Amicus Curiae Brief — Maryland v. Blake

Supreme Court.Us. |

FILED

No. 04-373 AUS 1 - 2005

IN THE

SUPREME COURT OF THE UNITED STATES

—+>

STATE OF MARYLAND

Petitioner,

—v.—

LEEANDER JEROME BLAKE,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

BRIEF AMICUS CURIAE OF THE NATIONAL

ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

IN SUPPORT OF RESPONDENT

Of Counsel: James J. Tomkovicz

Joshua L. Dratel Counsel of Record

Co-Chair, NACDL Amicus Committee University of lowa

1150 18th Street, N.W. - Suite 950 College of Law

Washington, D.C. 20036 lowa City, lowa 52242

(202) 872-8600 (319) 335-9100

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..............00ee000- iv

URS GS AED 6 ko bebe wen ece cakes ss odoece 1

STATEMENT OF THE CASE ......ccccccscccceces l

SUMMARY OF ARGUMENT ................2005- 5

ARGUMENT

L. VIOLATIONS OF THE PROHIBITION ON

POLICE-INITIATED INTERROGATION

FOLLOWING CLEAR REQUESTS FOR

COUNSEL SHOULD NOT BE

“CURABLE” DURING THE SAME

CUSTODIAL INTERROGATION ............ 9

A. Allowing Officers To “Cure” Their Violations

Of The Edwards Rule Is Inconsistent With The

Vital Purposes and Objectives Of That Rule .... 10

B. Allowing Officers To “Cure” Fhéir Violations

Of The Edwards Rule During The Same Custodial

Interrogation Will Undermine The Vital Interests In

Clarity and Guidance For Law Enforcement And

GR db ccancocvscdecksekcusasbeencctd 12

C. Allowing Officers To “Cure” Their Violations

Of The Edwards Rule Will Invite Circumvention

Of The Essential Safeguards Provided By That

SED pbc cuvecicnsecdbbukune b30eeb804se 60 14

D. The Balance of Interests At Stake Does Not

Justify The Conclusion That Edwards Violations

Ase CUBEBED 2. cc ccccoccccsccsctensecan .- 16

Il. IF VIOLATIONS OF THE EDWARDS

PROHIBITION ARE DEEMED CURABLE

DURING THE SAME CUSTODIAL

INTERROGATION, ONLY MEASURES THAT

CLEARLY ELIMINATE THE RISKS

GENERATED BY OFFICIAL INITIATION

SHOULD SUPPES «oc ccccccccsscccesnvces 19

Il. UNDER ANY DEFENSIBLE STANDARD FOR

DETERMINING WHETHER THE IMPACT OF

AN IMPROPER OFFICIAL INITIATION HAS

BEEN ELIMINATED, THE RECORD BELIES

THE POSSIBILITY THAT THE GRATUITOUS

AND COERCIVE VIOLATION OF THE

EDWARDS RULE WAS CURED ............ 23

OCUNCLUIBIUN on cccccccsevecncsnssuvneuneeeenee 30

ii

TABLE OF AUTHORITIES

Cases Page

Arizona v. Roberson,

486 U.S. 675 (1988) ............ 9, 11, 13, 15, 16, 20, 27

Blake v. State,

381 Md. 218, 849 A.2d 410 (2004)

Sains eeeneiebadbescetececes 3, 4, 5, 24, 25, 26, 27, 29

Davis v. United States,

CE 9, 12, 13, 17, 19, 22

Dickerson v. United States,

ee icons cee adcbeetenscceese ll

Edwards v. Arizona,

451 U.S. 477 (1981) ........... 3, 4, 5, 6, 7, 8, 9, 10, 11,

12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 27, 29, 30

Harris v. New York,

EE 16

Johnson v. United States,

i. Lien cecdaeeecackéetececese 15

McNeil v. Wisconsin,

a ce pa een cinhegtoncecets 11

Michigan v. Harvey,

ha: cnc ened ecboeessessseesens 11

Michigan v. Mosley,

te. 5. oad eves etbdeeesse ts 11, 19, 26

Page

Minnick v. Mississippi,

498 U.S. 146 (1990) ...... 9, 11, 12, 13, 15, 17, 18, 22, 28

Miranda v. Arizona,

384 U.S. 436 (1966)

chee 1, 5, 8, 12, 13, 14, 15, 16, 17, 18, 19, 23, 28, 30

Missouri v. Seibert,

124 S.Ct. 2601 (2004) .......... 8, 11, 12, 13, 14, 15, 16

Moran v. Burbine,

475 US. an SED ocneccccedecendasesoncnccones 17

New York v. Quarles,

GET UB. GRP Ge 0 cecccpescccccccccccocccscess 16

Oregon v. Bradshaw,

— 4) Serre ee 9,27

Oregon v. Elstad,

GIs SHOE oc ccccusceuescecsccosucdieuces 15

Oregon v. Hass,

GPG VOOEIOUED 0 ce ccccecesecccccceesséecsees 18

Patterson v. Illinois,

Se es SP Ec cc cc ccadesnssdcccoecessesens 12

Rhode Island v. Innis,

GE as ae GE o ceccnsntouséesacesaces 18, 27, 28

United States v. Gomez,

SET PAS RSID CRD Gee. BSGED cc ccccccccccccccccess 4

iv

United States v. Patane,

124 S.Ct. 2620 (2004)

INTEREST OF AMICUS'

The National Association of Criminal Defense Lawyers

(NACDL) is a nonprofit corporation composed of more than

11,000 attorneys and 28,000 affiliate members in 50 states.

Amicus is dedicated to ensuring justice and due process for

persons accused of crime, promoting the proper and fair

administration of American criminal justice systems, and

preserving the principles of liberty and equality embodied in

the Bill of Rights.

STATEMENT OF THE CASE

On September 19, 2002, Straughan Griffin was shot

and killed in front of his Annapolis home. The authorities

arrested Terrence Tolbert on October 25, and he made a

statement implicating respondent, Leeander Blake, in the

killing. Blake, a 17-year-old, was arrested at his home

between 4:30 and 5:00 a.m. the next day. While clad in only

boxer shorts and a tank top, hé was transported to the

Annapolis Police Department and escorted to an intake room.

Lead Detective William Johns advised Blake of his Miranda

rights. When he responded by clearly and unambiguously

requesting the assistance of counsel, Blake was placed in a

holding cell. The time was approximately 5:25 a.m.

At 6:00 a.m., Detective Johns came to the cell. In

accordance with Maryland law, he handed Blake a copy of the

arrest warrant and a statement of charges. The statement

1. Letters of consent to the filing of this brief have been lodged

with the Clerk of the Court pursuant to Rule 37.3. Pursuant to Rule 37.6,

counsel for amicus states that no counsel for a party authored this brief in

whole or in part and no person, other than amicus, their members or their

counsel made a monetary contribution to the preparation or submission of

indicated that Blake was charged with first and second degree _

murder, armed robbery, armed carjacking, and use of a

handgun in a crime of violence. Although Blake’s age made

him ineligible for capital punishment, the document declared

that the penalty for first degree murder was “DEATH.” It also

asserted that Tolbert had accused Blake of shooting Griffin,

taking his car keys, and running over him while leaving the

scene. Johns explained the charges to Blake, stating that they

were serious and informing him that he needed to read the

document carefully and make sure he understood it.

