Respondents Brief — Edwards v. Arizona

Supreme Court, U.S,

FILED

OCT 24 1960

No. 79-5269

caeremeencermns vereermennamnamemaantta 0 ine, JR., CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

ROBERT EDWARDS, Petitioner,

THE STATE OF ARIZONA, Respondent.

On Writ Of Certiorari To

The Arizona Supreme Court

PETITIONER’S REPLY BRIEF

MICHAEL J. MEEHAN

Post Office Box 2268

Tucson, Arizona 85702

(602) 622-3531

Court Appointed Attorney

for Petitioner

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D. C.

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ..........cccceccccccccecs ii

SUMMARY OF ARGUMENT ..........cceeecceecccce |

UE SN pe cgi ews or a% bd KK sa KR Ke 3

I. Errors Of Fact In The State’s Brief ........ 3

II.

ITI.

Errors By The State In Discussing Miranda,

Mosley, and Case Law From The Circuit

CEE OT INE on occ cccccckcncccusces

The State’s Misapprehension Of The

Distinction Between The Right To Counsel

And The Privilege Against Self-

Incrimination, And Its Incorrect Conclusion

Concerning Waiver Of Sixth Amendment

PRINS TO COUN icici ccs cccccccccs

li

TABLE OF AUTHORITIES

CASES: PAGE

Brewer v. Williams,

Lt eS a Para Par we re re ye 19, 23

Carvey v. LaFever,

a 2 ol: le ee, . Bene weeny eee 21

Cobbs v. Robinson,

528 F.2d 1331 (2d Cir. 1975), cert. denied, 424

SE CS 6. 6 sass v0 4a ne cae cudwaaees 14

Dewey v. City of Des Moines,

Eve Wh SPE 20 bans 000k dak aneeente 20

Erickson v. Dupnik,

Civ. No. 78-008-TUC-MAR (D. Ariz. 1980) .. 9

Fare v. Michael C.,

BAS UB. FEF GTO gw ve cc ccccccncoccceces 13

Gilmore v. City of Montgomery,

GET WE OEP bv AN ccc ccwtcadesecedees 9

Johnson v. Zerbst,

See I 4 ek i ccaccncacneua 2,21, 22

Massiah v. United States,

Pee Ce ew sv buh d sob daekk eu eneees 23

Michigan v. Mosley,

ee as TO Ch ais ood wsek wha ekeas passim

Miranda v. Arizona,

Fee ss MO EROOD 5k voi kbd iciwdndceeoaas passim

Rhode Island v. Innis,

U.S. PE ee Eee ee 5, 16

Schneckloth v. Bustamonte,

EE Ws TI a os 60k 0 44660 cdds oka en 22

ill

TABLE OF AUTHORITIES

CASES: PAGE

State ex rel. Berger v. Superior Court,

105 Ariz. 553, 468 P.2d 580(1970) .......... 20

Thompson v. Wainwright,

ee Wome Fee Cree Ce, IGTST., oc cee cc cceese 15

U.S. v. Hauck,

586 F.2d 1296 (8th Cir. 1978), cert. denied, 441

sy a's van end Cee maces 14

U.S. v. Priest,

409 F.2d 491 (Sth Cir. 1969)................ 15

United States v. Blair,

470 F.2d 331 (Sth Cir. 1972), cert. denied sub

nom Crews v. United States, 411 U.S. 908

ER ONS se eee eee oka das 15

United States v. Satterfield,

ye oe ps 21

CONSTITUTIONAL AND STATUTORY PROVISIONS:

United States Constitution, Fourth Amendment... 22

United States Constitution, Fifth Amendment .... passim

United States Constitution, Sixth Amendment .... passim

United States Constitution, Fourteenth Amend-

Pao Vie his Ol Cb wih oe Wiaae cise 20

IN THE

Supreme Court of the United States

OCTOBER TERM, 1980

No. 79-5269

ROBERT EDWARDS, Petitioner,

Vv.

