Amicus Curiae Brief — Zagorski v. Bell

@) [suare Cour. us. |

No. 05-790 FEB 12 2010

2- m1 CRK

3n The

Supreme Court of the Anited States

¢

EDMUND ZAGORSKI,

Petitioner,

V,

RICKY BELL, Warden,

Respondent.

+

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Sixth Circuit

Sf

AMICUS CURIAE BRIEF OF

PHYSICIANS FOR HUMAN RIGHTS

IN SUPPORT OF PETITIONER

oe

SAMUEL J. BUFFONE

Counsel of Record

RICHARD R.W. FIELDS

Ropes & Gray LLP

One Metro Center

700 12th Street, NW, Suite 900

Washington, D.C. 20005-3948

(202) 508-4600

Counsel for the Amicus Curiae

COCKLE LAW BRIEF PRINTING CO (800) 225 6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether a “security” justification for abusive

pretrial confinement precludes, as a matter of law, a

determination that the circumstances of confinement

impermissibly coerced the making of custodial

statements.

il

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE. ............. 1

SUMMARY OF ARGUMENT .............................. 2

PIII sesh ovecacyscuosenuscnvustasterseebencauinanesmecens: 3

I. STATEMENTS ZAGORSKI MADE AS A

RESULT OF HIS TORTUROUS CON-

FINEMENT ARE INVOLUNTARY AND

SFO E TEMPE ace nsiescrsessmssssvtanvsniicvaiesnionsers

A. The Inculpatory Statements At Issue

C.

Were The Product of Inhumane Con-

finement, Not Choice...................ceceseeees

The State Confined Zagorski in

Intolerable and Inherently Coercive

NID vaisndsuisecsesacesscesseseseseavesmencn

The Inherently Coercive Conditions

Caused Significant, Observable Phys-

ical and Psychological Harm.................

1. Isolating Zagorski for Fifty-two

Days Compromised His Ability to

Make Voluntary Decisions ...............

2. Deprivation of All Sensory Stimuli

Exacerbated Zagorski’s Mental An-

BE pea ncrocusaniaeessciess ined Gatssuesensedaniies

3. Zagorski’s “Sweatbox” Drained Him

Both Mentally and Physically .........

4. By Heavily Medicating Zagorski, the

State Diminished His Capacity to

Reason While Intensifying the Other

Harmful Effects of His Confinement...

1

11

11

13

15

16

TABLE OF CONTENTS — Continued

Page

D. By July 27, Zagorski Had Lost Control

of His Thoughts and Actions and Was

Incapable of Reasoned, Voluntary

SN chabaupadinctnerseseetsipareneusscinisenensdeinaeies 18

Il. THIS COURT SHOULD CONSIDER THE

HISTORICAL USE OF THE SAME TYPE

OF INHERENTLY COERCIVE CON-

FINEMENT CONDITIONS TO WHICH

THE STATE SUBJECTED ZAGORSKT ..... 20

II. ZAGORSK’?’S STATEMENTS SHOULD

BE EXCLUDED EVEN IF THIS COURT

ACCEPTS THE SIXTH CIRCUIT’S ANAL-

aa aapheuesacs . 25

A. The Sixth Circuit’s Test Does Not Com-

DOTE WITH COMMELLY ......cccsecccccccccccccscsecess 25

B. The Sixth Circuit’s Security Exception

Would Permit State Action That

Shocks the Conscience ..................00e0e0e- 27

IV. THIS COURT CAN SUPPRESS THE

INVOLUNTARY STATEMENTS WITH-

OUT INVOLVING ITSELF IN INTRAC-

TABLE PROBLEMS OF PRISON ADMIN-

a NMILIIN ca cabccescasdatbacsnhecerscasursnsencetecieesen 28

nS 100s 65 civnsteebavedssencessioisietosesbexeeniagses 29

iV

TABLE OF AUTHORITIES

Page

CASES

Ammons v. Mississippi, 80 Miss. 592, 32 So. 9

I iasrastiacoudsteadiscctaiadsicasiniaischssenedvyeieainapeetiocsenecsianens 10

Bell v. Wolfish, 441 U.S. 520 (1979) ........... ccc ccecceeeeee ee 28

Blackburn v. Alabama, 361 U.S. 199 (1960)................ 5

Brooks v. Florida, 389 U.S. 413 (1967) ..................264. 10

Colorado v. Connelly, 479 U.S. 157 (1986)....... 4, 25, 26

Culombe v. Connecticut, 367 U.S. 568 (1961).............. 4

Davis v. North Carolina, 384 U.S. 737 (1966)....5, 10, 19

Dickerson v. United States, 530 U.S. 428 (2000)......... 4

Moran v. Burbine, 475 U.S. 412 (1986)............ 5, 24, 28

Rhodes v. Chapman, 452 U.S. 337 (1981).................. 28

Rochin v. California, 342 U.S. 165 (1952) ................. 28

Rogers v. Richmond, 365 U.S. 534 (1961)..............0..... 4

Schneckloth v. Bustamonte, 412 U.S. 218 (1973)....4, 24

Townsend v. Sain, 372 U.5. 293 (1963), over-

ruled on other grounds, Keeney v. Tamayo-

BeRGG, GOOG U.S. 2 CUGDB) vcccnvccvccccsssvcsesecsceosccnccossconcsoest

Turner v. Safley, 482 U.S. 78 (1987)........ ree ee 28

Withrow v. Williams, 507 U.S. 680 (1993).................... 4

CONSTITUTIONAL PROVISIONS

TABLE OF AUTHORITIES — Continued

Page

REGULATIONS

Fe Ree Se te CI Pvccvcccdnsccccosccscoveccsevenvecoscocess ae

9 C.F.R. § 3.5(a) (2009) ............ See ERP POPP OP ARITA i]

OTHER AUTHORITIES

11 U.S. Wickersham Commission, National

Commission on Law Observance & Enforce-

ment, Report on Lawlessness in Law En-

nn 1 ceed siibsaueaneusnnedeaabusasstoness 22

AMERICAN SOCIETY OF HEALTH-SYSTEM PHARMA-

cists, AHFS DruG INFORMATION (2009)............ 17,18

Steven A. Drizin & Richard A. Leo, The

Problem of False Confessions in the Post

DNA World, 82 N.C. L. Rev. 891 (2004).......... ee 22

Drugs.com, http://www.drugs.com/mtm/Vvistaril.