When Johns turned to leave the cell, Officer Reese,

who had no ostensible reason to be present, said to Blake in a

loud and confrontational tone, “I bet you want to talk now,

huh!” Johns reacted by telling Reese, “No, he doesn’t want to

talk to us. He already asked for a lawyer. We cannot talk to

him now.” He then pushed Reese from the cell block.

Blake remained in the cell, still wearing only his

underwear. Just twenty-eight minutes later, Detective Johns

returned. When he walked in front of the cell and handed

Blake his clothing, Blake inquired, “I can still talk to you?”

Johns asked if he now wanted to talk, and Blake said that he

did. A few minutes later, Blake was once again advised of his

rights. He waived those rights and agreed to talk without

counsel. He then made incriminating statements, explaining

his involvement in the events of September 19. Blake also

agreed to submit to a polygraph examination. He was

transported to another location, took the polygraph, and then

made additional statements.

Blake was indicted for first and second degree murder

and manslaughter. Before trial, he moved to suppress his

statements. At a suppression hearing, Blake testified that when

Detective Johns came to the cell with his clothing, he decided

to speak because of Officer Reese’s earlier statement and

2

because he was scared after seeing that he “was facing death.”

The judge granted the motion to suppress, finding that Blake

had requested counsel and that even though he had not

indicated a change of heart, Officer Reese had interrogated

him. She determined that “Blake’s question [of Johns was] in

direct response to Reese’s previous statement,” emphasizing

that a mere twenty-eight minutes elapsed between Reese’s

remark and Blake’s inquiry and concluding that the evidence

showed “one continuous stream of events.” According to the

judge, the state did not carry its “heavy burden” of showing

that Blake’s “waiver was not the result of the previous

coercive unlawful police conduct.”

In an unreported opinion, the Court of Special Appeals

reversed the Circuit Court’s ruling on the sole ground that

Officer Reese’s statement was not “interrogation.” The

Maryland Court of Appeals then reversed the intermediate

court’s ruling, affirming the trial court’s suppression order.

381 Md. 218, 849 A.2d 410 (2004). The court devoted most

of its opinion to the question of whether Officer Reese had

interrogated Blake, concluding that interrogation had indeed

occurred. It then turned attention to the State’s contention that

Blake had “reinitiated” the interrogation and had then waived

his rights. The court noted that the Circuit Court judge, by

finding that Blake’s “question was ‘in direct response to’

Officer Reese’s coercive statement,” had effectively concluded

that “the police [had] reinitiated the contact” after Blake had

invoked his right to counsel. Jd. at 238, 849 A.2d at 422.

The court agreed that the police had violated the rule of

Edwards v. Arizona by initiating contact with Blake after his

request for counsel. Blake’s inquiry whether he could “still

talk to” Officer Johns was not an initiation “in a legal sense”

because it was preceded by the delivery of

a document that [erroneously] told him he was

3

subject to the death penalty . . .; [Blake] was

seventeen years of age; he had not consulted

with counsel; he was in a cold holding cell with

little clothing; an officer had suggested in a

confrontational tone that [he] might want to

talk; and the misstatement as to the penalty as

. . . ‘DEATH’ had never been corrected.

[Moreover, t]here was no break in custody or

adequate lapse in time sufficient to vitiate the

coercive effect of the impermissive [sic]

interrogation. Jd. at 239, 849 A.2d at 422.

Significantly, the court “reject[ed] the State’s argument

that . . . Detective Johns somehow cured the violation by” his

reaction to Officer Reese’s impropriety. Jd. According to the

court, the trial judge’s conclusion that Johns’s “remarks did

not negate” the effect of Reese’s conduct “was not clearly

erroneous,” and the “very short,” twenty-eight minute break

between Reese’s impropriety and Blake’s “inquiry . . .

indicat[ed] that the latter was a continuation of the former.” Jd.

The “record support[ed] the. . . finding that [Blake’s] question

was in direct response to Officer Reese’s” conduct and that he

“did not ‘initiate’ conversation with the police.”/d. at 239-40,

849 A.2d at 422. In sum, the Court of Appeals did not reject

the possibility that the authorities could cure a violation of the

prohibition on police-initiated interrogation following a clear

request for counsel. The court merely held that the record and

findings in this case did not support the contention that a

“cure” had been effected. The court evinced concern that if

courts were excessively willing to validate the authorities’

claims that they had “cured” their unlawful initiations, the

protections afforded by Edwards v. Arizona “‘would be

rendered meaningless.” Jd. at 240, 849 A.2d at 423 (quoting

United States v. Gomez, 927 F.2d 1530, 1539 (11th Cir.

1991)). Ultimately, the court ruled “that all statements made

by [Blake] after he invoked his Miranda rights [were]

4

inadmissible and [that] the motion to suppress the statements

was properly granted.” Jd.

The State of Maryland petitioned this Court for a writ

of certiorari to the Court of Appeals of Maryland. The

petition raised a single question: whether the rule of Edwards

v. Arizona should be interpreted to permit the authorities to

“cure” their violations of the prohibition on police-initiated

interrogation following a suspect’s invocation of his right to

counsel. Put otherwise, the question presented was whether a

court may properly conclude that a suspect has initiated

communications with the police afier an improper official

initiation. On April 18, 2005, this Court granted the writ.

SUMMARY OF ARGUMENT

According tc the Miranda doctrine, a request for

counsel by a suspect in custody is a “significant event” that

calls for additional Fifth Amendment safeguards. Following

a suspect’s assertion of his right to counsel, officer-initiated

interrogation is forbidden. If officers do initiate

communications in violation of this prohibition, it should not

be possible for them to “cure” that violation during the same

custodial interrogation. Recognition of a cure option is

Inconsistent with the goal of protecting suspects against

badgering by the authorities and with the objective of

preventing the unconstitutional introduction of compelled

statements. No supposedly curative measures can adequately

respond to the heightened, “unacceptably great” risk of

compulsion generated by the official impropriety.

The provision of clear guidance and bright-line rules

for officers and courts is one of Miranda’s principal

advantages. Endorsement of the possibility that officers can

cure the harm done by improper initiations would seriously

undermine the clarity of and guidance provided by the rule of

5

Edwards v. Arizona. Denying the cure option would further

vital interests in clarity and guidance.

“\” “In addition, allowing officers to cure violations of the

rule against post-invocation initiation will invite officers to

circumvent that rule. The possibility of transgressing the

Edwards prohibition then taking curative steps will tempt

officers to exploit the vulnerability of those who have clearly

evinced a need for assistance. The result will be an erosion of

respect for an essential Fifth Amendment safeguard outside the

courtroom and heightened risks of constitutional violations in

the courtroom.