THE STATE OF ARIZONA, Respondent.

On Writ Of Certiorari To

The Arizona Supreme Court

PETITIONER’S REPLY BRIEF

SUMMARY OF ARGUMENT

The State’s references to various record matters are

substantially in error. The State contends that

Edwards never told any detective that he wanted an

attorney before he would make any statement. That is

wrong. Other errors of fact exist. The State tries to draw

inferences about Edwards’ intentions which are illogical

and unsupportable. For example, the State argues that by

giving a verbal statement to the interrogating police, but

refusing to give a written one, Edwards was engaged in a

plan to manipulate the prosecutorial system. Supposedly,

he was making a statement with built-in deniability. This

makes no sense. Either he would have made a voluntary

statement or not.

There are incomplete and misleading quotations from,

and discussions about, Miranda vy. Arizona, 384

2

U.S. 436 (1966), Michigan v. Mosley, 423 U.S. 96 (1975).

Cases from the Courts of Appeal, which discuss what was

intended in Miranda, are incorrectly quoted. The product

of these erroneous discussions is the State’s argument that

there should be no differing treatment between the two

situations, of an accused asking for counsel, or simply

staying silent. Such a holding would unnecessarily confuse

the meaning of Miranda, and would ride roughshod over

this Court’s previous recognition that an accused who asks

for counsel really cannot deal with the State, and ought

not to be reinterrogated until he gets the assistance that he

needs and is entitled to.

The State’s arguments also fail to appreciate the import

of the fact that the interrogation at issue was conducted

after formal prosecution had commenced, and that the

Sixth Amendment right to trial counsel’s assistance

existed. Therefore, the State mistakenly argues that police

investigative considerations ought to be weighed against

the Sixth Amendment right to counsel, when in fact in-

vestigation was not at issue. It also mistakenly argues that

the police ought to be able to urge an accused to change his

mind and not avail himself of his right to assistance of

counsel, when of course the accused has already decided

that he wants a lawyer to act for him and be with him in all

critical stages after prosecution has commenced, including

interrogation by police. The State’s Brief also fails to

recognize the high standard of waiver, required by

Johnson v. Zerbst, 304 U.S. 458 (1938), if waiver is at

issue here; and it presents no facts nor argument that

could support a finding that Johnson’s waiver standards

were met.

3

ARGUMENT

I

Errors of Fact in The State’s Brief.

A number of factual errors permeate the State’s Brief,

allowing the State to bolster its legal arguments both sub-

tly and impermissibly. The more glaring of these errors are

the contention that Edwards never Clearly said that he

wanted an attorney before he would speak to the police,

and the claim that no interrogation occurred on the morn-

ing before Edwards’ court appearance.

Strangely, the State never mentioned the fact that the

police timed their interrogation to beat that court appear-

ance at which Edwards would get counsel, nor did it at-

tempt to justify that, except to say that police investigative

functions would be jeopardized by prohibiting interroga-

tions that are intended only to elicit trial evidence. That

contention is dealt with in Argument III below.

Another factual error that pervades the State’s Brief is

the rather ludicrous argument that Edwards responded to

the police interrogation on the morning of his arraignment

with the purpose of ‘manipulating the judicial system’’,

by making a statement that he could later deny having

given. The State argues that such a manipulation

demonstrates a knowing and intelligent waiver of the right

to counsel, a contention with which we deal in Argument

III below. Such a claim is illogical and can be squared

neither with the concept of a voluntary confession nor the

intentional relinquishment of the right to counsel. If the

statement was voluntary, Edwards had no need to disavow

it in the future. If it was not, it is inadmissible.