AER. REE CP DIMA ree en RE A aA Src a 18

Eritrea: Country Summary, Human Rights

Watch http://www.hrw.org/sites/default/files/

related_material/eritrea. pdf .......................:.0:00.00 21

Atul Gawande, Hellhole, THE NEW YORKER,

es uaa A cedivadadduulirataenedorven: 21

James L. Glazer, Management of Heatstroke

and Heat Exhaustion, 71 AM. FAM. PHYSICIAN

ie ED Uiidbahascteennslesncsserancioiem sucvenbbhensbusecsvieieces 15, 16

Stuart Grassian, M.D., Psychiatric Effects of

Solitary Confinement, 22 J.L. & PoL’y 325

INE eararcel eisai a Cu Galsaeeoisusgaceedeaeneaeensbesesontanes 12,13

vi

TABLE OF AUTHORITIES — Continued

David Hamilton, The Immediate Treatment of

Heat Stroke, 31 ANESTHESIA 1 (1976)...................

Craig Haney, Mental Health Issues in Long-

Term Solitary and “Supermax,” 49 CONFINE-

MENT, CRIME & DELINQUENCY 1, Jan. 2003..........

International Committee of the Red Cross,

Report of the International Committee of the

Red Cross on the Treatment by the Coalition

Forces of Prisoners of War and Other

Protected Persons by the Geneva Conven-

tions in Iraq During Arrest, Internment and

Interrogation, February 2004, http://cryptome.

ORG ACTO RE ett iaatasesescsccccseccccc:evccceccceee:

Sam Kamin, How the War on Terror May Affect

Domestic Interrogations: The 24 Effect, 10

CHAP. Le. REV, Girt Ste f sessccsrescrccccvccsccccccccccseenes0.

Letter from T.J. Harrington, Deputy Assistant

Director, Counterterrorism Division, Federal

Bureau of Investigation to Major General

Donald J. Ryder, Department of the Army

(July 14, 2004) available at http://www.aclu.

org/torturefoia/released/FBI_4622_4624.pdf .......

Alex Lichtenstein, Good Roads and Chain

Gangs in the Progressive South: “The Negro

Convict is a Slave,” 59 J.S. LeGAL Hist. 85

(TDG) .cccsnsenesnsensdneeaeeeebaimnanshseonssespssecccccssccccoccseens

Nannette Lugo-Amador, et al., Heat Related

Illness, Emergency Medical Clinics of North

20

od

America 22 (2004) ............... La 15, 16

vi

TABLE OF AUTHORITIES — Continued

Page

Milton Meltzer, Symposium #3: Factors Used to

Increase the Susceptibility of Individual to

Forceful Indoctrination, Group For the

Advancement Of Psychiatry (1956) ............... ew 12

Organic Brain Syndrome, http://www.nlm.nih.

gov/medlineplus/ency/article/001401.htm.............. 13

Physicians Desk Reference, 62nd _ Edition

CUI ciedoicdonsednesmssaconvaneedscamuetiauiiidaalamanmecs 17,18

Physicians for Human Rights, Aiding Torture:

Health Professionals’ Ethics and Human

Rights Violations Revealed in the May 2004

CIA Inspector General’s Report, August 2009........ 14

Physicians for Human Rights, Break Them

Down: Systematic Use of Psychological Tor

ture by US Forces (2008)..........ccccccccscsscesces 12, 23, 24

Physicians for Human Rights and Human

Rights First, Leave No Marks: Enhanced

Interrogation Techniques and the Risk of

Criminality, August 2007 ........ SIAL EONS , 13

Scott Shane & Mark Mazzetti, /n Adopting

Harsh Tactics, No Look at Past Use, N-Y.

TIMES, Apr. 22, 2009............... ieunnasanemeeidaecmeats 21, 23

Andrew Steptoe, et al., Lone!iness and neuren

docrine, cardiovascular and inflammatory

stress responses in middle-aged men and

women, 29 PSYCHONEUROENDOCRINOLOGY 29

(2004) oda ; 12

TABLE OF AUTHORITIES — Continued

Page

Thomas A. Waters, /leat Illness: Tips for

Recognition and Treatment, 68 CLEvV. CLINIC

J. MED. 8, August 2001 l6

Donald Wexler, et al, Sensory Deprivation, 79

American Medical Association 6, ARCHIVES OF

NEUROLOGY AND PSYCHIATRY (1958) 14

INTEREST OF THE AMICUS CURIAE'

Physicians for Human Rights (PHR) is a non-

profit organization that mobilizes health profes-

sionals to advance health, dignity, and justice.

Harnessing the specialized skills, rigor, and passions

of doctors, nurses, public health specialists, and

scientists, PHR investigates and exposes human

rights violations.

PHR has special interest and experience in

identifying and preventing psychological torture.

Subjecting an individual to inherently coercive

techniques like those at issue in this case causes

profound short- and long-term harm. Individuals

subject to extensive solitary confinement, sensory

deprivation, and exposure to extreme temperatures

suffer from immediate physical and psychological

effects, some of which are permanent. These effects

make it difficult or impossible for individuals to act

voluntarily and violate principles of basic human

decency.

' The parties were notified at least 10 days prior to amicus

curtae’s intent to file this brief, and provided written consent to

filing that has been submitted to the Clerk of Court. Pursuant to

Supreme Court Rule 37.6, counsel for the amicus curiae affirms

that no counsel for a party authored this brief in whole or in

part, and no person other than the amicus curiae, its members,

or its counsel made a monetary contribution to this brief's

preparation or submission.

2

SUMMARY OF ARGUMENT

The United States Constitution prohibits ad-

mitting involuntary statements against criminal

defendants. Statements caused by inherently coercive

conditions of State confinement are involuntary.

When arrested, Mr. Zagorski invoked his right to

remain silent and unequivocally requested the

assistance of counsel. After fifty-two insufferable

days, isolated in a sweltering metal box without

sensory stimulation, Mr. Zagorski’s will was broken: if

he couid choose how and when he would die, he would

talk.

Mr. Zagorski’s decision to seek an audience with

police, and the statements he made at the resulting

meeting, were each the result of inherently coercive

conditions. Medical analysis of the record i!luminates

the extent of his suffering and the impact his

confinement had on his psychological and physio-

logical control. The abhorrent conditions of State

detention overbore Mr. Zagorski’s body and will,

rendering his actions the product of abusive treat-

ment — not choice. The statements should not have

been admitted. With such clear error, and life in the

balance, this Court should grant the petition for

certiorart.

