

advise the defendant “"[t]hat he has the

right to plead not guilty or to persist

in that plea if it has already been made,

and that he has the right to be tried by

a jury and at that trial has the right to

the assistance of counsel, the right to

confront and cross-examine witnesses

against him, and the right not to be

compelled to incriminate himself"

(emphasis added). As a general matter,

defendants who enter guilty pleas give up

their right to assert the privilege at

trial because “there will be no trial."

See 1 FEDERAL JUDICIAL CENTER, BENCH BOOK

FOR UNITED STATES DISTRICT JUDGES 1.06-8-

9 (3d ed. 1986); Sup. Ct. Cr. R. 1ll(c)

(4). A plea is treated as a substitute

for a trial and as a waiver of any rights

which would be exercised.during trial. A

guilty plea therefore has no greater

effect on a defendant's Fifth Amendment

privilege than a guilty verdict.‘

* In general, "(a] convicted but unsentenced

defendant retains his Fifth Amendment rights."

United States v. Lugg, 892 F.2d 101, 102 (D.C. Cir.

1989)(witnesses who had entered guilty pleas

retained privilege not to testify about offense of

conviction) ; i , 554 F.2d

1219, 1222 (lst Cir. 1977), led, 434 U.S.

851 (1977) (acceptance of guilty plea would not

sentencing) ; See oo 582

F.2d 460, 464 (9th Cir.), led, 439 U.S.

1005 (1978); United States v. Miller, 771 F.2d

1219, 1235 (9th Cir. 1985); CNQT rT 397

So.2d 1214, 1215 (Fla. App. 1981 right against

self incrimination continues after conviction until

sentencing). But see Py pm 2, — abla. 811 F.2d

938, 940 (Sth Cir. 1987 rejecting claim that

Miranda warnings were required before presentence

interview because "[b]y pleading guilty, Brown

waived the privilege against ps grneed self-

incrimination guaranteed by the fifth amendment").

In Estelle v. Smith, 451 U.S. 454 (1981), the

Court held that the admission of psychiatric

testimony in the penalty phase of a capital trial

violated the defendant's Fifth and Sixth Amendment

rights. The Court rejected the State's ar nt

that incrimination ended with an adjudication of

guilt. 451 U.S. at 462. The Court did not decide

whether “the same Fifth Amendment concerns are

necessarily presented by all types of interviews

and examinations that might be ordered or relied

upon to inform a sentencing determination." 451

U.S. at 469 n.13.

The courts have generally concluded that

Miranda warnings are not required before routine

resentence interviews by court probation officers.

United States v. Cortes, 922 F.2d 123, 126 (2d Cir.

(9th Cir- 1982); United states v. Jackson. 886'F. 2a

(9th Cir. 1982); , 886 F.2d

A guilty verdict or a guilty plea

does not extinguish a defendant's Fifth

Amendment privilege even with respect to

the offense of conviction. Pet. App.

l3a. It follows that a finding of guilt

of one offense does not deprive a

defendant of the right to refuse to

answer questions about other offenses.”

838, 842 n.4 (7th Cir. 1989); United States v.

Rogers, 912 F.2d 975, 979 (10th Cir.), cert.

denied, 111 5.Ct. 113 (1990); United States v.

Davis, 919 F.2d 1181, 1186-87 (6th Cir. 1990); Limp

v. State, 457 N.E.2d 189, 191 (Ind. 1983);

y. Bachm an. af a ms tthe 179, 82 _ Dec. 270,

-E. : - App. 1984); People v.

Daniels, 149 Mich. App. 602, 386 N.W.2d 609, 613

(Mich. App. 1986). Most of these cases assume,

however, that the Fifth Amendment privilege applies

to these presentence interviews. There may be many

aspects of an offense which could lead to an

increased sentence, so that a defendant could not

be compelled to give a full account of an offense,

even after pleading guilty, without violating the

Fifth Amendment.