Finally, the balance of interests does not justify a cure

option. The interests in safeguarding against intensified nsks

of compulsion, in maintaining Miranda’s clarity, and in not

providing incentives to circumvent the Edwards rule are

weighty. On the other hand, the current law already provides

a number of alternatives for obtaining uncoerced statements

from suspects—even those who have asserted their entitlement

to counsel. These alternatives adequately serve legitimate

interests in effective law enforcement. Adding the possibility

of violating the Edwards rule, then curing those violations,can -

only skew the balance by increasing the harm to the Fifth

Amendment interests served by Miranda while only

marginally furthering proper law enforcement efforts.

If the Court does endorse the possibility of curing

Edwards violations, the same balance of interests dictates

adoption of a stringent, demanding standard for determining

whether the risks of improper initiation have been eliminated.

The psychological impact on a vulnerable suspect of seeing

and hearing officers disregard a request for assistance is likely

to be devastating. A cure standard that is appropriately

sensitive to the objectives of Edwards must seek to ensure that

this impact, and the consequent risks of compulsion, have been

6

entirely eliminated. The law should demand proof by the

government that there is no causal connection between the

official misconduct and the suspect’s willingness to discuss the

investigation. Put simply, if cure is possible, it should be

found only if it is clearly established that a reasonable person

in the suspect’s position would not have been influenced or

prompted to initiate communications by the officer’s earlier

initiation. This demanding standard is needed to respond to

the constitutional risks the officers have created. Moreover,

this heavy burden is fair, even-handed, and justified because

the increased risks are the direct result of avoidable, official

impropriety and because a suspect, to gain the additional

protection furnished by Edwards, must clearly and

unambiguously express a desire for counsel.

Under any rational standard for evaluating whether an

official initiation has been cured, even a standard that is

inappropriately lenient, the record in this case cannot possibly

support a conclusion that the police cured their transgression.

The 17-year-old suspect, arrested in the early morning and

wearing only underwear, was transported to a holding cell. He

clearly asked for counsel. Less than half an hour later,

Detective Johns delivered a document that informed him that

he was charged with murder, falsely stated that the penalty was

DEATH, and included a blame-shifting statement by another

man. The detective stressed the serious nature of the charges

and instructed the suspect to read the document. Officer

Reese, who had no reason to be present, directly challenged the

suspect to respond, stating, “I bet you want to talk now, huh!”

Each officer’s conduct constituted a coercive initiation of

communications. Both in combination sent an overpowering

message of disregard for the suspect’s need for assistance.

The State’s argument that the risks were cured rests

entirely on the a single fact-that Detective Johns reacted to

Officer Reese’s remark by saying that they could not talk to the

:

ie

suspect and by pushing him from the jail cell. This minimal

action, which was not directed toward the suspect, could not

have begun to combat the risks engendered by Reese’s charged

statement. Moreover, no effort was made to combat the

impact of Detective Johns’s unjustified actions and words and

of the erroneous message that the suspect was facing DEATH.

When the detective returned to the cell a mere thirty minutes

later, the suspect asked whether he could “stil/ talk” to the

officer. The evidence showed and the lower courts found that

this inquiry was directly responsive to Officer Reese’s

improper remark. The State concedes that it was a reaction to

the information in the document that he had received. The

strong causal connections between the official initiations of

communications and the suspect’s conduct preclude a finding

of cure and a conclusion that the suspect initiated the exchange

that led to his admissions. The decision of the Court of

Appeals should be affirmed.

ARGUMENT

After nearly four decades as the law of the land, the

dictates of Miranda v. Arizona, 384 U.S. 436 (1966), have

become “important and accepted element[s] of the criminal

justice system.” Missouri v. Seibert, 124 S.Ct. 2601, 2614

(2004) (Kennedy, J., concurring). Yet Miranda’s vital

“protect[ion] against violations of the Self-Incrimination

Clause,” United States v. Patane, 124 S.Ct. 2620, 2626 (2004),

will not long remain “important” or “accepted” if both its

exclusionary consequences-i.e., the shield it furnishes in the

courtroom—and its substantive standards~i.e., the shelter it

provides in the police station—are consistently diluted. The

narrowness of the specific question before the Court should

not obscure the significance of the competing interests

involved. At stake here are the integrity and fairness of the

balance of interests underlying Miranda, the clarity of the

guidance provided by the rule of Edwards v. Arizona, 451 U.S.

8

477 (1981), and, ultimately, the preservation of respect for the

Fifth Amendment privilege. A just balance in this case

requires affirmance of the lower court's ruling. A fair balance

for all cases requires affirmation of the constitutional

protection that Edwards extends to the most vulnerable

suspects.

I. VIOLATIONS OF THE PROHIBITION ON

POLICE-INITIATED INTERROGATION

FOLLOWING CLEAR REQUESTS FOR

COUNSEL SHOULD NOT BE “CURABLE”

DURING THE SAME CUSTODIAL

INTERROGATION

An “assertion of the right to counsel [is] a significant

event” that calls for “additional safeguards” against violation

of the Fifth Amendment privilege. Edwards v. Arizona, 451

U.S. at 484-485. Consequently, whea a suspect in custody

invokes his right to counsel, officers may interrogate him only

if counsel is present or the suspect initiates further

communications. Edwards v. Arizona, 451 U.S. at 484-85; see

also Davis v. United States, 512 U.S. 452, 458 (1994); Minnick

v. Mississippi, 498 U.S. 146, 150(1990); Oregon v. Bradshaw,

462 U.S. 1039, 1043 (1983). If officers initiate

communications with the suspect, no waiver of nghts can be

valid. See Arizona v. Roberson, 486 U.S. 675, 681 (1988)

(waiver at authorities’ instigation is presumed compelled, not

the product of voluntary choice). The first question here is

whether a violation of the rule barring the initiation of

communications by officers can be cured. As a general rule,

official violations of the Edwards rule should not be

“curable.”? Once officers have initiated communications with

2. It is not the contention here that after an officer initiates

communications following a request for counsel, a suspect himself can never

(continued...)

a suspect in custody, it should not be possible to conclude that

the suspect has initiated communications with the authorities,

countermanding his decision to rely on counsel.’

A. Allowing Officers To “Cure” Their Violations

Of The Edwards Kule Is Inconsistent With The

Vital Purposes and Objectives Of That Rule

The prohibition of officer-initiated interrogation

following a suspect’s clear request for counsel was developed

in response to this Court’s well-founded belief that a suspect

who has unambiguously expressed a need for assistance to the

authorities has demonstrated an incapacity and vulnerability

that dramatically heighten the risks of compulsion already

inherent in the custodial interrogation atmosphere. The

purpose of the ban on officer-initiated interrogation is to

prevent the authorities from “badgering a [suspect] into

2. (...continued)

initiate communications with law enforcement. The contention here is that

a bright-line rule ought to govern as long as the same custodial interrogation

continues. If the facts clearly establish that a subsequent custodial

interrogation is a genuinely separate and distinct experience from the one

in which officers failed to respect the Edwards prohibition, it may be

possible for a suspect to initiate communications with the authorities.