4

Some of the factual errors made by the State are:

On pages 5-6 of the Respondent’s Brief', the State says, |

‘*At no time did Edwards say to Sgt. Bunting or any of the |

other officers that he would not talk to them until he

spoke to an attorney.’’ And see R.B. 28. This is clearly

belied by the record.? The trial court found ‘‘that

Mr. Edwards intended to have an attorney and intended

not to make any statement until he was represented by

counsel.’’ J.A. 1. In Bunting’s own words:

‘*T remember the county attorney’s office. When

no deal was made you [Edwards] left stating, ‘I’m

going to wait until I get an attorney to make a deal for

me. I’m not going to make a deal now. /’m not going

to make a statement now. I’m going to wait until I get

my attorney.’ That’s the way it was left. That’s all the

discussion we had about it.’’ J.A. 151.

(Emphasis added.)

The same understanding by Bunting that Edwards would

wait until he got an attorney, both for a deal and to make

~~a statement, permeates Bunting’s testimony, J.A. 38-41.

At page 27 of the State’s Brief, it is asserted that on the

day Edwards was arrested he was ‘‘informed of his rights

three times: At the time of his arrest . . .’’ This is simply

' Hereinafter cited as R.B., with page number.

? The Arizona Supreme Court unequivocally found that Petitioner

had asserted his right to counsel the evening of the interrogation by

Sgt. Bunting. See J.A. 16:

‘*We hold, therefore, looking at Edwards’ statement in the con-

text made, that although it was equivocal, its meaning

was sufficiently clear and, therefore, it must be interpreted as a

request for counsel, and as a request to remain silent until

counsel was present’’.

5

false. (See J.A. 13 — Arizona Supreme Court Opinion:

“‘Edwards was arrested at his home at 4:00 o’clock p.m.

He was not read the Miranda warnings at that time. . Ape.

J.A. 31 — answers by Detective Bunting: ‘‘Q. At the time

he was arrested did you go over his Miranda rights with

Mr. Edwards? A. Not at the moment of arrest. Later at

the police station’; J.A. 45 — Answers by Detective

Bunting: ‘‘Twice he was advised.’’ See also, J.A. 18.)

Having made this error in its statement of facts, the State

proceeds to build its argument upon the erroneous conten-

tion that Edwards waived his rights on the 20th, because

he had been given his rights on several separate occasions.

The clearest factual error is the contention, R.B. 22,

that no interrogation of Edwards occurred on the morning

before he was to be arraigned. Rhode Island v. Innis,

U.S. ____ (1980), is the supporting citation, and no doubt

the inspiration, for the argument. Such a contention is

untenable. The record in this case is replete with evidence

that Detectives Marmion and Milne fully intended to elicit

incriminating responses from the Petitioner.’

> See, for example,

“I had one thing on my mind, to go out there and question him

about his murder, and see what he was willing to say.’’ J.A. 52

(by Marmion).

“Detective Marmion was going out to interview Mr. Barefield

and I accompanied him’’, ‘‘Detective Marmion interviewed

Mr. Edwards.”’ J.A. 141 (by Milne).

“*Q. Is there any reason why two rather than one detective went

to the Pima County Jail to talk to Mr. Edwards?

A. Well, I wasn’t going to the jail for the purpose of talking to

Mr. Edwards. I was going to the jail for the purpose of just

being a witness to any statements that he made.

6

At page 6 of its Brief, the State says that Sergeant

Bunting assigned Detective Milne to go along with Detec-

tive Marmion to the interrogation of Edwards ‘‘as part of

Detective Milne’s educational process.’’ Although Milne

did say that accompanying Marmion was ‘‘an educational

process for myself’’, J.A. 140-41, there was no testimony

. that he went to the jail for an education. The State’s at-

tempt to persuade this Court that Milne’s presence was

fortuitous, in an effort to show that the trip to the jail was

not for interrogation, is frivolous. Marmion deliberately

set out to obtain a statement from Edwards. Milne went

along as a witness. (J.A. 68 — by Milne, ‘‘I was going to

the jail for the purpose of just being a witness to any

statements that [Edwards] made.’’) The Tucson police

detectives were not on an educational sojourn to the jail;

nor were they investigating the crime. Rather, they were

Q. The express purpose then, at least as far as you knew, of

going to the jail that day was to obtain a statement.