5 be ; ; " ;

; y pleading guilty, "a witness does not lose

his Fifth amentnent right to refuse to testify

concerning other matters or transactions not

included in his conviction or plea agreement."

, 808 F.2d 319, 325 (4th

Cir. 1986), led, 490 U.S. 1114 (1989);

accord , 488 F.2d 1206,

1209-10 (lst Cir. 1973);

810 F.2d 308, 314 (ist Cir. 1987); ‘

, 476 F.2d 1229, 1231 (2d Cir.), cert.

PITT ay U.S. 840 (1973); deited akin s

Defendants are not advised that, by

pleading guilty, they give up any future

right to refuse to answer questions about

the offense of conviction,’ much less

Yurasovich, 580 F.2d 1212, 1218 (3d Cir. 1978);

United States v. Lyons, 703 F.2d 815, 818 n.2 (5th

Cir. 1983); United States _v. Damiano, 579 F.2d

1001, 1002 (6th Cir. 1978); United States v. Moore,

682 F.2d 853, 856 (9th Cir. 1982).

6 The court is required to advise the

defendant that "[i]f the Court intends to question

the defendant under oath, on the record, and in the

presence of counsel about the offense to which he

as pleaded, that his answers may later be used

against him in a prosecution for perjury or false

statement." Sup. Ct. Cr. R. Rule ll(c {5} (enshasie

added). However, unlike a statement made following

a true waiver of a defendant's protection against

self-incrimination, a defendant's acknowledgement

of guilt during a plea proceeding.is not admissible

if the guilty plea is later withdrawn. Rule 11(e)

(4)(C). The record does not show whether Green

made any statement when he entered his guilty plea

in the drug case.

Moreover, the general rule is that a waiver

of the privilege in one proceeding -- such as a

plea hearing -- does not preclude the assertion of

the privilege in a subsequent proceeding. In re

Neff, 206 F.2d 149, 152 (3d Cir. 1953); Un}

States v. Smith, 940 F.2d 710, 713 (1st Cir. 1991);

} i, 253 F.2d 135, 139 (2d

Cir. 1958); , 289 F.2d 256,

259 (4th Cir.

19 ;

, Vacated, 368 U.S. 14 (1961); United

, 237 F.2d 657, 665 (Sth Cir.

; , 604 F.2d 613, 623

(9th Cir. 1979), , 446 U.S. 935 (1980).

, 904 F.2d 65, 69

D.C. Cir. 1990) (recognizing that D.C. Circuit

holds “minority view").

that they are surrendering the right to

have counsel present during custodial

interrogation by the police. Indeed, the

mandatory advice to a guilty pleading

defendant includes a continuing right to

the assistance of counsel, Sup. Ct. Cr.

R. ll(c)(2). It follows a fortiori that

a guilty plea in one case has no effect

whatsoever on the previously asserted

right to have counsel present during

questioning about different offense.

Even if, as petitioner argues, a guilty

plea amounted to a waiver, the scope of

the waiver would be narrower than the

Original assertion of the right to

counsel, which was not "investigation -

specific." Arizona vy. Roberson, 486 U.S.

at 684. Petitioner's discussion of

Green's guilty plea omits .any reference

to Roberson, obscuring the disparity

between the scope of the putative waiver

and the scope of the assertion.

Nothing in this record shows that

Lowell Green waived any rights at all.

All the record shows is that he offered a

guilty plea, whicn a Superior Court judge

accepted. The government did not argue

waiver based upon the guilty plea in the

trial court, and did so for the first

time on appeal. The most this Court

should presume from this silent record is

a limited waiver complying with Rule 11

which in no way implicates the Edwards

right to counsel during custodial

questioning.’

As the Court observed in

wisconsin. lll §.Ct. 2204; 2209 aan} the

assertion of Sixth Amendment right to counsel is

not an assertion of the Fifth Amendment right “as

a matter of fact." Likewise, “as a matter o fact”

the limited waiver of rights in the course

guilty plea is not a waiver of the Edwards right.