3

ARGUMENT

I. STATEMENTS ZAGORSKI MADE AS A

RESULT OF HIS TORTUROUS CONFINE-

MENT ARE INVOLUNTARY AND INADMIS-

SIBLE.

Arrested in May of 1983, Mr. Zagorski invoked

his rights to remain silent and to counsel. The State

of Tennessee then placed Mr. Zagorski in a

windowless, unventilated 8' x 8' steel box. After fifty-

two days of near total isolation and _ sensory

deprivation — a period punctuated by an oppressive

heat wave — Mr. Zagorski was physiologically compro-

mised and psychologically disturbed. Thirty pounds

lighter and despondent, he offered a confession in

return for the ability to dictate the terms of his

execution. Subjected to harsh confinement conditions

similar to those used for the express purpose of

“breaking” pretrial detainees, it is little surprise that

Mr. Zagorski’s will was broken. The State’s confine-

ment compromised Mr. Zagorski’s ability to act

volitionally, resulting in the statements that impli-

cated him in criminal activity. The statements should

be suppressed.

A. The Inculpatory Statements At Issue

Were The Product of Inhumane Con-

finement, Not Choice.

Mr. Zagorski’s inculpatory statements were

products of his treatment by the State, not voluntary

choice, and are inadmissible. The Fourteenth

4

Amendment’s Due Process Clause, both independ-

ently and as it incorporates the Fifth Amendment’s

Self-Incrimination Clause, prohibits admitting invol-

untary statements into evidence. Dickerson v. United

States, 530 U.S. 428, 433 (2000). Voluntariness is

determined after an evaluation of “whether the

behavior of the State’s law enforcement officials was

such as to overbear petitioner’s will to resist and

bring about confessions not freely self-determined.”

Rogers v. Richmond, 365 U.S. 534, 544 (1961). If, in

the totality of the circumstances, a defendant’s will

was overborne by state-created circumstances, his

statements are involuntary and _ inadmissible.

Dickerson, 530 U.S. at 434 (quoting Schneckloth v.

Bustamonte, 412 U.S. 218, 226 (1973)); Withrow v.

Williams, 507 U.S. 680, 689 (1993); Colorado v.

Connelly, 479 U.S. 157, 165 (1986).

Only statements made as a result of some state

action are involuntary and inadmissible. “[C]loercive

police activity is a necessary predicate to the finding

that a confession is not ‘voluntary’ within the

meaning of the Due Process Clause.” Connelly, 479

U.S. at 167. But the motivations behind the requisite

government action are, and should be, irrelevant to

the inquiry. Statements must be analyzed from the

point of view of the defendant, assessing “the

psychological impact” of the conditions on the accused

and “evaluat[{ing] the legal significance” of his

reaction. Schneckloth, 412 U.S. at 226 (citing

Culombe v. Connecticut, 367 U.S. 568, 603 (1961)).

The circumstances of detention and interrogation,

D

and their effect on the accused, are determinative;

the subjective intent and stated or real needs of law

enforcement officials have no bearing on the question.

Moran v. Burbine, 475 U.S. 412, 423 (1986)

(“[Wjhether intentional or inadvertent, the state of

mind of the police is irrelevant to the question of the

intelligence and voluntariness of respondent’s elec-

tion to abandon his rights.”); see also Davis v. North

Carolina, 384 U.S. 737 (1966) (extended detention,

repeated interrogation, and meager diet not used for

interrogative purpose, but nonetheless effected an

involuntary statement that must be_ excluded);

Townsend v. Sain, 372 U.S. 293, 307, 309 (1963),

overruled on other grounds, Keeney v. Tamayo-Reyes,

504 U.S. 1 (1992) (drug-induced confession inadmis-

sible even when police did not provide medication for

interrogative effect; also citing Blackburn v. Alabama,

361 U.S. 199 (1960) as an example of a case where

the Court “held irrelevant the absence of evidence of

improper purpose on the part of the questioning

officers.”).

B. The State Confined Zagorski in Intol-

erable and Inherently Coercive Condi-

tions.

The State’s inhumane treatment of Mr. Zagorski

was inherently coercive. For fifty-two days, Mr.

Zagorski resided in a windowless, unventilated 8' x 8'

6

metal box. C.A. App. 509-13, 555-57.’ He could only

see what was illuminated by a dim bulb that provided

light insufficient to read and any ambient light

filtered through a small peep-hole in the door. Id. at

510. For nearly every minute of fifty-two days, Mr.

Zagorski was alone, without human contact or fresh

air, without the ability to exercise his body or control

his mind, only leaving his personal prison for a

handful of court appearances and trips to the

emergency room caused by the confinement itself. See

id. at 85; 636-47."

Mr. Zagorski’s health rapidly deteriorated. Less

than two weeks after his solitary confinement in the

metal box began, Mr. Zagorski reported extensive

mental anguish, resulting in a trip to an emergency

room where doctors noted irrational actions and a

rash brought on by nerves. Jd. at 388.° At this point,

Mr. Zagorski had already been isolated longer than

allowed by a federal court order, which specifically

* Zagorski v. Bell, No. 06-5532 (6th Cir.) Joint App., Petr.’s

Response Resp.’s Mot. Summ. J., Ex. 3 (testimony of Sheriff

Emery in Douglas v. Emery); id. at Ex. 7 (testimony of Robertson

County Lieutenant Elvis Wilson, Apr. 1, 1984 hearing in

Douglas v. Emery).

* Petr.’s Response Resp.’s Mot. Summ. J., Ex. 8 (Motion To

Be Removed From Solitary Confinement).

“ Mot. Supp. (testimony of Ted Emery); Petr.’s Response

Resp.’s Mot. Summ. J., Exs. 18-22 (J.H.J. Emergency Room

Records).

* Petr.’s Response Resp.’s Mot. Summ. J., Ex. 10 (June 18,

1983, Examination: Progress Notes).

7

enjoined Sheriff Emery from segregating any

individual for more than ten days. C.A. App. 503-08.°

A few weeks later, Mr. Zagorski was taken to the

emergency room “sweating [and] anxious,” suffering

from an “uncontrollable rage.” C.A. App. 388.’ His

knuckles were bleeding from having beaten the wall.

Id. at 618-19.° He was discharged back to his cel] but

within hours was back at the hospital, diagnosed with

the same acute anxiety. Jd. at 620-21.”

Mr. Zagorski’s condition further devolved as

Robertson County sweltered in unusually brutal heat.

