Opposition Brief — Missouri v. Seibert

™

No. 02-1371

In the

SUPREME COURT OF THE UNITED STATES

STATE OF MISSOURI,

Petitioner,

v.

PATRICE SEIBERT,

Respondent.

On Petition for Writ of Certiorari

to the Missouri Supreme Court

BRIEF IN OPPOSITION FOR RESPONDENT

WILLIAM J. SWIFT

Assistant Public Defender

Counsel of Record

AMY M. BARTHOLOW

Assistant Public Defender

3402 Buttonwood Drive

Columbia, MO 65201

Phone: (573) 882-9855

Fax: (573) 875-2594

Of counsel

Attorneys for Respondent

QUESTION PRESENTED

Whether the Missouri Supreme Court correctly concluded that, under the

totality of the circumstances, Patrice Seibert’s pre-Miranda statement was

involuntary where she was awoken in a hospital at 3:00 a.m., placed under arrest,

taken to the police station, interrogated for 30-40 minutes without being advised of

her Miranda rights, while police officers repeatedly squeezed her arm and

suggested that the victim of a fire at her home was “supposed to die in his sleep”?

il

TABLE OF CONTENTS

Page

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CORRECTION OF JURISDICTIONAL STATEMENT ....00......cccccscseesseeseeeeeneenees l

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CORRECTION OF INSUFFICIENT FACTUAL SUMMARY ...........ccccsecseeseeeees 2

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REASONS POR DEY TING THEE WIRED occccccceocscceccecsccsonscsessesescsscsonsssoonssnsssonseesee 6

1. The practice of withholding rights is not widespread,

especially after Dickerson v. United States ........0..ccsccsssseesseeseeeseenees 6

Il. Lower court opinions cited by petitioner merely reach different

results under the highly fact-specific voluntariness inquiry.............. 8

Ill. The Missouri Supreme Court’s decision was correct under

this Court’s existing precedent in Westover v. United States.......... 11

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TABLE OF AUTHORITIES

CASES ; Page

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Davis v. North Carolina, 364 U.S. 737 (1966) ....ccccccscscsossccccscssssvcssesscscsessccssosssssesse 3

Dickerson v. United States, 530 U.S. 428 (2000)...............ccccceeseesssssssereececeeeeeeeeeee 6-7

Haynes v. Washington, 373 U.S. SOS (1963) .....ccccessrscscrsssesssossosssccsesessosssessosscosss 3

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State v. Fakes, $1 S.W.3d 24 (Mo. App. 2001).............scsscccsssscessecosscsssssssssssossssons 1]

State v. Wright, 515 S.W.2d 421 (Mo. banc 1974) .0......cccsccsccseeeeeeeceesesseeseeseeseeesees 2

United States v. Carter, 884 F.2d 368 (8 Cir. 1989) .....cccccccccssescsseseseseseeseeceeseeees 8-9

United States v. Esquilin, 208 F.3d 315 (1* Cir. 2000) .0........cscsesesesceseseseeeeeeeenene 9-10

United States v. Gale, 952 F.2d 1412 (D.C. Cit. 1992) -.vcmensnneneee svn 8

United States v. Orso, 266 F.3d 1030 (9" Cir. 2001)........-.e:sses00-0 Aepesessoconinnnsennas 8-10

Westover v. United States, 384 U.S. 436 (1966) ........sssssssssssssseesseeesssssseeseeeesssnneses I

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STATUTORY AUTHORITIES

28 U.S.C. 1254(1)

28 U.S.C. 1257(a)

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OPINION BELOW

The opinion of the Missouri Supreme Court (Pet. App. 1-26) is reported at

93 S.W.3d 700 (Mo. bane 2002).

JURISDICTION

The judgment of the Missouri Supreme Court was entered on December 10,

2002. The petition for a writ of certiorari was filed on March 10, 2003. Petitioner

invokes the jurisdiction of this court under 28 U.S.C. 1254(1); however, that

provision relates to certiorari review of decisions by the federal courts of appeal.

Jurisdiction is properly invoked under 28 U.S.C. 1257(a), authorizing this Court to

review “[f)inal judgments or decrees rendered by the highest court of a State in

which a decision could be had ... where any title, right, privilege, or immunity is

specially set up or claimed under the Constitution.”