A. Was to interview Mr. Barefield with the obvious — obtain-

ing the statement would be obvious.’’ J.A. 68 (by Milne).

{Emphasis supplied.]

**Q. After you played that portion of Mr. Soto’s statement, did

you ask Mr. Edwards some questions about the La Conga

Bar incident?

A. Wedid.’’ S.A. 25 (by Marmion)

These cites from the record clearly establish that it was the full inten-

tion of the police to interrogate Mr. Edwards when they went to the

jail that morning.

7

deliberately attempting to obtain a confession for use at

Edwards’ trial, and to do so before the Defendant even

had an opportunity to have counsel appointed for him. To

characterize Milne’s presence as part of an ‘‘educational

process’’ paints a false picture of what occurred on the

morning of January 20.

The State implies disbelief of Petitioner’s testimony that

when Marmion wanted to interrogate him on January

20th, Edwards told the detention officer that he did not

want to talk to the detectives (R.B. 29). The State went to

great pains to dispute any other portions of Edwards’

testimony that it could. For example, it recalled various

detectives to testify how late the evening before Edwards

was taken to the jail (J.A. 90). It did not bother to present

any such testimony on this subject. Although the trial

court did find the testimony of the arresting officers to be

credible as compared to that of Edwards in those areas

where there was a conflict, his testimony that he did not

want to leave his cell when requested to do so by the

detention officer stands uncontradicted. Rather than

being reluctantly admitted facts as the State would have it,

both courts below agreed that Edwards did not want to be

reinterrogated, but was told that he must visit with the

officers. Justice Gordon, in his dissent, accepted this

testimony, and the trial court also concluded that the

officers, and not Edwards, instituted the reinterrogation

on the morning of the 20th.

The State would also have this Court believe that

Edwards was engaged in a carefully thought out strategy,

aimed at affording him the Opportunity to make a

statement and later deny that he had done so. It did so

8

partly on the basis of psychiatric testimony as to which the

State itself objected, and which objection the Court

sustained! Tr. March 24, 1977, pp. 4-6, 4-7. But it is

difficult to conceive of Edwards, as to whom that

psychiatrist reported intelligence levels ‘‘in the borderline

of dull-normal intelligence’’,* concocting a grandiose

scheme ‘‘to manipulate [the judicial system] to his

advantage”’ (R.B. 31) in the course of an overnight stay in

the Pima County Jail and in the grips of the frightened

mental turmoil that would inevitably follow from an arrest

for murder.

Another aspect of the so-called scheme to manipulate

the system to his advantage is the assertion by the State

that Edwards at some times denied having made the

statement as to which Marmion testified. As we have

previously indicated (Opening Brief, p. 55, n. 38), the

manner by which the prosecutor questioned Edwards at

the suppression hearing engendered confusion about

whether a ‘‘statement’? was taken from Edwards, as

opposed to whether Edwards made verbal statements to

the officers. By that time, Edwards’ wit and intellect had

been daunted by a year’s incarceration in the County J ail,

which, in the psychiatrist’s opinion, had dulled Edwards’

ability to think.’ Furthermore, the State’s contention that

¢ In the record, see the Report of Dr. David Gurland, December 13,

1976.

‘Tr. March 24, 1977, pp. 4-5. It is not surprising that spending a

year in the Pima County Jail dulled Edwards’ mental faculties. Like

many, this jail has been held to be overcrowded, to constitute

unconstitutional punishment in pretrial detention, and to impose

9

Edwards argued at trial that he had made no statement on

the 20th is contradicted by its own record-cited reference,

which shows that, in his unschooled words, he was asking

the jury to consider if the statement was ‘“‘with voluntarily

made’’. S.A. 65, 66.

Simply put, the State’s argument that Edwards inten-

tionally made a statement and then structured subsequent

events in order to manipulate the system makes no sense.