Id. at 628-33." As hot or hotter than it was outdoors,

the conditions inside Zagorski’s isolation chamber

were even worse. The Sheriff candidly admitted that

the jail’s only ventilation system had been “inopera-

tive since the jail was built.” Jd. at 510-13." After a

week of external temperatures exceeding 90 degrees

Fahrenheit, Mr. Zagorski overdosed on Valium in an

* Petr.’s Response Resp.’s Mot. Summ. J., Ex. 2 (Douglas v.

Emery, Agreed Order).

" Petr.’s Response Resp.’s Mot. Summ. .1.

* Petr.’s Response Resp.’s Mot. Summ. J., Ex. 11 (July 3,

1983, J.H.J. Hospital Emergency Room Record, 12:53 a.m.).

° Petr.’s Response Resp.’s Mot. Summ. J., Ex. 12 (July 3,

1983, J.H.J. Hospital Emergency Room Record, 1:10 p.m.).

'° Petr.’s Response Resp.’s Mot. Summ. J., Ex. 16 (National

Weather Service official temperature records).

' Petr.’s Response Resp.’s Mot. Summ. J., Ex. 3 (testimony

of Sheriff Emery in Douglas v. Emery).

8

apparent suicide attempt. C.A. App. 636-37.” Imme-

diately returned to his isolated sweatbox, Mr.

Zagorski reappeared in the emergency room two days

later after another acute anxiety attack. Id. at 638-

39."° He told doctors he wanted to “sleep ‘til the police

fry [me].” Jbid. On July 20, he appeared in court

“listless and dazed” during an unsuccessful appeal to

be removed from isolation. Jd. at 634-35."

On July 22, the 100 degree heat destroyed crops

and killed livestock. Jd. at 623."° Adherence to current

federal regulations would have protected the dairy

cows and other livestock that died during that heat

wave — they guarantee adequate fresh air, ventila-

tion, and temperature regulation for organic live-

stock, 7 C.F.R. § 205.239 (2009) — but Mr. Zagorski

was still confined in a jail with an inoperable

ventilation system and in a cell that authorities had

never used before. See C.A. App. 85, 93; 510-13."

In transit, dogs and cats cannot be kept in heat

Petr.’s Response Resp.’s Mot. Summ. J., Ex. 18 (July 16,

1983, J.H.J. Hospital Emergency Room Record). °

'* Petr.’s Response Resp.’s Mot. Summ. J., Ex. 19 (July 18,

1983, J.H.J. Hospital Emergency Room Record).

“ Petr.’s Response Resp.’s Mot. Summ. J., Ex. 17 (Suspect

Bound Over In Drug Deal, NASHVILLE BANNER, July 21, 1983).

'° Petr.’s Response Resp.’s Mot. Summ. J., Ex. 13 (Heat

Reaches 100 Degrees; Crops Damaged, ROBERTSON COUNTY

TIMES, Juiy 28, 1983, at la).

'* Mot. Supp. (testimony of Ted Emery); id. (testimony of

Ronnie Perry); Petr.’s Response Resp.’s Mot. Summ. J., Ex. 3

(testimony of Sheriff Emery in Douglas v. Emery).

9

exceeding 85 degrees Fahrenheit for more than four

consecutive hours, 9 C.F.R. § 3.5(a) (2009), but Mr.

Zagorski was in his unventilated, metal-walled cell

for almost every hour of the vicious heat wave.

At the peak of the heat wave, Mr. Zagorski sent a

note asking to speak with Sheriff Emery or Deputy

Perry. C.A. App. 86-87.'’ He received no immediate

response, suffering for two days before appearing in

the hospital on July 24, complaining of insomnia and

numbness in his extremities. During that visit,

Doctor Houg noted that he was exhibiting “poor

judgment,” only to medicate him further and dispatch

him to his cell. Jd. at 640-41."

The multiple emergency room visits resulted in

a heavy diet of tranquilizers and anti-psychotic

medicine, further diminishing Mr. Zagorski’s capacity

to think and act. See id. at 614-17; 620-21; 636-37;

640-41." The medications also made his captivity

more risky, enhancing the likelihood of heat stroke

and weakening his ability to tolerate the effects of his

torturous confinement — compare part L.C.

" Mot. Supp. (testimony of Ronnie Perry).

* Petr.’s Response Resp.’s Mot. Summ. J., Ex. 20 (July 24,

1983, J.H.J. Emergency Room Record).

" Petr.’s Response Resp.’s Mot. Summ. J., Ex. 10 (June 18,

1983, Examination: Progress Notes); id. at Ex. 12 (July 3, 1983,

J.H.J. Hospital Emergency Room Record, 1:10 p.m.); id. at Ex.

18 (July 16, 1983, J.H.J. Hospital Emergency Room Record); id.

at Ex. 20, supra, n. 18.

10

After three more 97 degree days, Mr. Zagorski

again asked to speak with Deputy Perry. C.A. App.

88.” He could take no more. He began by telling

Deputy Perry that he would “confess to these

murders ... if you all would let me pick the type of

execution and the date and time of execution.” Jd. at

92-93."

The treatment described above was barbaric and

more deplorable than in other cases where this Court

suppressed inculpatory statements. See, e.g., Brooks

v. Florida, 389 U.S. 413, 414-15 (1967) (confession

made after two weeks in “windowless sweatbox”

excluded; treatment called a “shocking display of

barbarism” and statements suppressed); Davis, 384

U.S. at 745-46 (1966) (excluding inculpatory state-

ments made after 16 days of detention and interro-

gation); see also Ammons v. Mississippi, 80 Miss. 592,

595, 32 So. 9, 10 (1902) (confession procured by

confinement in cramped sweatbox involuntary and

inadmissible).

Mr. Zagorski disintegrated under State care.

When arrested, Mr. Zagorski invoked his right to

remain silent and unequivocally requested the assis-

tance of counsel. After fifty-two insufferable days,

” Mot. Supp. (testimony of Ronnie Perry).

*" Mot. Supp. (testimony of Ronnie Perry). Despite this offer,

Mr. Zagorski never confessed to murdering either victim; he

admitted only his involvement in the transaction that led to

their deaths.

11

Mr. Zagorski only wanted to choose how and when he

would die.

C. The Inherently Coercive Conditions

Caused Significant, Observable Physi-

cal and Psychological Harm.

The four inherently coercive aspects of Mr.

Zagorski’s detention — constant isolation, sensory

deprivation, heat exposure, and heavy medication —

deeply affected his physical and mental health, and

yielded an involuntary inculpatory statement.

1. Isolating Zagorski for Fifty-two

Days Compromised His Ability to

Make Voluntary Decisions.