SUMMARY OF THE ARGUMENT

The Court should deny the petition for a writ of certiorari. Petitioner’s

argument rests on an incomplete and inaccurate account of the facts and the

opinion below. When considered fully, the Missouri Supreme Court’ sdecision

represents nothing more than a straightforward application of the Due Process

voluntariness test under an extreme set of facts unlikely to be repeated often. As it

did at the government’s recommendation in United States v. Orso, the Court

should again deny certiorari over this fact-bound question that does not implicate a

clear legal disagreement between the federal courts of appeals or state supreme

courts. Indeed, the decision below faithfully applies this Court’s decision in

Westover v. United States.

_ PETITIONER’S FACTUAL SUMMARY IS NOT SUFFICIENT

TO RESOLVE THE QUESTION PRESENTED

Petitioner’s question presented to the Court concerns the voluntariness of

respondent’s confession (Pet. App. i). A proper recitation of the factual history is

critically important, as the resolution of a voluntariness inquiry is necessarily fact-

bound. The unique nature of the facts in this case was recognized in the Missouri

Supreme Court’s @pinion, wherein it used three distinct phrases to distinguish this

case from other factual scenarios:

1) “And it may well be, under circumstances that differ from those in this

case, that the prosecution may nevertheless be able to show that the confession was

voluntary despite the Miranda-based presumption to the contrary.” (Pet. App. 9)

(emphasis added).

2) “In light of the record in this case, this Court presumes the violation of

Miranda was 2 tactic to elicit a confession and was used to weaken Sefbert’s ability

to knowingly and voluntarily exercise her constitutional rights.” (Pet. App. 9)

(emphasis added).

3) “When presented with different circumstances, the result may be

different.” [As an example, the Court discusses another Missouri case, State v.

Wright, 515 $.W.2d 421 (Mo. banc 1974), noting that Wright's subsequent

statements were not coerced because “the second interrogation was held the

following day, at a different location...and with different people present.”’} (Pet.

_ App. A-11) (emphasis added).

In this particular case, where the fact-pattern is highly unusual, Petitioner's

incomplete recitation of the facts must be corrected in order to ensure a proper

review.' A more satisfactory factual summary is set forth in the Missouri Supreme

Court’s opinion (Pet. App. 1-26); however, respondent specifically draws the

Court’s attention to the following facts, reievant to the question presented, that were

absent or misstated in petitioner's statement:

1. Misstatement of fact.

Petitioner states that respondent had a “role in arranging to burn down her

mobile home, with a man inside, to cover up the death of her son [Jonathan] (who

had apparently died of neglect for which respondent might have been blamed).”

(Pet. 4). This is clearly a misstatement of the record below. The evidence, as

presented through the State’s medical examiner did not show that Jonathan died of

neglect; in fact, the cause of death was never determined (Trial record 755-758).

. .

' While this Court normally gives great deference to the factual findings of the state

court, see Davis v. North Carolina, 384 U.S. 737, 741 (1966); Haynes v. Washington, 373

U.S. 503 (1963), “the ultimate question whether, under the totality of the circumstances,

the challenged confession was obtained in a manner compatible with the requirements of

the Constitution is a matter for independent federal determination.” Miller v. Fenton 474

U.S. 104, 112 (1985); Arizona v. Fulminante, 499 U.S. 279, 287 (1991).

2. Missing facts

a) The arrest:

Petitioner simply states that “five days after the fire, respondent was arrested

and taken to the police station, where she was placed in an interview room.” (Pet. 4).

This lone sentence disregards many of the facts surrounding respondent’s arrest that

were clearly important to the Missouri Supreme Court’s holding. The facts, as more

fully explicated by the court below, are as follows: On February 17, 1997, five days

after the fire, respondent was asleep in a St. Louis hospital, where her oldest son

was being treated for severe burns that he received in the fire (Pet. App. 2-3).

Officer Clinton woke her at 3:00 a.m. and placed her under arrest (Pet. App. 3).

Officer Hanrahan, who directed the arrest, specifically instructed Officer Clinton not

to advise respondent of her Miranda rights. (Pet. App. 3). Once at the police

station, respondent was left in a small interview room for 15-20 minutes to “give her

a little time to think about the situation.” (Pet. App. 3).

b) The interrogation:

squeezed respondent's arm and repeated the same statement, “Donald was also to

die in his sleep,” throughout much of the interview (Pet. App. 3)’. Respondent was

questioned “in an intense manner” and she “became emotional during the

? “Donald” refers to a friend of respondent’s oldest son who lived at respondent’s home.

