Amicus Curiae Brief — Davis v. United States

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

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BERNARD J. FARBER, ESQ. Tele and

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Chicago, Hlinois 60630-3926

TABLE OF CONTENTS

Page

TABLE GP AUTHORITIES ... 0... ccc ccceees ii

BRIEF OF AMICI CURIAE ..........0ee008: l

INTEREST OF AMICI CURIAE ............. 2

EC re 4

WHEN A SUSPECT MAKES AN AMBIGUOUS

COMMENT REGARDING COUNSEL DURING

A CUSTODIAL INTERROGATION, LAW EN-

FORCEMENT OFFICERS SHOULD BE PERMIT-

TED TO ASK QUESTIONS FOR THE PURPOSE

OF CLARIFYING THE SUSPECT'S WISHES... 4

Pr hee eee ba deweeeeeeecaenes 7

TABLE OF AUTHORITIES

Cases Page

Maglio v. Jago, 580 F.2d 202 (6th Cir. 1978) ..... 5

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

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

Nash v. Estelle, 597 F.2d 513

re ee ae ee eke a: rg Sd lave 5

Parker v. Singletary, 974 F.2d 1562

A ee ee ee 5

Poyner v. Murray, 964 F.2d 1404 (4th Cir. 1992) ... §

Terry v. LeFevre, 862 F.2d 409 (2nd Cir. 1988) .... 5

United States v. Davis, 36 M.J. 337

eo a ae a 4

United States v. Eaton, 890 F.2d 511

a ae ee 5

United States v. Fouche, 776 F.2d 1398 (1985),

appeal after remand, 833 F.2d 1284

(9th Cir. 1987), cert denied,

CR 5

United States v. Gotay, 844 F.2d 971

Dt sek Gteivdeececneheeeves 5

United States v. March, 999 F.2d 456

i ese tale a nie ds bbe eo 6 6 es 5

United States v. McKinney, 758 F.2d 1036

Ee en ee ee 5

United States v. Mendoza-Cecelia, 963 F.2d 1467

(11th Cir.), cert. denied, 113 S. Ct. 436

Ee ee 5

United States v. Porter, 776 F.2d 370

(ist Cir. 1985) (en banc) ................ 5

No. 92-1949

In The

Supreme Court of the United States

October Term, 1993

ROBERT L. DAVIS,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF MILITARY APPEALS

BRIEF

AMICI CURIAE

OF

AMERICANS FOR

EFFECTIVE LAW ENFORCEMENT, INC.,

JOINED BY

THE INTERNATIONAL ASSOCIATION OF

CHIEFS OF POLICE, INC.,

THE NATIONAL DISTRICT

ATTORNEYS ASSOCIATION, INC., AND THE

NATIONAL SHERIFFS’ ASSOCIATION,

IN SUPPORT OF THE RESPONDENT.

This Brief is filed pursuant to Rule 37 of the United

States Supreme Court. Consent to file has been granted by

respective Counsel for the Petitioner and Respondent. The

letters of consent have been filed with the Clerk of this

Court, as required by the Rules.

2

INTEREST OF AMICI CURIAE

Americans for Effective Law Enforcement, Inc.

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

interested in establishing a body of law making the police

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

improve the operation of the police function to protect our

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

framework of the various State and Federal Constitutions.

AELE has previously appeared as amicus curiae over

eighty-five times in the Supreme Court of the United States

and over thirty-five times in other courts, including the

Federal District Courts, the Circuit Courts of Appeal and

various state courts, such as the Supreme Courts of

California, Illinois, Ohio, and Missouri.

The International Association of Chiefs of Police, Inc.

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

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

members in 72 nations. Through its programs of training,

publications, legislative reform, and amicus curiae advocacy,

it seeks to make the delivery of vital police services more

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

our citizens.

The National District Attorneys Association, Inc.

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

Organization representing local prosecuting attorneys in

America. Since its founding in 1950, NDAA’s programs of

education, training, publication, and amicus curiae activity

have carried out its guiding purpose of reforming the

criminal justice system for the benefit of all of our citizens.

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

organization of sheriffs and jail administrators in America,

3

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

training, publications, and related educational efforts to raise

the standard of professionalism among the Nation’s sheriffs

and jail administrators. While it is interested in the effective

administration of justice in America, it strives to achieve this

while respecting the rights guaranteed to all under the

Constitution.

Amici are national professional associations representing

the interests of law enforcement agencies at the state and

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

officers and law enforcement administrators who are charged

with the responsibility of conducting interrogations within the

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

advisors who, in their criminal jurisdiction capacity, are

called upon to advise law enforcement officers and adminis-

trators in connection with such matters and to prosecute

cases involving evidence obtained thereby.

Because of the relationship with our members, and the

composition of our membership and directors—including

active law enforcement administrators and counsel—we

possess direct knowledge of the impact of the ruling of the

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

Court.

4

ARGUMENT

WHEN A SUSPECT MAKES AN AMBIGUOUS

COMMENT REGARDING COUNSEL DURING A

CUSTODIAL INTERROGATION, LAW ENFORCE-

MENT OFFICERS SHOULD BE PERMITTED TO ASK

QUESTIONS FOR THE PURPOSE OF CLARIFYING

THE SUSPECT’S WISHES.