Isolated from all friendly human contact for

almost two months, Mr. Zagorski suffered devastating

psychological and physiological damage that rendered

him incapable of making voluntary decisions as

important as waiving constitutional rights. No longer

able to make deliberate or conscious choices, he was

unable to understand his rights, let alone effectively

exercise them.

Extended isolation wreaks havoc on the mind

and body. Without any face-to-face interaction with

other human beings and the mental stimulation of

conversation, individuals begin to deteriorate. Being

isolated for periods as short as two hours disrupts

normal mental function, producing temporal and

spatial disorientation, inability to think, concentrate,

12

or reason; replacing normal processes with anxiety

and paranoia. Physicians for Human Rights, Break

Them Down: Systematic Use of Psychological Torture

by US Forces, 10 (2005), available at http://physicians

forhumanrights.org/library/documents/reports/break-

them-down-the.pdf; Craig Haney, Mental Health

Issues in Long-Term Solitary and “Supermax” 49

CONFINEMENT, CRIME & DELINQUENCY lL, Jan. 2003 at

124-56. Isolation for less than a week in domestic

prisons has caused despair similar to that experi-

enced by prisoners of war. See Dr. Stuart Grassian,

M.D., Psychiatric Effects of Solitary Confinement, 22

J.L. & POL’y 325, 343-44 (2006), citing Milton Meltzer,

Symposium #3: Factors Used to Increase the Suscep-

tibility of Individual to Forceful Indoctrination,

Group For the Advancement Of Psychiatry, 96-103

(1956). Extended isolation exponentially increases the

strain and damage to an individual’s mind. Break

Them Down, supra 11, at 59-69; see also Grassian,

supra 11, at 333-343. Experts uniformly agree: “there

is not a _ single published study of solitary or

supermax-like confinement” that failed to result in

negative psychological effects. Haney, supra 12, at

124.

There are also severe physiological effects of

extended isolation. Prolonged isolation results in

increased stress, abnormal neurendocrine function,

changes in blood pressure and inflammatory stress

responses. Andrew Steptoe, et al., Loneliness and

neurendocrine, cardiovascular and _ inflammatory

stress responses in middle-aged men and women, 29

13

PSYCHONEUROENDOCRINOLOGY 29, 593-611 (2004) as

cited in Physicians for Human Rights and Human

Rights First, Leave No Marks: Enhanced Interro-

gation Techniques and the Risk of Criminality,

August 2007, at 32, available at http://physiciansfor

humanrights.org/library/documents/reports/leave-no-

marks.pdf). Indeed, the effect of extended isolation

“often resembles an organic brain syndrome” — a

physical disease identified by agitation, confusion,

and acute, lasting brain function decline. C.A. App.

388” citing Grassian, supra 12, at 333-343; see also

Organic Brain Syndrome, http://www.nlm.nih.gov/

medlineplus/ency/article/001401.htm.

2. Deprivation of All Sensory Stimuli

Exacerbated Zagorski’s Mental An-

guish.

Depriving Mr. Zagorski of sensory stimuli inten-

sified the harmful effects of his isolated detention.

By its nature, solitary confinement deprives individ-

uals of ordinary sensory stimuli like human inter-

action and visual variety. But Mr. Zagorski was

particularly disadvantaged. Without a breath of fresh

air, sunlight, or normal physical exercise, Mr.

Zagorski was confined in a foreign world.

Sensory deprivation has significant cognitive

effects. In one well-known experiment, volunteer

“ Petr.’s Response Resp.’s Mot. Summ. J

14

subjects were placed in a tank respirator that

eliminated or masked most sensory stimuli. Subjects

spent anywhere between ninety-eight minutes and

thirty-six hours in this deprivation tank. Donald

Wexler, et al., Sensory Deprivation, 79 American

Medical Association 6, ARCHIVES OF NEUROLOGY AND

PSYCHIATRY, 225 (1958). The volunteers demonstrated

many adverse psychological effects of this depriva-

tion, including an inability to concentrate effectively,

daydreaming and fantasy, illusions, delusions, and

hallucinations. Sensory deprivation caused some

subjects to focus inwardly and progressively lose

touch with reality, and caused all subjects to make

judgmental errors. /bid. Lack of sensory stimuli

induced unbearable stress and pain, causing more

than half of the volunteers to prematurely terminate

their participation in the study. /bid.

Humans subjected to confinement like Mr.

Zagorski’s develop psychomotor and _ cognitive

responses that would be clinically diagnosed as

depression and in some cases posttraumatic stress

disorder. Symptoms include apathy, helplessness, and

hopelessness. Physicians for Human Rights, Aiding

Torture: Health Professionals’ Ethics and Human

Rights Violations Revealed in the May 2004 CIA

Inspector General’s Report, August 2009, at 4,

available at http://physiciansforhumanrights.org/library/

documents/reports/aiding-torture.pdf. The feelings

attendant to sensory deprivation like that to which

Mr. Zagorski was exposed may overcome a person’s

power to exercise his will.

15

3. Zagorski’s “Sweatbox” Drained Him

Both Mentally and Physically.

Exposure to extreme temperatures for even short

periods can cause long-lasting physiological and psy

chological harm. Extreme heat can cause dehydra-

tion, anxiety, confusion, visual disturbances, lethargy,

and heat stroke, a life-threatening heat related

condition involving dysfunction of the central nervous

system (brain and spinal cord) that can progress to

coma or death. James L. Glazer, Management of

Heatstroke and Heat Exhaustion, 71 Am. Fam.

PHYSICIAN 11, 2133-40 (2005), available at http://

www.aafp.org/afp/2005/060 L/p2133. html.

Mr. Zagorski doubtlessly suffered deleterious

effects from the heat, and may have suffered from

heat stroke. A few hours in temperatures exceeding

humans’ thermal maximum — 107 degrees Fahrenheit

~ can result in heat stroke. Nannette Lugo-Amador,

et al., Heat Related Illness, Emergency Medical

Clinics of North America 22, 315-327 (2004). “It does

not take long either to boil an egg or to cook neurons.”

David Hamilton, The Immediate Treatment of Heat

Stroke, 31 ANESTHESIA 1, 270-272 (1976). Mr. Zagorski

was kept in a cell that was as hot or hotter than it

was outdoors, where temperatures peaked at 100

degrees on July 22nd. C.A. App. 510-13.” Two of the

State-prescribed medications, Haldol and Vistaril,

” Petr.’s Response Resp.’s Mot. Summ. J., Ex. 3 (testimony

of Sheriff Emery in Douglas v. Emery)

16

administered on July 3rd and 18th respectively,

predisposed him to heat stroke. Id. at 619, 639;

Lugo-Amador, supra 15, at 320; Glazer, supra 15, at

2135-37.