(Pet. App. 2, Trial Record 754, 836, 854-855).

~~

interview.” (Pet. App. 10). Officer Hanrahan continued in this “intense manner”

until respondent agreed that “Donald was to die in his sleep.” (Pet. App. 10). When

respondent finally made this admission, she was given a short break for a cup of

coffee and a cigarette (Pet. App. 3). Thereafter, Officer Hanrahan began the second

stage of the interrogation, advising respondent of her rights for the first time (Pet.

App. 3). He began this second stage of his interrogation by referring to the first

stage: “Ok, ‘trice, we’ ve been talking for a little while about what happened on

Wednesday the twelfth, haven’t we?” (Pet. App. 3). Then, with occasional

- reference to the first stage, pre-Miranda interrogation, Officer Hanrahan continued

to question respondent until she repeated the statements she had made before

receiving Miranda (Pet. App. 3). The reiterated confession closely followed the

initial confession, and Officer Hanrahan obtained both in the same surroundings

(Pet. App. 10).

By reviewing the factual discussion contained in the Missouri Supreme

Court’s opinion, as opposed to the petition, this Court will be better equipped to

evaluate the propriety of granting or denying a writ in this case.

REASONS FOR DENYING THE WRIT

Petitioner asserts that law enforcement officers nationwide are being trained

to violate Miranda (Pet. 16-18). Petitioner has presented no concrete evidence to

suggest that this type of training is widespread; indeed, an article in the FBI’s Law

Enforcement Bulletin from August 2001, Volume 70, No. 8, entitled Miranda

Revisited (discussing the impact of Dickerson), warned that this type of training

must be terminated immediately:

"Departments must ensure that their officers do

not interrogate ‘outside Miranda,’ and immediately

abandon any condoned practice or policy of

intentional violations of Miranda."

http://www. fbi.gov/publications/leb/200 | /august200 | /aug01p27.htm

In reality, very few Miranda cases decided in the nearly two decades since

Oregon v. Elstad,’ involve the deliberate refusal to give warnings once the custodial

interrogation has commenced.’ This is not surprising since this Court generally

> Oregon v. Elstad, 470 U.S. 198 (1985).

* As noted by Justice O’Connor: “The published decisions of the lower federal courts

show that ... [i]n case after case, the courts are asked on habeas to decide purely technical

Miranda questions that contain not even a hint of police overreaching. And in case after

case, no voluntariness issue is raised, primarily because none exists. Withrow v.

Williams, 507 U.S. 680, 709-710 (1993) (O’Connor, J., dissenting).

expects that law enforcement officers will follow its decisions -- especially those in

which the Court's specific purpose was to delineate “concrete constitutional

guidelines for law enforcement agencies and courts to follow.” Miranda v. Arizona,

384 U.S. 436, 442 (1966).

Moreover, occasions such as this one, where the police deliberately refuse to

Mirandize suspects, can be expected to decline after this Court’s decision in

Dickerson v. United States, 530 U.S. 428 (2000). The custodial interrogation in this

case took place in 1997; therefore, the interrogating officer’s alleged training would

not have included any explanation of this court’s decision in Dickerson, This Court

previously has recognized law enforcements’ tendency to “grow in constitutional as

well as technological sophistication, and there is little reason to believe that the

police today are unable, or even generally unwilling, to satisfy Miranda's

requirements.” Withrow v. Wiliiams, 507 U.S. 680, 695 (1993)°. Thus, after

Dickerson, this Court can expect law enforcement to become even more vigilant

about the timely administration of Miranda warnings. It is simply not a worthwhile

endeavor for this Court to aa iress a case that will affect so few defendants.

* See Berkemer v. McCarty, 468 U.S. 420, 433 (1984) (“we have no doubt that, in

conducting most custodial interrogations...the police behave responsibly and*do not

deliberately exert pressures upon the suspect to confess against his will.); and Withrow v.

Williams, 507 U.S. 680, 714 (1993) (O’Connor, J., dissenting) (“We can depend on law

enforcement officials to administer warnings in the first instance and the state courts to

provide a remedy when law enforcement officers err.”’)