2. A guilty plea does not imply

a willingness to communicate directly

with the police which is equivalent to

initiation By the accused.

The Court said in Edwards that

interrogation is permissible after a

suspect requests counsel only if counsel

is present or if the defendant initiates

a conversation with the police about the

offense. 451 U.S. at 485. When a

suspect who has previously requested a

lawyer "evince[s] a willingness and a

desire for a generalized discussion about

the investigation," Oregon vy. Bradshaw,

462 U.S. 1039, 1045-46 (1983), the need

for prophylactic measures against

coercion is diminished. The reason for

this is that by reopening a dialogue with

the authorities, the subject of the

interrogation repudiates a previceusiy

expressed "desire to deal with the police

only through counsel.” Edwards, 451 U.s.

at 485. Initiation cancels out a

previous assertion of the Fifth Amendment

right to counsel because it concerns

precisely the same point: whether an

accused is willing to talk to the police

without a lawyer.

A guilty plea is not the functional

equivalent of initiation. Petitioner

acknowledges "that a guilty plea is not

necessarily inconsistent with a

continuing desire to deal with the

government only chroudh counsel,” Pet.

Br. 16, that is, a guilty plea is fully

consistent with a continuing assertion of

Edwards rights. It does not, as a

factual matter, reflect any renewed

willingness to brave the pressures of

custodial interrogation. A defendant who

has entered a guilty plea and is pending

sentencing may be particularly vulnerable

to pressure to "cooperate" with the

authorities by answering questions. See

Roberts v. United States, 445 U.S. 552,

557-560 (1980)(sentence may be enhanced

for failure to cooperate with the

authorities: no showing in this case that

the defendant's silence was "protected by

the privilege against self-

incrimination"). Nor does a guilty plea

imply any agreement to forego the advice

or presence of counsel. Green was

represented by a lawyer during and after

his guilty plea in the drug case.*

Because, as the government admits, a

guilty plea does not Signify a change of

heart about a defendant's willingness to

forego the help of a lawyer, approaching

8 Because of Green's Sixth Amendment right to

counsel, it clearly would have been impermissible

for the police to question him for purposes of

thering information to enhance his sentence.

Eetelle ©. smith 451 U.S. at 470-72.

a defendant after a guilty plea or a

guilty verdict, see Pet. Br. 17, "and

seek[ing] to determine if he would now

like to speak with [the police] about an

unrelated offense," Pet. Br. 18, presents

exactly the same dangers of coercion as

approaching a defendant about an

unrelated offense before a guilty plea.

Even after a guilty plea, "a later

decision at the authorities’ insistence

to make a statement without counsel's

presence may properly be viewed with

skepticism.” Roberson, 486 U.S. at 681

(quoting Michigan v. Mosley, 423 U.S. 96,

110 n.2 (1975)(White, J., concurring in

the result)). This Court has already

said in Roberson, that an assertion of

the right to counsel forecloses custodial

questioning, even about an unrelated

offense. The government does not

challenge Roberson, and it controls this

case.

The government eventually retreats

to a “broader point: the irrebuttable

presumption from Edwards should not apply

when there is a significant change in the

accused's status prior to the

interrogation." Pet. Br. 17. But

petitioner fails to justify creating an

exception to Edwards because it cannot

show that a guilty plea is a change of

status inconsistent with the purposes of

the Edwards rule.

C. The Other Distinguishing Factors

Petitioner Cites Do Not Make Edwards

Inapplicable to this Case.

Petitioner identifies three facts in

addition to Green's guilty plea which it

Claims take this case out of the ambit of

Edwards. But petitioner does not propose

a “clear and unequivocal” rule of conduct

which accounts for these facts. Instead,

petitioner's argument leads to an ad hoc

approach which cannot be squared with

Edwards, Minnick and Roberson. A bright-

line rule must be justified by a purpose,

but this does not mean that the rule

should be re-examined each time it is

applied. In any event, the rationale of

Edwards applies even after consideration

of all of the facts petitioner cites.