Heat stroke or no, Mr. Zagorski suffered from the

sweltering temperatures. The central nervous system

responses associated with heat illness — including

confusion, delirium, ataxia, and potentially seizures

and coma ~— impair the very act of cognition,

imperiling an individual’s control of his actions,

thoughts, and movements. Thomas A. Waters, Heat

Illness: Tips for Recognition and Treatment, 68 CLEV.

CLINIC J. MED. 8, August 2001 at 685-687, available

at http://www.ccjm.org/content/68/8/685. full. pdf+html.

4. By Heavily Medicating Zagorski,

the State Diminished His Capacity

to Reason While Intensifying the

Other Harmful Effects of His

Confinement.

Powerfully medicated, Mr. Zagorski’s capacity

for reasoning and comprehension was significantly

reduced. A regimen of potent anti-psychotic drugs and

tranquilizers diminish an individual’s capacity for

awareness or understanding of a situation and ability

to make deliberate and conscious choices regarding

* Petr.’s Response Resp.’s Mot. Summ. J., Ex. 11 (July 3;

1983, J.H.J. Hospital Emergency Room Record); id. at Ex. 19

(July 18, 1983, J.H.J. Hospital Emergency Room Record).

POO Re ere a Oe a lee de ee oe ee ee

17

exercise of legal rights. Though meant to alleviate the

effects of physical and mental deprivations, both the

need for and the effects of such medication provide

evidence that Mr. Zagorski was not mentally capable

to make reasoned statements or decisions regarding

constitutional rights.

Mr. Zagorski was prescribed Haldol — an anti-

psychotic drug — on two separate occasions. C.A. App.

614-19.” Haldol is known to cause drowsiness and

confusion, especially during initial use, and is asso-

ciated with restlessness, anxiety, agitation, depres-

sion, and catatonic-like behavior. AMERICAN SOCIETY

OF HEALTH-SYSTEM PHARMACISTS, AHFS DruG

INFORMATION, 2508-13 (2009).

Apparently insufficiently medicated, Mr. Zagorski

was administered three different tranquilizers

within sixteen days — Valium, Librium, and Serax —

each drug known to cause drowsiness, ataxia,

fatigue, dizziness, weakness and confusion. /d.

at 2586-95 (Benzodiazepines);” C.A. App. 618-21;

~ Petr.’s Response Resp.’s Mot. Summ. J., Ex. 10 (June 18,

1983, Examination: Progress Notes); id. at Ex. 11 (July 3, 1983,

J.H.J. Hospital Emergency Room Record, 12:53 a.m.).

* Valium, Librium, and Serax are brand names for the

generic drugs Diazepam, Chlordiazepoxide, and Oxazepam,

respectively, which are classified as Benzodiazepines and share

the same properties. See Physicians Desk Reference, 62nd

Edition 2765, 3299 (2008); see also AMERICAN SOCIETY OF

HEALTH-SYSTEM PHARMACISTS, AHFS DruG INFORMATION, 2612

(2009).

18

636-37.’ Roughly ten percent of patients taking these

drugs experience paradoxical central nervous system

stimulation resulting in talkativeness, excitement,

mania, insomnia and restlessness. Physicians Desk

Reference, 62nd Edition 2765-66, 3299-300 (2008);

see also AHFS DRuG INFORMATION, supra 16, at 2590.

Mr. Zagorski was also prescribed Vistaril, an anti-

anxiety medication with side effects including

drowsiness, ataxia, dizziness, weakness, headaches

and agitation. C.A. App. 638-39;" see AHFS DruG

INFORMATION, supra 17, at 2629-31 (Hydroxyzine).”

D. By July 27, Zagorski Had Lost Control

of His Thoughts and Actions and Was

Incapable of Reasoned, Voluntary

Action.

Physically weakened and psychologically crip-

pled, on July 27 Mr. Zagorski was a broken man no

longer in control.

” Petr.’s Response Resp.’s Mot. Summ. J., Ex. 11 (July 3,

1983, J.H.J. Hospital Emergency Room Record, 12:52 a.m.); id.

at Ex. 12 (July 3, 1983, J.H.J. Hospital Emergency Room

Record, 1:10 p.m.); id. at Ex. 18 (July 16, 1983, J.H.J. Hospital

Emergency Room Record).

* Petr.’s Response Resp.’s Mot. Summ. J., Ex. 19 (July 18,

1983, J.H.J. Hospital Emergency Room Record).

* Vistaril is the brand name for the generic drug

Hydroxyzine. See http://www.drugs.com/mtm/vistaril. html (last

visited February 2, 2010).

A > ee «©68UCUC TOU SLU CUCU’ ow wv - @ -.

19

Mr. Zagorski’s physical state was severely

compromised by this deplorable detention. He was

outwardly changed — having lost 30 pounds and

injuring his knuckles by badly beating them against

the walls of his cell, C_.A. App. 635” — but also likely

suffering other physical manifestations of his

torturous detention, including impaired circulatory,

nervous, and neuroendocrine function. See Davis, 384

U.S. at 746 (physical effects of confinement have

substantial effect on voluntariness). He also exhibited

perceptible psychological harm, with frequent attacks

of anxiety and uncontrollable rage, self-abusive and

suicidal behavior, confusion, and disorientation. He

was treated with powerful psychiatric drugs, several

of which can impair the ability to think clearly, and

some of which lower the level of consciousness and

self-control.

The signs and symptoms described in Mr.

Zagorski’s case are highly consistent with extreme

physical and psychological duress, with predictable

global impacts on his entire nervous system. The

physiological stresses on his nervous system impaired

Mr. Zagorski’s brain function and his ability to

exercise higher cognitive function like voluntary

decision making. This effect is demonstrated in a loss

of his self-control, a loss of his autonomy, and a loss of

the ability to control his thoughts or effect his will.

” Petr.’s Response Resp.’s Mot. Summ. J., Ex. 17 (Suspect

Bound Over in Drug Deal, NASHVILLE BANNER, July 21, 1983).

20

The record demonstrates that Mr. Zagorski’s

physical and mental condition withered during his

detention, causing clear, observable signs of his

inability to reason and volitionally act. By the time of

the suspect statements, Mr. Zagorski was incapable of

reasoned, voluntary action.