Edwards may well have felt it psychologically necessary to

relieve the police imposed pressure to give a statement by

giving one, but his adamant refusal to allow that statement

to be taped demonstrates clearly that he did not under-

stand the consequences of speaking. Once in the interro-

gation room Edwards may have agreed to talk with the

detectives, but it certainly is ludicrous to contend that he

did so as part of some bizarre design to defend himself by

making a statement he could later claim did not exist.*

Errors By The State in Discussing Miranda, Mosley,

And Case Law From The Circuit Courts Of Appeal.

The State stubbornly refuses to accept the fact that this

Court, in Miranda and Mosley, has established different

privations, hardships and risks of violence upon those who are jailed.

Erickson vy. Dupnik, Civ. No. 78-008-TUC-MAR (D. Ariz. 1980).

This Court can, of course, judicially notice such a judgment of the

District Court in the state from which Edwards’ case was brought.

Federal Rules of Evidence 201; Gilmore v. City of Montgomery, 417

U.S. 556 (1974).

* In fact, assuming the State is correct — that Edwards conjured up

such a scheme, it is questionable whether the plan would materially

10

rules for custodial interrogation of an accused who asks

for counsel, than it has for one who simply decides to

remain silent. Similarly, the treatment in its brief of lower

court cases on the subject misstates the law in the area.

The State argues’ that neither Miranda nor subsequent

cases of this Court interpreting it, distinguish between the

situation of an accused claiming his right to be silent and

that where he asks for the assistance of counsel, as to

limitations upon the right of police to conduct reinterro-

gations. The argument is founded upon a selectively

misleading quotation from the Miranda opinion. The

State simply left out of its brief the paragraph, 384 U.S. at

474, which said that police cannot reinterrogate a suspect

who has asked for an attorney until they provide him one.

The paragraph is one of three that have been quoted over

and over again by this Court, but an understanding of the

error made by the State requires that the section of

Miranda be requoted here. As extracted by the State of

Arizona in its Brief, page 18, the Miranda quotation is:

‘‘Once warnings have been given, the subsequent

procedure is clear. If the individual indicates in any

manner, at any time prior to or during questioning,

that he wishes to remain silent, the interrogation must

cease. At this point he has shown that he intends to

exercise his Fifth Amendment privilege; any

aid him in front of a jury. Certainly, if such a plan existed, it is

another in a plethora of indications that Edwards did not comprehend

the effects of speaking without advice of counsel.

” R.B. 18, 19.

1]

statement taken after the person invokes his privilege

cannot be other than the product of compulsion, sub-

tle or otherwise. Without the right to cut off question-

ing, the setting of in-custody interrogation operates

on the individual to overcome free choice in produc-

ing a statement after the privilege has been once

invoked. If the individual states that he wants an

attorney, the interrogation must cease until an attor-

ney is present. At that time, the individual must have

an Opportunity to confer with the attorney and to

have him present during any subsequent questioning.

If the individual cannot obtain an attorney and he

indicates that he wants one before speaking to police,

they must respect his decision to remain silent.

ee + &

If the interrogation continues without the presence

of an attorney and a statement is taken, a heavy

burden rests on the Government to demonstrate that

the defendant knowingly and intelligently waived his

privilege against self-incrimination and his right to

retained or appointed counsel.”’ R.B., page 18, citing

Miranda v. Arizona, supra.

The State then notes, page 19, that the passage ‘‘does not

say that the interrogation may not resume under any other

circumstances [other than when an attorney is present].’’

But, the omitted paragraph of the opinion, represented by

the above ellipsis in the State’s Brief, says:

12

‘*This does not mean, as some have suggested, that

each police station must have a ‘stationhouse lawyer’

present at all times to advise prisoners. It does mean,

however, that if police propose to interrogate a per-

son they must make known to him that he is entitled

to a lawyer and that if he cannot afford one, a lawyer

will be provided for him prior to any interrogation. If

authorities conclude that they will not provide

counsel during a reasonable period of time in which

investigation in the field is carried out, they may

refrain from doing so without violating the person’s

Fifth Amendment privilege so Jong as they do not

question him during that time.’’ 384 U.S. at 474.