* The government's brief in Dickerson confirms that “federal law enforcement agencies

have concluded that...the issuance of Miranda warnings at the outset of a custodial

interrogation is in the best interests of law enforcement as well as the suspect.”

lower court opini it itioner merely reach different results

Petitioner places the Eighth Circuit, the Missouri Supreme Court and (with

hesitancy)’ the D.C. Circuit on one side of the alleged conflict and the First and

Ninth Circuits on the other. However, a review of the cases cited by petitioner

reveals that the Courts have reached different outcomes, not because they are in

conflict, but because they are factually distinct.

The starting point for analyzing the cases cited by petitioner is United States

v. Orso, No. 01-9455, where this Court denied certiorari just six months ago. In its

brief in opposition in Orso, the United States explained how the Ninth Circuit’s

decision in that case, the First Circuit’s holding in United States v. Esquilin and the

Eighth Circuit’s holding in United States v. Carter could be easily reconciled. As

the government pointed out, the Eighth Circuit’s application of E/stad was not

essential to the decision in Carter because it alternatively held that the defendant’s

post-Miranda confession was the fruit of an unconstitutional search. Carter, 884

F.2d 368, 374 (8" Cir. 1989). Indved, Carter involved an exceptional set of facts

not present in Orso: “there was no passage of time to speak of between the

unwarned confession and the subsequent warning and confession, all of which

’ Petitioner states that the D.C. Circuit in United States v. Gale, 952 F.2d 1412 (D.C. Cir.

1992), “seems to have joined” the 8" Circuit on the side of the Missouri Supreme Court.

However, Gale did not involve a deliberate refusal by the police officers to read a suspect

his Miranda warnings, and the statement cited by petitioner is pure dicta. Moreover, it is

not at all clear that the Gale court approved the holding of the 8" Circuit in United States

v. Carter, 884 F.2d 368 (1989), since its facts were distinguishable.

occurred as part and parcel of a continuous process” and “the police had extracted

an essentially complete confession at the time the Miranda warnings were given.”

The Missouri Supreme Court simply applied this same reasoning to

respondent's case. It found that the two stages of respondent's interrogation

occurred in the same setting, with the same interrogator, who questioned her at

length in an “intense manner,” while purposefully withholding the Miranda

warnings, until “she became emotional,” and that the two stages amounted to “a

nearly continuous period of interrogation,” where the warned statement merely

“confirmed her unwarned statements.” (Pet. App. 9-12).

The Missouri Supreme Court did not carve out a per se exception to Elstad in

cases where the police deliberately withhold Miranda rights, nor did it apply the

“fruit of the poisonous tree” doctrine, as claimed by petitioner (Pet. 6). Rather, the

Court simply applied the straight-forward voluntariness test found in Elstad. While

the Court may have put a thumb on the scale, so to speak, in holding that the

deliberate withholding of the Miranda rights created a presumption of coercion, it

did not announce a per se rule (Pet. App. 9). Indeed, the Court made quite clear that

“under circumstances that differ from those in this case, that the prosecution may

nevertheless be able to show that the confession was voluntary despitethe Miranda-

based presumption to the contrary.” (Pet. App. 9).

This is precisely the analysis in both the Ninth Circuit's Orso opinion, and

the First Circuit’s opinion in United States v. Esquilin, 208 F.3d 315 (1* Cir. 2000).

The Ninth Circuit stated that “Orso’s warned confession should therefore be

10

suppressed only if her statements in the car were involuntary, and any taint

therefrom had not dissipated by that time.” Orso, 266 F.3d at 1039. The First

Circuit held that Esquilin’s confession was not rendered involuntary solely by

deliberately coercive or improper police tactics. Esquilin, 208 F.3d at 321. So,

contrary to petitioner’s claim, the legal landscape did not change after respondent's

case was decided below. Instead, neither this case, nor Orso, nor Esquilin, has

adopted a per se rule holding that the deliberate failure to Mirandize a defendant

renders post-Miranda statements involuntary. Each case has applied the traditional

due process voluntariness test to the second statement. While they have reached

different results, that is not surprising since voluntariness findings depend so heavily

on the facts and circumstances of each case.°

The Missouri Supreme Court took care to address the circumstances that

rendered respondent’s Mirandized confession involuntary. Officer Hanrahan’s

intentional refusal to advise respondent of her rights at the beginning of the

interrogation process constituted but one such circumstance. Other indicia of

involuntariness inciude the fact that she had been awoken at 3:00 a.m., taken from

the hospital where she was sleeping by her burned child, and she was obviously

emotionally distraught. In contrast, no such extreme indicia were present in Orso or

Esquilin.