The impact of his confinement is and was

apparent: the man who made inculpatory statements

was not the Mr. Zagorski who appeared in the

Robertson County Jail in May. His will overborne by

intolerable State detention, Mr. Zagorski’s inculpa-

tory statements were not the product of his volition

and are inadmissible.

Ul. THIS COURT SHOULD CONSIDER THE

HISTORICAL USE OF THE SAME TYPE OF

INHERENTLY COERCIVE CONFINEMENT

CONDITIONS TO WHICH THE STATE

SUBJECTED ZAGORSKI

It is not surprising that the State’s treatment

broke Mr. Zagorski. The techniques used against him

are traditional methods of torture often used

explicitly for the purpose of coercing confessions. In

evaluating the totality of the circumstances sur-

rounding Mr. Zagorski’s confession, this Court should

consider the historical lineage of the types of harsh

confinement to which he was subjected — harsh

confinement often used to extract unwilling,

involuntary confessions from those not yet convicted

of any crime.

21

Oppressive foreign regimes treat criminal

suspects and political dissidents much like the State

treated Mr. Zagorski. Chinese Communists used

isolation, sensory deprivation, and extreme tempera-

tures to extract false confessions from American

service members during the 1950s. Scott Shane &

Mark Mazzetti, Jn Adopting Harsh Tactics, No Look

at Past Use, N.Y. Times, Apr. 22, 2009, at Al,

available at http://www.nytimes.com/2009/04/22/us/

politics/22detain.html. Associated Press reporter

Terry Anderson was held as a Hezbollah hostage in “a

six-by-six-foot cell, with no windows, and light from

only a flickering fluorescent lamp in an outside

corridor.” Atul Gawande, Hellhole, THE NEW YORKER,

March 30, 2009, available at http://www.newyorker.

com/reporting/2009/03/30/090330fa_fact_gawande. Much

like Mr. Zagorski mutilated his knuckles against his

cell, Mr. Anderson snapped, walking over to a wall

and smashing his forehead into a bloody mess. Jbid.

The techniques used against Mr. Zagorski are

shockingly similar to those used by the Eritrean

government against political prisoners in December

2008, when “27 political prisoners, including three

journalists arrested in 2001 ... were held in searing

heat in subterranean isolation cells.” Eritrea: Coun-

try Summary, Human Rights Watch, http://www.hrw.

org/sites/default/files/related_material/eritrea.pdf (last

visited February 2, 2010). Four of the prisoners were

“held in underground. cells for five years without

access to daylight.” bid.

a-

22

Isolation and heat exposure are not merely the

novel tactics of far-off dictators and _ terrorists.

Domestic officials have confined criminal suspects in

small, extremely hot boxes since the Civil War.

Steven A. Drizin & Richard A. Leo, The Problem of

False Confessions in the Post DNA World, 82 N.C. L.

REv. 891, 908-09 (2004). Their use flourished for the

next several decades, particularly against minorities

and otherwise unpopular detainees. Sam Kamin,

How the War on Terror May Affect Domestic Interro-

gations: The 24 Effect, 10 CHAP. L. REv. 693, 697

(2007). The 1931 Wickersham Police Report noted

officers “worked” prisoners using third degree tactics,

including placement in a sweatbox described as “a

small cell completely dark and arranged to be heated

till the prisoner, unable to endure the temperature,

will promise to answer as desired.” 11 U-S.

Wickersham Commission, National Commission on

Law Observance & Enforcement, Report on Lawless-

ness in Law Enforcement, 47 (1931). Sweatboxes

were also a favored corporal punishment for minority

members of chain gangs. Alex Lichtenstein, Good

Roads and Chain Gangs in the Progressive South:

“The Negro Convict is a Slave,” 59 J.S. LEGAL HIST.

85, 93 (1993).

Isolation, exposure to extreme temperatures, and

manipulation of sensory stimuli were employed more

recently by interrogators at Abu Ghraib, Afghanistan,

and Guantanamo Bay. These tactics were initially

designed to mimic the abusive, coercive methods used

by Chinese interrogators to extract false confessions

23

from American service members. Shane & Mazzetti,

supra 21, at Al.

Detainees at Guantanamo Bay were subjected to

a system designed to “break people” through a com-

bination of coercive tactics including solitary

confinement and exposure to extreme temperatures.

Break Them Down, supra 12, at 41. In one example, a

detainee isolated for over three months “was evi

dencing behavior consistent with extreme psycholog-

ical trauma (talking to non-existent people, reporting

hearing voices, crouching in a corner of the cell

covered with a sheet for hours on end).” Jd. at 10

quoting Letter from T.J. Harrington, Deputy Assis-

tant Director, Counterterrorism Division, Federal

Bureau of Investigation to Major General Donald J.

Ryder, Department of the Army (July 14, 2004)

avatlable at http://www.aclu.org/torturefoia/released/

FBI_ 4622 4624.pdf. Interrogators in Afghanistan used

severe sensory deprivation against detainees, forcing

detainees to wear devices that blocked visual and

aural stimulation. /d. at 40-41.

An International Committee of the Red Cross

report found that in 2003, detainees at Baghdad

International Airport were “held for nearly 23 hours a

day in strict solitary confinement in small concrete

cells devoid of daylight.” International Committee of

the Red Cross, Report of the International Committee

of the Red Cross on the Treatment by the Coalition

Forces of Prisoners of War and Other Protected

Persons by the Geneva Conventions in Iraq During

Arrest, Internment and Interrogation, February

24

2004, 743, http://cryptome.org/icrc-report.htm. While

the similarities to Mr. Zagorski’s confinement are

notable — compare Part I.B — the differences are more

powerful: Iraqi detainees were not generally subject

to abnormally extreme temperatures and were

allowed an hour each day outside of their confine-

ment. Excepting court appearances and the medical

visits necessitated by his deplorable detention, Mr.

Zagorski was isolated for fifty-two days before

making the inculpatory statements at issue here.

Notably, isolation of terrorist suspects for longer than

thirty days needed approval from military command.

Break Them Down, supra 12, at 94.

Interrogator motivation is irrelevant to the Due

Process voluntariness analysis. Moran, 475 U.S. at

423. But the fact that the techniques used against

Mr. Zagorski have so often been used for the purpose

of extracting information from unwilling individuals

is relevant when evaluating the likely “psychological

impact” of the conditions on the accused. See

Schneckloth, 412 U.S. at 226. Facing techniques

traditionally used to torture and coerce, it is unsur-

prising that Mr. Zagorski was unable to effect his

desire to remain silent. Isolation, sensory deprivation,

and exposure to extreme heat substantially disrupt

healthy minds, let alone those coursing with heavy

medication. The statements were the product of

confinement, not choice, and should be suppressed.