The length of.time between Green's

assertion of his right to counsel and the

renewed interrogation does not offer a

principled basis for a decision in this

case.’ Petitioner ignores the need for

9 This does not mean, however, that an

assertion of the right to counsel would extend to

offenses committed after the assertion, since a

suspect would have no reason to expect to be

questioned about criminal conduct which has not yet

occurred. For this reason, there is no need to

impose a time limit on Edwards in order to justify

the result in , 905 F.2d 959,

962 (6th Cir. ; , 111 S.Ct. 2858

(1991) (threaten etter sent after Hall was

appointed counsel in unrelated state matter). In

Clarity in this area of the law. Its

brief proposes no predictable standard to

determine how long is too long. See Pet.

Br. 20-22 (more than a "few days").

Moreover, an extended period of time in

custody may increase, rath®r than

diminish, the coercive pressures to

comply with custodial interrogation.

Minnick, 111 S.Ct. at 491. Prisoners are

expected to answer the questions of those

in authority, see Baxter y. Palmigiano,

425 U.S. 308, 318 (1976) (privilege

any event, Hall is controlled by McNeil vy.

Wisconsin, 111 S.Ct. 2204 (199%), rather than

Edwards.

v wW , 682 P.2d 295, 298 (Utah

1984), the other case the government cites as

support for a temporal limit on the assertion of

the right to counsel, Pet. Br. 22 a.7,

misinterpreted - The Newton court said "the

rule established in Edwards is not a per se rule,

but requires a consideration of the totality of the

circumstances to determine if a defendant should

have been re-advised of his rights prior to

additional questioning." Newton, 632 P.2d at 297.

Newton erroneously applied the "scrupulously honor"

standard of ichi , vather’ than

requiring initiation under Edwards.

against self-incrimination does not apply

to prison disciplinary proceedings), and

become inured to the loss of privacy and

dignity which attends incarceration. See

Bell _yv. Wolfish, 441 U.S. 520 (1979);

Block vy. Rutherford, 468 U.S. 576, 589-91

(1984); Hudson v. Palmer, 468 U.S. 517,

528 (1984). For these reasons, a

prisoner may be especially susceptible to

coercion during custodial questioning.

The interrogation conducted in this

case also placed pressure on Green beyond

the normal consequences of incarceration.

Unlike a prisoner questioned by a

cellmate in his own familiar quarters,

see Illinois y. Perkins, 110 S.Ct: 2394,

2397 (1990), Green was interrogated by

detectives on the quintessentially

coercive ground of the stationhouse. See

Brief of the United States as Amicus

Curiae at 1l, Illinois y. Perkins,

(No. 88-1792). While incarcerated at the

Youth Center, Green would have been

notified of a "visit" by police officers,

and would have had the right to refuse to

see them, or to contact his attorney. In

contrast, when he was transported to the

Homicide Branch, he lacked even this

degree of freedom. Like Minnick, Green

was denied the choice whother to meet

with his interlocutors. Minnick, 111

S.Ct. at 488.

The other factors petitioner

highlights, interrogation about a

different case and the fact that Green

had counsel appointed for him in the drug

case, are no more pérsuasive in

combination than they were singly in

Roberson and Minnick. There is even less

reason to believe that consultation with

a lawyer appointed in a different case

would be "effective in instructing the

suspect of his rights," Minnick, 111

S.Ct. at 491, than there was in Minnick.

Indeed, there is nothing in this record

to suggest any consultation between Green

and his counsel concerning the murder

charge.