Factors potentially relevant to deciding whether an interrogation context is

genuinely separate and distinct could include the length of time that has

passed, whether custody has been continuous or interrupted, whether the

officers are the same, and whether the offense is the same, among others.

The relevant question would be whether the suspect, or a reasonable person

in the suspect’s position, would understand the custodial interrogation to be

entirely independent of the one in which officers disregarded or ignored his

request for assistance and no single fact should automatically be

determinative.

3, Because “initiation,” by definition, is an inquiry into who first

expressed a desire to discuss the investigation, once officers initiate

communications, a suspect cannot initiate communications during the same

custodial interrogation.

10

Waiving his previously asserted . . . rights.” Michigan v.

Harvey, 494 U.S. 344, 350 (1990). The ultimate objective is

to “ensure{] that any statement made in subsequent

interrogation is not the result of coercive pressures.” Minnick

v. Mississippi, 498 U.S. at 151.4 This “second layer of

prophylaxis,” McNeil v. Wisconsin, 501 U.S. 171, 176 (1991),

is a necessary shield against an “unacceptably great” risk, see

Dickerson v. United States, 530 U.S. 428, 442 (2000), that a

Suspect will be compelled to confess and that his compelled

Statement will be used to incriminate him in violation of the

Fifth Amendment. See Missouri v. Seibert, 124 S.Ct. at 2608

(Suspect’s exercise of rights must be honored to reduce the risk

of coercion and to enforce the Self-Incrimination Clause).

By improperly initiating communications with a

suspect who “believes that he is not capable of undergoing . .

- questioning without advice of counsel,” Arizona v. Roberson,

486 U.S. at 681, and has “expressed his own view that he is

not competent to deal with the authorities without legal

advice,” Michigan v. Mosley, 423 U.S. 96, 110 n.2 (1975)

(White, J., concurring in the result), officers exploit the

Suspect’s weakness, intensify the pressures already present,

and engender an undeniably “serious risk” of compulsion.

Roberson, 486 U.S. at 686. Indeed, when officers confront an

avowedly vulnerable suspect with the message that his need

for counsel will not be honored the presumption of compulsion

4. The State at times describes the purpose of the Edwards rule

cortectly. Some of its descriptions, however, misleadingly suggest that

Edwards was designed “to ensure that a suspect retains the right to choose

whether to remain silent or speak to the police.” Brief for Petitioner at 16,

17. Clearly, the Edwards rule does not preclude a suspect from changing his

mind on his own, but its thrust and its prime objective is to protect needy,

vulnerable suspects against compulsion, nof to preserve their right to choose.

11

that underlies Miranda’s preventive scheme is most justified.°

As long as the same custodial interrogation continues, a

subsequent communication by the suspect should be presumed

to be the result of the officer’s impropriety, not the product of

an unprompted, voluntary change of heart regarding the need

for assistance.

Because “[p]reserving the integrity of the accused’s

choice to communicate with the police only through counsel is

the essence of Edwards and its progeny,” Patterson v. Illinois,

487 U.S. 285, 291 (1988), the Court should hold that a suspect

cannot initiate communications once communications have

already been initiated by the authorities. The “cure” option

advocated here “is inconsistent with Edwards’[s] purpose to

protect the suspect’s right to have counsel present at custodial

interrogation,” Minnick v. Mississippi, 498 U.S. at 154, and

would seriously undermine the primary objective of ensuring

that convictions are not based upon coerced statements. A

recognition that violations can be cured during the same

custodial interrogation would “effectively threaten[] to thwart

Miranda’s purpose of reducing the risk that a coerced

confession would be admitted.” Missouri v. Seibert, 124 S.Ct.

at 2613.

B. Allowing Officers To “Cure” Their Violations Of

The Edwards Rule During The Same Custodial

Interrogation Will Undermine The Vital Interests

In Clarity and Guidance For Law Enforcement

And Courts

5. See Davis v. United States, 512 U.S. at 472-73 (Souter, J.,

concurring in the judgment) when a suspect's expressed wish for counsel is

ignored, in contravention of the rights recited, “he may well see further

objection as futile and confession . . . as the only way to end his

interrogation”).

12

In general, the “clarity” of Miranda doctrine “is one of

its strengths.” Missouri v. Seibert, 124 S.Ct. at 2616 (Kennedy,

J., concurring in the judgment); see also Arizona v. Roberson,

486 U.S. at 680 (reiterating that “ease and clarity of

application” is a “‘principal advantage[]’” of Miranda). The

“bright-line” nature of the Miranda scheme has the virtue of

clearly informing officers of the specific restrictions placed

upon them by the Fifth Amendment and of clearly informing

judges of the circumstances that determine admissibility. See

Minnick v. Mississippi, 498 U.S. at 151; Arizona v. Roberson,

486 U.S. at 681. The guidance provided enables officers to

avoid conduct that can jeopardize constitutional rights and

undermine investigations, see Davis v. United States, 512 U.S.

at 461, and enables the courts to “conserve judicial resources.”

Minnick v. Mississippi, 498 U.S. at 151.

The Court has “repeatedly emphasized the virtues of a

bright-line rule in cases following Edwards,” and has sought

to develop standards to govern invocations of counsel that

“serve[] the purpose of providing ‘clear and unequivocal’

guidelines.” Arizona v. Roberson, 486 U.S. at 681-682. In

cases involving significant invocation of counsel issues,

uncertain, ill-defined standards have been rejected because

they could have resulted in reductions of “clarity and ease of

application,” Davis v. United States, 512 U.S. at 461, could

have “spread confusion through the justice system{,]” and

could have led “to a consequent loss of respect for the

underlying constitutional principle.” Minnick v. Mississippi,

498 US. at 155.

The clearest reasonable alternative in situations

involving initiations by officers following unequivocal

requests for assistance is a rule that initiation by the suspect is

not legally possible during the same _ custodial

interrogation-i.e., a rule that precludes the option of “curing”

Edwards violations. This approach would inform officers that

13

once they fail to honor a suspect’s request, the only

circumstance in which they may proceed with interrogation

would be with counsel present. A contrary holding-a

conclusion that officers can violate Edwards and then cure

their transgressions—would require a delineation of standards

- for judging whether sufficient curative steps have been taken.

As will be seen below, it is possible to devise such standards.

However, any standards capable of furthering the purposes of

the Edwards doctrine effectively would inevitably inject

ambiguity and uncertainty, spreading confusion that would

undermine the goals of providing officers and courts with

guidance and conserving judicial resources. This Court should

preserve the bright-line character of the Edwards doctrine by

declaring, once again, that initiation by an officer precludes

further interrogation without counsel.