OF

Lo

fil. ZAGORSKY’S STATEMENTS SHOULD BE

EXCLUDED EVEN IF THIS COURT AC-

CEPTS THE SIXTH CIRCUIT’S ANALYSIS

Even if this Court adopts the Sixth Circuit’s

novel Due Process analysis, it should not adopt the

misapplication of that new rule. The Sixth Circuit

created a “security exception” to the Fourteenth

Amendment’s Due Process Clause: because the State

asserted a reason for the nature of Mr. Zagorski’s

detention, the Sixth Circuit believed that the causal

chain between state activity and the statements was

broken and the statements were admissible under

Connelly. Pet. App. 9a. This test should be discarded

for at least two reasons: (1) the Sixth Circuit’s

rationale finds no support in Connelly; and (2) the

Sixth Circuit’s test impermissibly allows the State to

use evidence obtained in a matter that shocks the

conscience so long as the means were related to a

legitimate end.

A. The Sixth Circuit’s Test Does Not

Comport With Connelly.

The Sixth Circuit decision finds no support in

Connelly. The statements in Connelly were excluded

because they were not caused by state action, and the

interrogators were unaware that they were not the

product of the defendant’s free will. In Connelly, the

police took statements from a man who told them he

wanted to confess because of a guilty conscience.

Connelly, 479 U.S. at 160-61. They had no reason to

suspect he was mentally disturbed; the revelations

26

about the “command hallucinations” occurred after

the inculpatory statements were made. /d. at 161.

Before they took any statements, the police officers in

Connelly asked the defendant whether he had. been

drinking or had taken drugs, and read him his

Miranda rights. Jd. at 180. Reminded that he was

under no obligation to speak to the police, the

defendant said that he wanted to talk “because his

conscience had been bothering him.” /d. at 160

In contrast, State officials knew or should have

known that Mr. Zagorski was _ physically and

psychologically distressed. They admitted that Mr.

Zagorski had been placed in a container that would

make them “go nuts.” C.A. App. 627." They knew how

hot it was in the cell block, with its inoperative

ventilation system. They knew that a federal court

order prohibited extended solitary confinement, and

that Mr. Zagorski had been isolated for far too long

and in violation of that order. They knew Mr.

Zagorski was highly medicated. And if they had

forgotten these facts, they would be reminded of Mr.

Zagorski’s suffering by the way he started the July

27th conversation: “I'd confess ... if you all would let

me pick the type of execution and the date and time

of execution.” Id. at 92-93.”

3

Petr.’s Response Resp.’s Mot. Summ. J., Ex. 15 (statement

of Ronnie Perry to Larry Wilks, Esq. and James Walton, Esq.).

“ Mot. Supp. (testimony of Ronnie Perry)

t

~)

Furthermore, there was no security rationale for

granting Mr. Zagorski’s despondent plea. The Sixth

Circuit’s novel approach only permits the use of

detention techniques designed to improve jail

security. Granting the suicidal, disturbed request of

Mr. Zagorski had no relation to security, and the

Sixth Circuit’s misplaced exception to the Due Proc

ess Clause cannot authorize admitting the resulting

statements.

At the time of his inculpatory statements, the

questioning officers knew that Mr. Zagorski was

under severe psychological and physiological stress,

and they knew why that was the case. Admission of

statements that were both caused by state action and

taken by individuals who knew they were involuntary

offends Due Process. The statements should be

suppressed

B. The Sixth Circuit’s Security Exception

Would Permit State Action That

Shocks the Conscience.

The Sixth Circuit’s novel analysis sets no outer

bounds for state action. It cannot be true that the

fruits of any act taken for legitimate penological

objectives are admissible. Suppose that jail officials

were worried that Mr. Zagorski was so disturbed and

disruptive that prison safety required he be shackled

at the wrists and ankles, his head immobilized, and

his mouth gagged to prevent his further incitement of

other detainees. They remove the gag each day to let

28

him eat, but otherwise it remains. After several days

of such treatment, when the gag is removed at lunch,

he offers to confess in exchange for better conditions,

or even death. Statements made as a result of that

treatment would most certainly be inadmissible, even

though they were produced by good-faith actions

taken toward an admittedly legitimate state interest.

See generally Moran, 475 U.S. at 432; Rochin v.

California, 342 U.S. 165 (1952). Mr. Zagorski was not

bound and gagged, but his treatment was arguably

more outrageous. When treatment of a detainee

shocks the conscience, the resulting statements

should be inadmissible, regardless of the legitimacy of

the underlying state interest.

IV. THIS COURT CAN SUPPRESS THE IN-

VOLUNTARY STATEMENTS WITHOUT

INVOLVING ITSELF IN INTRACTABLE

PROBLEMS OF PRISON ADMINISTRA-

TION.

Excluding Mr. Zagorski’s confession will not

hamstring law enforcement officials who have

legitimate penological reasons for restricting an

inmate’s liberty. Challenges to pretrial detainee and

prisoner confinement that claim impingement of

liberty interests or other Constitutional rights are

evaluated under different balancing standards. See

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

Chapman, 452 U.S. 337 (1981). Convicts face depriva-

tion of Constitutional rights when the balance of

penological needs tilts against them. See Turner v.

Safley, 482 U.S. 78 (1987).

29

But those cases are inapposite. The issue before

this Court is whether the Constitution prohibits law

enforcement officials from using the involuntary,

coerced fruits of harsh confinement in criminal

proceedings against those prisoners. Mr. Zagorski

does not seek a writ of habeas corpus to alter the

terms of his confinement; he seeks exclusion of an

involuntary statement caused by state action.

The Petition is from a man about to be put to

death for statements he involuntarily made. The

intractable problems of prison administration are sui

generts. This Court will not hamper prison officials by

preventing an execution premised on a Due Process

violation

CONCLUSION

For the reasons set forth above, PHR respectfully

requests that this Court grant the petition for a writ

of certiorari

Respectfully submitted,

SAMUEL J. BUFFONE

Counsel of Record

RICHARD R.W. FIELDS

ROPES & GRAY LLP

One Metro Center

700 12th Street, NW, Suite 900

Washington, D.C. 20005-3948

(202) 508-4600

Counsel for the Amicus Curiae