* Brown v. Illinois, 422 U.S. 590 (1975) (The question whether a confession is voluntary

must be answered on the facts of each case.)

11 12

CONCLUSION

The Missouri Court's decision was correct under existing Supreme Court precedent

In Westover v. United States, 384 U.S. 436, 496-97 (1966) (a companion For the foregoing reasons, the petition for a writ of certiorari should be

case consolidated with Miranda), this Court suppressed a confession because a denied.

prolonged, un-Mirandized, custodial interrogation preceded a Mirandized Respectfully submitted,

interrogation that produced a confession. This Court found that the eventual fh vy p=

Wii Lens Jercp

reading of the Miranda warnings did not ease the pressure from the first unlawful WILLIAM J. SWIFT ?

interrogation. Subsequently, this Court has described “the cardinal fact of rnc ye he aaa

Westover” as being “the failure of the police officers to give any warnings AMY M. BARTHOLOW

Assistant Public Defender

whatever to the person in their custody before embarking on an intense and Of Counsel

prolonged interrogation of him.” Michigan v. Mosley, 423 U.S. 96, 107 (1975).

Westover still applies in situations where the initial statement is involuntary, APRIL 18, 2003

and upon the facts of respondent's case, Westover would require reversal. The

_ Missoun Supreme Court never found that respondent’s first statement was

voluntary, and when judged side-by-side with the facts in Westover, it was clearly

involuntary. In fact, the “break-in-the-stream” analysis by the Missouri Supreme

Court, was a Westover analysis, it simply did not cite Westover. Rather, it cited

another Missouri case, State v. Fakes, 51 S.W.3d 24, 32-33 (Mo. App. 2001), for the

° proposition that “where the accused is subjected to a nearly continuou$ period of - .

interrogation, it is unreasonable to assume...that the simple recitation of Miranda

would resurrect the opportunity to obtain a voluntary waiver.” (Pet. App. 10-11).

As the Missouri Supreme Court’s decision was correct under Westover v.

United States, supra, this Court’s certiorari review is not warranted.

No. 02-1371

In the

SUPREME COURT OF THE UNITED STATES

STATE OF MISSOURI, _.

Petitioner, 7 —Recel ED

W 2” 5 vs

PATRICE SEIBERT, a | a

cLent

Respondent. - of wEAT US

On Petition for Writ of Certiorari

to the Missouri Supreme Court

DECLARATION OF SERVICE

I, Amy M. Bartholow, hereby declare that on this 18" day of April, 2003, a copy

of the Brief in Opposition for Respondent with attached in forma pauperis motion in the

above case was served by mail, first-class, postage prepaid, on: James R. Layton, State

Solicitor, P.O. Box 899, Jefferson City, MO 65102. Phone: (573) 751-3321, Counsel of

Record for Petitioner. All parties required to be served have been served.

I declare under penalty of perjury that the foregoing is true and correct.

Amy M. Bartholow

Assistant Public Defender

3402 Buttonwood

Columbia, MO 65201

_ Phone: (573) 882-9855

~ Of Counsel for Respondent

Executed before me this April 18, 2003.

tit Win,

SNe! an

‘a as a

=o" ete lind 5

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MISSOURI STATE PUBLIC DEFENDER SYSTEM

OFFICE OF STATE PUBLIC DEFENDER

2 BUTTONWOOD

COLUMBIA, MISSOURI 65201-3722

TELEPHONE: (573) 882-9855 FAX: (573) 875-2594

April 18, 2003

William K. Suter, Clerk

Supreme Court of the United States

One First Street NE

Washington, D.C. 20543

RE: State of Missouri v. Patrice Seibert, No. 02-1371

Dear Mr. Suter:

Enclosed for filing are: 1) the original and ten (10) copies of the Brief in

Opposition for Respondent; 2) the original and ten (10) copies of the motion to

proceed in forma pauperis with respondent's notarized affidavit attached; and 3) a

notarized declaration of service reflecting service on Petitioner’s counsel.

Thank you for your attention in this matter. Please contact me if the enclosed

documents prompt any questions.

Sincerely,

LA. ‘n/p O77), Hele’

AMY M. BARTHOLOW

Assistant Public Defender

Of Counsel for Petitioner

RECEIVED

APR 2 § 2005