The fact that Lowell Green-atready

had a lawyer before he was questiched

cuts against petitioner. The right Green

asserted was the right to have counsel

present during questioning; he did not

refuse to talk to the police as long as

they gave him a lawyer. By questioning

him without contacting the lawyer who

already représented him, the police

failed to honor his request. The

implicit message was that talking to the

police with the assistance of counsel was

not really an option.

D. Strict Adherence to Edwards is

Required Once a Decision to Prosecute the

Accused Has Been Made.

Edwards should be applied to this

case because the interrogation here

violated the central purpose of the rule.

"Preserving the integrity of an accused's

choice to communicate with the police

only through counsel is the essence of

Edwards and its progeny." Patterson, 487

U.S. at 291. "This Court has

consistently emphasized and, more

importantly, has stood fast to ensure the

essential premise underlying our entire

system of criminal justice that ‘ours is

an accusatorial and not an inquisitorial

System - a system in which the State must

establish guilt by evidence independently

and freely secured and may not by

coercion prove its charge against an

accused out of his own mouth.'" United

States v. Mandujano, 425 U.S. 564, 587

(1976) (quoting Rogers yv. Richmond, 365

U.S. 534, 541 (1961)).

The function of Edwards is to

protect the “initial election" of an

accused to seek the assistance of

counsel, Patterson y. Illinois, 487 U.S.

at 291, in his or her dealings with the

Police. Once a charging decision has

been made, the officer conducting an

interrogation has an even greater

incentive to overcome that "initial

election" in order to make the accused

"the deluded instrument of his own

conviction.” Estelle vy. Smith, 451 U.S.

at 463.

Lowell Green was formally charged

with murder on January 4, 1990, the day

before he was interrogated, when the

United States Attorney filed a complaint

in the Superior Court alleging that Green

had committed a first degree murder. !°

See Moore y. Illinois, 434 U.S. 220, 228

(1977) (per curiam) ("The prosecution in

this case was commenced under Illinois

law when the victim's complaint was filed

in court"). The filing of the complaint

Signalled a change from the investigative

to the accusatory stage. The person

named in a complaint is a "defendant,"

Sup. Ct. R. Cr. P. 4(c), 5(a). Like an

indictment or information, a complaint is

10 This Court declined to decide whether the

Sixth Amendment right to counsel "attaches" when a

complaint is filed in Minnick, 111 S.Ct. at 489,

and in Edwards, 451 U.S. at 480 n.7. In this case,

the Court of Appeals held, without elaboration,

that there was "no issue of violation of

defendant's right to counsel under the Sixth

Amendment," Pet. App. 3a-4a n.1, and Green has not

sought review of that holding. Regardless whether

Green also had a Sixth Amendment right to counsel,

the fact that a charging decision had been made

transformed the interrogation from investigative

fact-gathering to pretrial discovery. In the

context of a case already slated for prosecution,

even an exculpatory statement has significant value

to the police.

a charging document which contain’ "a

written statement of the essential facts

constituting the offense charged." Rule

3. A complaint, together with the

required affidavit, constitutes

sufficient authority to hold a person in

custody pending a preliminary hearing.

Rule 5(d).

In Marrow vy. United States, 592 A.2d

1042 (D.C. 1991), the Court of Appeals

wrote, "[t]he process of obtaining an

arrest warrant - which includes a judge's

approval of charges designated by the

United States Attorney and the filing of

a complaint, supporting affidavit, and

warrant in the warrant office ... assures

that a decision to charge has been made

by the United States Attorney, based upon

Probable cause, and that it is a matter

of court record." 592 A.2d at 1045.!?!

If so, then it follows once a complaint

‘* Marrow was decided two weeks after :

The District of Columbia Court of Appeals held that

the filing of a complaint in the Superior Court

warrant office completed the charging process so

that a person under the age of eighteen who had

been charged by complaint with an offense subject

to adult criminal prosecution could also be charged

as an adult with other offenses otherwise

exclusively subject to the jurisdiction of the

juvenile court. D.C. Code §§ 16-2301, 16-2307(h).