After the cefendant in this case was advised of his

Miranda rights while in custody, he stated, “Maybe I should

talk to a lawyer.” He was asked to clarify his statement and

he said, “No, I don’t want a lawyer.” His interrogators then

took a break to let him consider his situation and, following

the break, resumed interrogation after an abbreviated

reminder of his rights, whereupon defendant made incrimi-

nating admissions. The court below ruled that defendant’s

ambiguous statement, “Maybe I should talk to a lawyer,”

was not a Miranda invocation of the right to counsel and the

interrogators were entitled to clarify the defendant’s state-

ment. “[B]ecause this comment by appellant did not unequiv-

ocally invoke his right to counsel, the NIS agents properly

conducted further limited questioning to clarify appellant’s

ambiguous comment.” United States v. Davis, 36 M.J. 337,

341 (CMA 1993),

Certiorari was granted by this Court to determine the

question: “[W]hen a suspect makes an ambiguous request

for counsel during a custodial interrogation, must the

interrogator cease questioning until the suspect is provided

with counsel?”

The defendant’s argument in this case is essentially that

whenever a suspect makes a reference to counsel—

ambiguous or not—the only option open to the police is to

provide him with an attorney before saying anything further

5

to him. That position has been rejected by the majority of

the courts that have considered the issue of what the police

are to do in the face of an ambiguous reference to counsel.

In the context represented by this case, law enforcement

officers must cease further interrogation, but they are

allowed to ask the suspect questions specifically limited to

clarifying his or her desire with respect to counsel. See e.g.,

United States v. March, 999 F.2d 456 (10th Cir. 1993);

United States v. Mendoza-Cecelia, 963 F.2d 1467, 1472

(11th Cir.), cert. denied, 113 S. Ct. 436 (1992); Parker v.

Singletary, 974 F.2d 1562 (11th Cir. 1992); Poyner v.

Murray, 964 F.2d 1404 (4th Cir. 1992); United States v.

Eaton, 890 F.2d 511 (1st Cir. 1989); United States v. Gotay,

844 F.2d 971, 975 (2nd Cir. 1988); Terry v. LeFevre, 862

F.2d 409 (2nd Cir. 1988); United States v. Fouche, 776

F.2d 1398, 1405 (1985), appeal after remand, 833 F.2d

1284, 1287 (9th Cir. 1987), cert denied, 486 U.S. 1017

(1988); United States v. McKinney, 758 F.2d 1036 (Sth Cir.

1985); United States v. Porter, 776 F.2d 370 (ist Cir. 1985)

(en banc); Nash v. Estelle, S97 F.2d 513, 517 (Sth Cir.

1979). Contra, Maglio v. Jago, 580 F.2d 202 (6th Cir.

1978).

The approach of the U. S. Court of Military Appeals, and

most other courts as well, is a common sense resolution of

the problem. It fully accommodates the rights of the subject,

while at the same time preserves the interests of law enforce-

ment and of the public welfare.

Under this rule, law enforcement officers are precluded

from badgering suspects who have made an ambiguous

statement; the questions after that point are strictly limited to

clarifying the suspect’s desires (not those of the police) on

the issue of access to counsel. Only if the suspect makes it

clear that he does not want counsel are the police permitted

to continue an interrogation. The suspect’s Miranda rights

6

are thus scrupulously protected. At the same time, the police

may make a reasonable inquiry (essentially a “ministerial”

inquiry as the March court, supra, called it) in order to

ascertain the wishes of the suspect. It should also be noted

that while some arrests are followed by a flat refusal to

answer an officer’s questions and others produce an

unequivocal waiver of rights, it is not uncommon for a

bilateral dialogue to ensue, while a suspect considers his

Miranda rights and options. Amici believe that a reversal

in this case would adversely impair a very large number

of otherwise admissible confessions.

Amici submit that, in effect, what the defendant wants this

Court to do is to create an absolute bar to clarification

statements. This Court answered that attempt, although in the

context of the Fifth Amendment privilege against self-

incrimination, in Michigan v. Mosley, 423 U.S. 96, 102

(1975). It pointed out that a “blanket prohibition against the

taking of voluntary statements or a permanent immunity

from further interrogation, regardless of the circumstances,

would transform the Miranda safeguards into wholly

irrational obstacles to legitimate police activity, and deprive

suspects of an opportunity to make informed and intelligent

assessments of their interests.”

We respectfully ask this Court not to unnecessarily adopt

a rule that would add to the existing manifold protections

presently enjoyed by criminal suspects, while measurably

decreasing the ability of beleaguered law enforcement

agencies to solve crimes.

7

CONCLUSION

Amici urge this Court to affirm the decision of the court

below on the basis of the precedents of this Court and sound

judicial policy; in the alternative, we submit that any error

at the trial level was harmless beyond a reasonable doubt.

OF COUNSEL:

ROY C. KIME, ESQ.

International Association

of Chiefs of Police

515 N. Washington St.

Alexandria, Virginia 22312

RICHARD M. WEINTRAUB, ESQ.

National Sheriffs’ Association

1450 Duke Street

Alexandria, Virginia 22314

WILLIAM C. O'MALLEY, ESQ.

Distnct Attorney

Brockton, Massachusetts

President

National District Attorneys

Association

99 Canal Center Plaza

Suite 510

Alexandria, Virginia 22314

BERNARD J. FARBER, ESQ.

5009 West Windsor

Chicago, Illinois 60630-3926

Respectfully submitted,

FRED E. INBAU, ESQ.

John Henry Wigmore Professor

of Law, Emeritus

Northwestern University

School of Law

Chicago, Illinois 60611

WAYNE W. SCHMIDT, ESQ.

Executive Director

Americans for Effective

Law Enforcement, Inc.

5519 N. Cumberland Avenue

Suite 1008

Chicago, Illinois 60656

JAMES P. MANAK, ESQ.

Counsel of Record

421 Ridgewood Avenue,

Suite 100

Glen Ellyn, Illinois

60137-4900

Tele and Fax: (708) 858-6392

Counsel for Amici Curiae