C. Allowing Officers To “Cure” Their Violations

Of The Edwards Rule Will Invite Circumventior Of

The Essential Safeguards Provided By That Rule

From long before Miranda until the present, the Court

has devoted considerable effort to developing legal standards

that ensure that efforts to obtain and introduce confessions do

not threaten fundamental constitutional liberties. In part

because of an understandable desire to protect society from

crime and in part because of resistance to the constitutional

constraints imposed by the Court’s rulings, see Missouri v.

Seibert, 124 S.Ct. at 2608, 2613, law enforcement agents have

sometimes sought to circumvent those constraints. Some legal

standards invite evasion. Miranda itself was in part a response

to official exploitation of the malleability and indefiniteness of

the Due Process-coerced confession doctrine. Because of the

fact-specific, totality-of-the-circumstances nature of that

doctrine, officers and courts who were so inclined could

almost always distinguish a particular case from any of the

Court’s precedents. Moreover, just last term, the Court

14

acknowledged that in response to Oregon v. Elstad, 470 US.

298 (1985), law enforcement agencies had developed a

“question-first” technique whose very purpose was “to

circumvent Miranda v. Arizona.” Missouri v. Seibert, 124

S.Ct. at 2614 (Kennedy, J., concurring in the judgment).

. This Court has recognized the likelihood that officers

will be tempted to “bypass proper procedures” as dictated by

the Edwards doctrine, see Arizona v. Roberson, 486 U.S. 688

n. 7, and has been influenced by the fact that “pressures” and

“abuses . . . may be concomitants of custody.” Minnick v.

Mississippi, 498 U.S. at 153. Unless there is very good

reason, the Court should avoid interpretations of Edwards that

invite exploitation and circumvention by “officer[s] engaged

in the often competitive enterprise of ferreting out crime.”

Johnson v. United States, 333 U.S. 10, 14 (1948). There is

very little, if any, reason to authorize officers to “cure”

improper initiations of communications in disregard of

suspects’ requests for counsel, yet the option of “cure” will

undoubtedly tempt many to ignore Edwards’s constraints and

endeavor to lure suspects into retracting expressed wishes for

assistance. Officers who fear that a suspect will not change his

mind on his own, at least not before the formal processes of

prosecution inject counsel into the equation, will see the

possibility of cure as an opportunity to prompt the suspect to

Say something. When officers learn that they can undo their

own wrongs, a fair number will predictably exploit the

opportunity.°

6. An officer's subjective intention is not relevant to determining

whether she has complied with Miranda. See Missouri v. Seibert, 124 S.Ct.

at 2612 n.6 (plurality opinion); id. at 2617-19 (O’Connor, J., dissenting).

Consequently, the strong temptation to deliberately ignore requests for

Official disregard of constitutionally-rooted safeguards

can only frustrate the purposes of those safeguards and erode

respect for the underlying constitutional guarantee. Standards

that tempt and are likely to induce officers to ignore Miranda’s

protective scheme and exploit opportunities to take advantage

of vulnerable suspects will surely undermine the importance

and acceptance of that scheme. To forestall another wave of

deliberate, corrosive disrespect for Miranda’s constitutional

rules—a vave similar to the one that precipitated Seibert—the

Court s).ould deny the possibility of “cure

D. The Balance of Interests At Stake Does Not

Justify The Conclusion That Edwards Violations

Are Curable

The “concerns underlying the Miranda .. . rule must be

accommodated to other objectives of the criminal justice

system.” United States v. Patane, 124 S.Ct. at 2631 (Kennedy,

J., concurring in the result). Put otherwise, in interpreting

Miranda’s “preventative” scheme, it is “essential” to “strike[]

an appropriate balance” between “the suspect’s freedom from

coercion” and “legitimate law enforcement” interests. Arizona

v. Roberson, 486 U.S. at 691 (Kennedy, J., dissenting). Such

interest balancing has informed the Court’s resolution of a

variety of Miranda issues. See, e.g., New York v. Quarles, 467

U.S. 649 (1984); Harris v. New York, 401 U.S. 222 (1971).

The weighty interests on one side of the scale have

already been discussed. A rule permitting officers to cure

Edwards violations heightens the risks that vulnerable suspects

will be compelled to confess and that the introduction of those

confessions will result in Fifth Amendment violations.

6. (...continued)

officers will seek to cure will include both innocent errors and deliberate

disregards of the Edwards rule.

16

Moreover, a “cure” alternative would “muddy{}] Miranda’s

otherwise relatively clear waters,” Moran v. Burbine, 475 U.S.

412, 425 (1986), and would provide potent incentives to evade

the critical safeguards afforded by the Edwards rule.

Consequently, the Miranda doctrine should be construed to

permit cures only if a refusal to dilute Edwards by allowing

cure would defeat legitimate and substantial law enforcement

interests.

Law enforcement interests in obtaining voluntary

admissions are more than adequately served by the current

doctrine. A rule that would allow cures of Edwards violations

would promote legitimate interests marginally, if at all, while

inflicting substantial harm on constitutional liberties. First,

Edwards, itself, expanded the opportunities to obtain

admissions following an invocation of the right to counsel.

Miranda had rigidly declared that after a request for counsel,

“the interrogation must cease until an attorney is present.” 384

U.S. 436, 474 (1966) (emphasis added). The Edwards Court

broadened law enforcement authority by permitting

interrogation absent counsel whenever a suspect initiates

communications and waives his rights. Second, officers are

constrained by the Edwards prohibition only in the limited

number of cases in which suspects clearly and unambiguously

request counsel. Davis v. United States, 512 U.S. 452 (1994).

Moreover, even in this small subset of cases, officers are not

barred from securing admissions of guilt. They may

7. This is not a case in which there is a need to justify an

“extension” of the protections afforded by Miranda. The approach

proposed by the State—allowing officers to violate the law, then cure their

transgressions—would contract the bright-line, systemic protection already

afforded by Edwards by according officers yet another opportunity to

conduct custodial interrogation outside the presence of counsel.

Consequently, this case bears similarity to Minnick v. Mississippi, 498 U.S.

146 (1990), a decision refusing to shrink Edwards’s protection by allowing

officers to initiate interrogation following consultation with counsel.

17

interrogate if the suspect on his own initiative evinces a

willingness to discuss the investigation and waives his rights,

Minnick v. Mississippi, 498 U.S. at 156, and they may

interrogate in the presence of counsel. Id. at | 52-53. And even

if the suspect does not initiate communications and counsel is

not present, they may interact with the suspect in any way that

does not rise to the level of interrogation. Edwards v. Arizona,

451 US. at 486; see, e.g., Rhode Island v. Innis, 446 U.S. 291

(1980).