In Marrow, the defendant was arrested for

misdemeanor possession of cocaine, an offense

normally within the exclusive jurisdiction of the

Family Division. Following his arrest, however.

the police discovered an outstanding warrant for

assault with intent to murder, an offense for which

Marrow was subject to prosecution as an adult.

Marrow argued that the cocaine possession offense

was not "subsequent" to his transfer for criminal

prosecution, because he had not been "charged by

the United States Attorney," D.C. Code § 16-

2301(3), with the assault before committing the

misdemeanor.

In Marrow, the government argued successfully

that "“'[c]Jharging' may be accomplished by the

filing of ac laint." Brief for Appellee at 4,

, (No. 89-1034) (D.C.). See

at 5 ("the court clearly indicated that

charging takes place when a complaint is issued").

It pointed out that under D.C. Code § 23-113, the

statute of limitations is tolled by the filing of

an indictment, or an information, or if “a

complaint is filed before a judicial officer

empowered to issue an arrest warrant; Provided,

that such warrant issued without unreasonable

rg id. at 6. Thus, the government treated

the filing of a complaint as a "firm commitment" to

prosecute. Compare Brief of the United States as

Amicus Curiae at 21, j issippi, (No.

89-6332) ats pao "firm commitment" to

prosecution required for Sixth Amendment).

is filed "the government has committed

itself to prosecute, and the adverse

positions of government and defendant

have solidified." Maine vy. Moulton, 474

U.S. 159, 170 (1985) (quoting United

States vy. Gouveia, 467 U.S. 180, 189

(1984))."

The police “circumvented” rather

than honored Lowell Green's right to

-gounsel. See Patterson v. Illinois, 487

U.S. at 302 n.2 (referring to Sixth

Amendment right). On January 5, 1990

Lowell Green was transferred from the

cellblock of the Superior Court building,

where he was only steps away from the

courtroom and the office responsible for

assigning appointed counsel, to the

2 This conclusion is buttressed by the terms

of the booking order authorizing the police to take

custody of Lowell Green. The order was issued,

“[uJpon a representation by the United States

Attorney's Office that additional charges are to be

brought against Lowell Green...." DX 1.

custody of the Metropolitan Police, on

the basis of a "booking order"

authorizing release "for the purpose of

booking, fingerprinting, photographing

and processing on a charge alleging a

violation of 22 D.C. Code 2401 and at the

conclusion thereof to return forthwith to

[United States Marshal's] custody."

"Booking" is not "part of the

investigative effort. Instead it isa

form of administrative processing that

consists mainly of obtaining information

‘required immediately to enable the

police to book and arraign the suspect

and [to set conditions of release].'"

Brief for the United States as Amicus

Curiae at 12, Pennsylvania y. Muniz, (No.

89-213). The police did not perform the

limited booking procedure authorized by

the court; they transported Green to

Homicide for interrogation. It is clear

that the interrogation was not envisioned

as a preliminary to an initial appearance

in court, because the arrest warrant was

not actually "returned" as executed until

January 6, 1990, when Green was brought

back to the courthouse and counsel was

appointed for him. The police unfairly

exploited the booking order as a license

to bolster a prosecution with incrimi-

nating admissions while Green could have

been making his initial appearance in

court.

ew ong

CONCLUSION

"Preserving the integrity of an

accused's choice to communicate with

police only through counsel is the

essence of Edwards and its progeny

Patterson y. Illinois, 487 U.S. at 291.

The rationale of Edwards applies with

full vigor to these circumstances,

because the police did not honor Lowell

Green's desire for the assistance of

counsel after he made his wishes known.

The judgment of the District of Columbia

Court of Appeals should be affirmed.

Respectfully submitted,

DAVID A. REISER

Public Defender Service

451 Indiana Avenue, N.W.

Washington, D.C. 20001 .

(202) 628-1200

Attorney for Amici

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