If the Court rejects the possibility of cure, the only

instances in which statements will be excluded are the

undoubtedly smal) number of cases in which officers, within

the same custodial interrogation, ignore clear requests for

counsel, initiate communications, and then conduct

interrogations. In those cases, the suppression of a suspect’s

admissions is amply justified by an appropriate balance of

interests.*

To give substance to Miranda’s dictates, the Edwards

doctrine “insist[s] that neither admissions nor waivers are

effective unless there are both particular and systemic

assurances that the coercive pressures of custody were not the

inducing cause.” Minnick v. Mississippi, 498 U.S. at 155

(emphasis added). Occasionally, the systemic assurances

necessary to prevent unacceptable risks of compelled self-

incrimination at trial will lead to the exclusion of a voluntary

— a the scope of

8. In striking the balance, the severe limitations on

exclusion under Miranda must also be taken into account. The absence of

a fruit-of-the-poisonous tree doctrine, see United States v. Patane, 124 S.Ct.

at 2620 (2004), and the availability of impeachment use of a suspect’s

statements even when his request for counsel has been dishonored, see

Oregon v. Hass, 420 U.S.714 (1975), weigh heavily on the government s

side of the balance, supporting the contention that law enforcement interests

are adequately served by the current doctrine.

18

statement. This cost is offset, and justified, by the numerous

instances in which the same systemic assurances exclude a

compelled confession that would not be identified by a case-

by-case approach.’ In the context at issue here, the minor harm

to law enforcement interests caused by denying the “cure”

option is clearly counterbalanced by substantial gains in

protecting the constitutional rights of the most susceptible

suspects. The current doctrine, without a “cure” option,

already affords generous opportunities for law enforcement to

obtain uncoerced cooperation from those suspects. Davis v.

United States, 512 U.S. at 461 (the Edwards prohibition does

not “unduly hamper{] the gathering of information”). The

availability of a cure alternative would skew the balance,

tipping it decidedly in favor of law enforcement interests.

In this case, it is indisputable that the Suspect was

subjected to one, continuous custodial interrogation. Once the

authorities initiated communications with him, he was not

subject to further interrogation unless counsel was present.

Because he was interrogated in the absence of counsel, the

conclusion that his statements were inadmissible was clearly

correct and should be affirmed.

Il. IF VIOLATIONS OF THE EDWARDS

PROHIBITION ARE DEEMED CURABLE

DURING THE SAME CUSTODIAL

INTERROGATION, ONLY MEASURES THAT

CLEARLY ELIMINATE THE RISKS

GENERATED BY OFFICIAL INITIATION

SHOULD SUFFICE

9. Denial of an opportunity to “cure” official initiations would not

“transform the Miranda safeguards into wholly irrational obstacles to

legitimate police investigative activity.” Michigan v. Mosley, 423 U.S. 96,

102 (1975)(emphasis added). Instead, allowing cure would lower a rational

barrier to illegitimate conduct likely to generate compulsion to speak.

19

The balance >f pertinent interests militates powerfully

against the “cure” option advocated by the Siate. If the Court

is nonetheless persuaded that officers should be able to remedy

their own wrongs, the same reasons that support outright

rejection of the “cure” .'ternative dictate adoption of a

demanding standard for detern.ining whether officers have

taken sufficient curative steps. A weak, toothless standard

would engender unacceptably high risks of conviction based

on compelled statements and would be unfair in light of the

demand that a suspect must unambiguously ask for counsel to

merit the protection of Edwards.

As already noted, the Edwards rule is designed to

prevent officers from “badgering” vulnerable suspects into

waiving their rights and submitting to questioning without

counsel. Officer-initiated interrogation after a clear request for

counsel is forbidden because it “will surely exacerbate

whatever compulsion to speak the suspect may be feeling.”

Arizona v. Roberson, 486 U.S. at 686. The concern is that

answers given in such circumstances will be the product of

compulsion and that their admission into trials will violate the

Fifth Amendment privilege.

A suspect who has seen and heard officers disregard a

clear request for assistance is likely to feel that the entitlement

to counsel is meaningless and that the authorities—those with

power to control his fate—desire, indeed, are determined, to

question him without assistance. Put simply, the psychological

impact of repeated approaches on an individual who has

unambiguously evinced his incompetence and vulnerability is

likely to be devastating. Steps taken at that point to counteract

the message conveyed by the initiation are quite unlikely to

restore the status quo ante-i.e., to put the suspect in the

position he was in immediately after his request. If anything,

efforts to contradict the impression created by official

20

initiation are likely to confuse and unsettle a needy suspect.'°

The logic that underlies the Edwards prohibition

suggests that cures should be possible, if at all, only when the

government shows post-initiation measures or events that

clearly eliminate the psychological impact and heightened risks

of compulsion generated by an officer’s improper conduct.

The law should demand not only a clear negation of the

message delivered, but also proof that there was no causal

connection between the officer’s initial corduct and the

suspect’s willingness to discuss the investigation. Assuming

an objective standard is appropriate, cure should be found only

if it is established that a reasonable person in the suspect’s

position" clearly would not have been influenced or prompted

to initiate communications by the officer’s earlier initiation.

A less stringent standard would invite the very risks that

Edwards was designed to combat.

Moreover, a demanding standard such as that suggested

is fair and even-handed. After all, the only reason that a cure

is required is the government’s failure to abide by (or

deliberate defiance of) the clear, simple dictates of the

Edwards rule. A demand for a clear showing that there is no

connection between the officer’s impropriety and the suspect’s

conduct-i.e., that the suspect’s desire to talk was not

influenced by the officer’s expressed wish to interact without

a lawyer present—is needed to inform the law enforcement

community that the Edwards prohibition is important and must

be respected. Only a stringent standard can motivate a

10. These are additional reasons why rejection of the possibility

of “cure” is by far the preferable approach.

11. At the very least, evident characteristics of the suspect and of

his situation-e.g., his age, the time of day—should be taken into account in

assessing the suspect’s position.

21

desirable level of compliance. In addition, a suspect must be

clear in expressing his desire for counsel and cannot gain the

shelter furnished by Edwards unless he avoids all ambiguity.

Davis v. United States, 512 U.S. at 459. To protect a suspect

who has satisfied this demanding invocation standard, it is

only fair to require the government to show that he-was clearly

not influenced by official initiation and decided, entirely on his

own, to change his mind about the need for assistance.’

When the facts of this case are measured against an

appropriately demanding standard, it is clear that the Court of

Appeals correctly rejected the government’s claim that the

Edwards violation in this case was cured. The Maryland

courts found a psychological connection between what Officer

Reese said and the juvenile suspect’s inquiry whether he could

“still” talk to the police. Moreover, the State did not show that

a reasonable suspect in Blake’s position clearly would not have

been influenced or prompted by the official conduct in

violation of Edwards. The sole fact relied upon by the

State-that Detective Johns reacted negatively to his

colleague’s improper statement—was patently inadequate to

12. No effort is made here to catalogue all of the factors that might

be relevant to deciding whether the proposed standard has been satisfied.

The time between the official initiation and the putative suspect initiation is

potentially pertinent, though a long lapse alone should hardly suffice in light

of the increased pressure generated by prolonged custody. Minnick v.

Mississippi, 498 U.S. at 153. Statements made directly to the suspect are

also potentially relevant, but care should be taken to ensure that further

communications by the authorities do not exacerbate the situation. After all,

to a suspect who has heard officers initiate the dialogue, a statement

admitting error and reiterating that the choice to be questioned without

counsel is the suspect’s might well intensify the feeling that the authorities,

in fact, desire to question him without counsel. The difficulty of specifying

appropriate factors and the uncertain impact of any subsequent event or

conduct provide additional reasons not to allow cures at all.

22

eliminate the heightened risks of compulsion in this case."

Il. UNDER ANY DEFENSIBLE STANDARD FOR

DETERMINING WHETHER THE IMPACT OF

AN IMPROPER OFFICIAL INITIATION HAS

BEEN ELIMINATED, THE RECORD BELIES

THE POSSIBILITY THAT THE GRATUITOUS

AND COERCIVE VIOLATION OF THE

EDWARDS RULE WAS CURED

Under either of the approaches already proposed for

resolving the issue raised by this case, the conclusion of the

Court of Appeals must be affirmed. It would be a serious

mistake to adopt a more lenient standard for evaluating

whether curative measures are sufficient. Nonetheless, the

facts of this case are so egregious that no finding of cure is

possible under even the least stringent of tests.

The State contends that the appropriate approach is one

that looks to the totality of the circumstances, see Brief for

Petitioner at 10, 19, to determine whether “curative measures

and other intervening factors . . . show that the police honored

the suspect’s choice whether to speak, and [that] the suspect

changed his mind.” /d. at 10. Alternatively, the State suggests

that the proper inquiry is whether the police “conveyed” or

“made it clear” to the suspect “that the police intended to

honor his choice to communicate with them only through

counsel.” Jd. at 28, 30. The totality nature of this

determination would seriously undermine Miranda’s goal of

providing clear, bright-line guidance for officers and courts.

More important, the proposed approach is insufficiently

13. Moreover, as will be seen below, Johns’s conduct in delivering

the erroneous charging statement to Blake, emphasizing the seriousness of

the charges, and informing Blake that he needed to read the document

constituted additional, highly coercive, uncured initiation by the authorities.

23

demanding in light of the fact that it is designed for cases in

which an avowedly vulnerable suspect has already seen his

request for counsel dishonored by the authorities. Because the

police have already shown the suspect that they do not intend

to respect his request, only a showing that the suspect clearly

was unaffected by the official impropriety should suffice.

Even under the State’s dangerously permissive

standard, the record in this case cannot support a cure finding.

The undisputed facts fall well short of establishing that the

police “honored” Blake’s choice not to deal with the

authorities at any point in the process. The lower courts did

not find, and, indeed, it would have been irrational to find, that

the authorities made it “clear” to Blake that “they intended to

honor his choice to communicate with them only through

counsel.” Instead, the Maryland courts rejected the claim that

the official impropriety was cured and concluded that Blake’s

supposed “initiation” was “‘in direct response to”” the

“coercive” conduct of the police.'* Blake v. State, 381 Md.

218, 238-39, 849 A.2d 410, 422 (2004). The fact findings and

legal conclusions of the lower courts are unimpeachable on

this record.

At the outset, the backdrop for the events in this case

must not be overlooked. Respondent was a 17-year-old

juvenile who was taken from his home in the early morning

hours. While still in a state of undress that could only nave

increased his vulnerability, he was placed in a holding cell. He

then clearly informed the authorities that he was incapable of

14. This includes both the judge who ruled on the suppression

motion ari the Court of Appeals. The intermediate Court of Special

Appeals erroneously reversed for lack of interrogation, not because the

respondent’s question was independent of the officer’s initiation of

communications. Consequently, the State’s position finds no support in the

record or in any of the three lower court rulings.

24

ee re,

dealing with them without legal assistance.

Next, the nature of the “official initiation” that

occurred must be taken into account. Officers returned to

Blake’s holding cell a mere thirty-five minutes after he had

asked for l. One officer handed him the charging

document and emphasized that the charges were serious and

that he needed to read and understand them. Along with an

erroneous description of the penalty for the offense as

“DEATH,” the papers informed Blake that his cohort had

made a statement blaming him for the murder. In conjunction

with the delivery of the document, Officer Reese, who had no

legitimate reason for being present. iirected toward Blake a

gratuitous, “loud and confrontational” remark, saying “I bet

you want to talk now, huh!”” Jd. at 224, 849 A.2d at 413."

Accurate description of the specific Edwards violation

that occurred is important. One cannot sensibly decide

whether officers have “cured” the harm of their improper

initiation unless the nature of that initiation and the magnitude

of that harm are identified. Clearly, it should be harder to

eliminate the psychological effects of a particularly coercive

Official initiation. It should be much more difficult to

counteract a potent message of disrespect for a suspect’s clear

request for counsel. The State’s portrayal of the initiation that

occurred misleadingly suggests that it consisted of a simple,

“unexpected comment,” Brief for Petitioner at 3, and that it

was a mere improper “remark,” id at 7, and a “single

impropriety.” Jd. at 19. In fact, the initiation of

communications in this case was at the opposite end of the

spectrum. Officer Reese’s uncalled for statement alone sent an

15. The State punctuates this “statement” with a question mark.

See Brief for Petitioner at 3, 26. This implicit concession that Officer Reese

asked Blake an express question seems correct, for the remark clearly was

“{nterrogatory” in nature. Blake, 381 Md. at 236, 849 A.2d at 420.

25

undeniably powerful message of disrespect for Blake’s

declaration of incapacity and need. Loudly and

confrontationally, and for no ostensible reason other than to

provoke Blake, see Blake, 381 Md. at 235, 849 A.2d at 420,

Officer Reese directly challenged him to respond to an

accusation that appeared to carry the ultimate penalty and to a

cohort’s declaration that he was culpable. The psychological

impact on Blake must have been devastating.

Furthermore, Officer Reese’s charged remark was not

the only official impropriety. Detective Johns delivered a

charging document that erroneously informed Blake that he

was facing death and accurately apprised him of a cohort’s

effort to place the blame on him. He emphasized that the

charges were serious and that Blake needed to read them. If

Detective Johns had simply decided, on his own, to inform

Blake orally that he was charged with murder, that the penalty

was death, and that his cohort had accused him, he would

unquestionably have been held responsible for “initiating”

was in writing nor the fact that state law required a defendant

to be served with the document should alter that conclusion.

The impact on a vulnerable suspect would be identical in both

cases. And surely state law cannot authorize and immunize

conduct that generates intolerable risks of Fifth Amendment

violations.'* When combined with Officer Reese’s challenge,

the delivery of the charging document constituted an extremely

16. Even if there was a state interest served by promptly and

accurately informing a suspect of the simple nature of the charges he is

facing, there would be no need to include more than the bare details. It is

hard to imagine what legitimate state interest is served by including a

cohort’s accusatory statement. More important, once a suspect has asked for

counsel, all such information can be promptly conveyed to him through

counsel. See Michigan v. Mosley, 423 U.S. 96, 110 n2 (White, J.,

concurring).

26

coercive initiation of communications with overwhelming

psychological impact.'’

Even if some Edwards violations can be remedied, it

is arguable that an infection of the process as virulent as the

one injected here is incurable. At the very least, a poison this

potent requires an exceptionally strong antidote. It is

inconceivable that the measures taken in this case sufficed,

and, indeed, the lower courts properly found that they did not.

The State’s cure contention, in fact, rests entirely on a single

fact—Detective Johns’s response to Officer Reese’s comment.

Under any rational cure standard, that action is scarcely

capable of the heavy lifting the State would have it perform.

Viewed in context, it surely did not undo the damage done or

eliminate the risks created by the officers’ coercive initiation.

The situation, of course, must be viewed from the viewpoint of

the suspect. Arizona v. Roberson, 486 U.S. at 687 (“Edwards

focuses on the state of mind of the suspect and not of the

police”). From Blake’s standpoint, or the vantage point of any

reasonable person in his position, Officer Johns’s negative

response to Officer Reese could not have restored the status

quo ante. It did not nullify the very loud and very clear

message that the authorities were determined to deal with him

without counsel. A contrary contention strains credulity.

First, Detective Johns’s actions were directed toward

Officer Reese alone. He addressed no potentially remedial

17. The lower courts implicitly recognized the potent nature of the

conduct in this case by concluding that Officer Reese’s statement was not

merely the initiation of communications under Oregon v. Bradshaw, but was

also official interrogation within the meaning of Rhode Island v. Innis.

Blake, 381 Md. at 235-36, 849 A.2d at 420. The Court of Appeals

concluded that the presentation of the charging document alone was not

invocation initiation. See Blake, 381 Md. at 236, 849 A.2d at 420.

27

comment toward Blake. Interaction with another officer is

much less likely to have an impact on a bystander suspect. See

Rhode Island v. Innis, 446 U.S. 291, 302 (1980) (fact that

remarks were addressed to another officer, not to the suspect,

counted against a finding of “interrogation”). It is possible that

Johns’s reaction had some marginal ameliorative effect. On

the other hand, considering all of the circumstances, a

vulnerable suspect like Blake is just as likely to have been

confused, disoriented, or to have felt even more pressure after

witnessing Johns’s reaction to Reese.'*

In addition, Detective Johns returned to Blake’s cell

after a mere twenty-eight minute break. Time could be a

relevant factor in dissipating the psychological effects of

official initiation. A lengthy hiatus after a genuine, substantial

curative measure might weigh in favor of cure.’ The short

time period in this case—the fact that Officer Johns was back at

Blake’s cell soon after he had heard and seen powerful

indications that the authorities wished to speak to him without

counsel-should count against the possibility that a cure

occurred. The detective’s quick return in the absence of

counsel precludes a finding that the pressure brought to bear

on Blake had dissipated. Blake’s inquiry whether he could

18. The conduct of Officer Reese and Detective Johns smacks of

the “Mutt and Jeff” routine described in Miranda. See 384 U.S. at 452. This

is not meant to suggest that the officers planned the episode or that Detective

Johns’s reaction was insincere. The point is merely that to any suspect who

had been confronted by Reese and had seen the charging document (much

less a 17-year-old murder suspect, arrested in the early morning hours, alone

in a jail cell, still clad in underwear) Johns’s statement that because Blake

had asked for a lawyer the officers could not talk to him might well have

been perceived as a further reflection of the officers’ desire to interrogate

him in the absence of counsel.

19. On the other hand, pressure to submit can grow as custody is

prolonged. See Minnick v. Mississippi, 498 U.S. at 153.

28

“still talk” to the officer suggests an understandable perception

that the two visits to his cell were part of one continuous

process designed to secure his cooperation in the absence of

counsel. See Blake, 381 Md. at 239, 849 A.2d at 422.

. The undisputed facts belie any finding that Blake’s

inquiry was a product of an unprovoked, voluntary change of

heart regarding counsel. It was clearly a response to the

improper initiations that had occurred. The State’s suggestion

that Blake’s inquiry was not the product of Officer Reese’s

Statement, but was instead an independent initiation of

communications is patently contrary to the fact finding of the

suppression court, see Blake, 381 Md. at 227, 849 A.2d at 415,

and to the appellate court’s conclusion that this finding was not

clearly erroneous.” In addition, the State concedes that

Blake’s inquiry was the product of reading the content of the

erroneous charging document. Brief for Petitioner at 10, 27.

The police took not a single step to counteract the powerful

effects of falsely informing Blake that he faced “DEATH” or

of confronting him with his cohort’s accusation. Blake’s

question undoubtedly was the result of the State’s unjustified

and potent pressures to submit to questioning without a

lawyer’s help. The reaction of Detective Johns to Officer

Reese could not and did not cure the unjustifiable, coercive,

and compound Edwards violation in this case.

The case for finding that the police cured their Edwards

violation here is exceedingly weak. A conclusion that the

harm of the official improprieties was undone and that the

significant constitutional risks engendered were eliminated

could be based only on an unduly permissive legal standard for

assessing cure or on an indefensible disregard of the

20. Blake responded to the earlier actions and to the charging

document at the earliest opportunity he had to do so. See Blake, 381 Md. at

227, 849 A.2d at 415 (reporting conclusion of Circuit Court judge).

29

uncontroverted facts and fact finding. Because the balance of

interests in this particular case overwhelmingly favors the

respondent, the Court of Appeals properly concluded that no

“cure” was effected and that Blake did not initiate

communications after he clearly requested a lawyer.”'

CONCT.USION

For the reasons stated above, the judgment of the Court

of Appeals of Maryland should be affirmed.

Respectfully submitted,

Of Counsel: |

Joshua L. Dratel James J. Tomkovicz

Co-Chair, NACDL Amicus Counsel of Record

Committee University of lowa

1150 18" Street, N.W.-Suite 950 College of Law

Washington, D.C. 20036 Iowa City, lowa 52242

(202) 872-8600 (319) 335-9100

Dated: August 1, 2005

21. The State accuses the appellate court of an improper “fruits”

analysis and of inappropriately “penalizing police error.” Brief for Petitioner

at 29, 31. These criticisms are far from the mark. At issue in this case are

the statements made as a direct result of an Edwards violation, not evidence

derived from such statements. The appellate court’s conclusion that Blake’s

inquiry was the product of the official initiation is a substantive Miranda law

determination involving no “fruits” analysis whatsoever. Moreover, the

decision below showed no concern with penalizing offi -ers, but, rather, was

directly concerned with excluding statements that were presumptively

compelled and threatened to violate the Fifth Amendment if used in the

courtroom.

30