(Emphasis supplied.)

The State next characterizes this Court’s holding in

Michigan v. Mosley, 423 U.S. 96, in a way that refers to

the bobtailed Miranda quotation in its Brief, in the follow-

ing terms:

‘‘This Court then held that the passage did not

create a ‘per se proscription of indefinite duration

upon any further questioning by any police officer on

any subject... .” 423 U.S. at 102-103.’’ Brief, page 18.

Again the elided material demonstrates the error. The rest

of the sentence consists of the qualifier, contained at page

103 of 423 U.S., ‘‘once the person in custody has indicated

a desire to remain silent.’’ (Emphasis supplied.)

By careful selection, the State has argued that what was

intended in Miranda and Mosley to refer to the situation

where an accused has chosen to remain silent, also allows

reinterrogation after the accused has asked for an

13

attorney. This Court has clearly stated otherwise.

Michigan v. Mosley, supra, 423 U.S. at 104 n.10

(Miranda ‘‘distinguishes between the procedural

safeguards triggered by a request to remain silent and a re-

quest for an attorney, and directs that ‘the interrogation

must cease until an attorney is present’ only ‘[i]f the indivi-

dual states that he wants an attorney’ ’’); id., at 109

(White J., concurring) (‘‘The Court showed in the very

next paragraph [the one omitted by the State of Arizona]

that, when it wanted to create a per se rule against further

interrogation after assertion of a right, it knew how to do

so.’’); Fare v. Michael C., 442 U.S. 707, 719 (1979) (‘‘the

Court fashioned in Miranda the rigid rule that an

accused’s request for an attorney is per se an invocation of

his Fifth Amendment rights, requiring that all interro-

gation cease’’). In short, this Court has understood the

distinction, even if the State has not. But the State’s

misreading of the law does not stop with this Court’s deci-

sion.

Both in the discussion of its own authorities on the sub-

ject, and its analysis of the cases cited by Edwards in the

Opening Brief, the State misstates the status of the law

among the Circuit Courts of Appeal on whether an

accused can be reinterrogated after he asks for a lawyer.'

* The State’s Brief is strangely silent on the authorities, from the

various states cited in the Opening Brief, recognizing a rule against

reinterrogation of a suspect who asks for counsel. Opening Brief, page

20, n. 12, page 23, n. 14.

14

The State cites U.S. v. Hauck, 586 F.2d 1296 (8th Cir.

1978), cert. denied, 441 U.S. 947 (1979), and Cobbs v.

Robinson, 528 F.2d 1331 (2d Cir. 1975), cert. denied, 424

U.S. 947 (1976), for the proposition that those circuits

which have ‘‘addressed this issue have held that there is no

such per se rule’’ (R.B. 10-11). Neither case mentions a per

se rule at all.°

The State similarly misapprehends the cases cited by

Edwards in his Opening Brief. As much is evident from

the statement, R.B. 14, that ‘‘the cases cited by Petitioner

do not lend support for his position. They address the

situation where a suspect requests an attorney, but the

police continued questioning the suspect in spite of the

request.’’ The quoted assertion by Arizona applies quite

precisely to what happened to Edwards: He asked for an

attorney, but they kept on questioning him the next morn-

ing.

And, the misapprehension borders on plain misstate-

ment. For instance, at R.B. 15, the Respondent says that

* In Cobbs, the defendant called his grandmoiier instead of a

lawyer when given the opportunity to use a phone. The Second Circuit

held this to be an abandonment of the right to counsel, 528 F.2d at

1342. Petitioner concedes (Brief, p. 17) that intentional delay on the

part of a criminal suspect in obtaining or seeking the advice of counsel

may justify further interrogation. But, in the case at bar, Petitioner

had never had a chance to obtain counsel. In Hauck, the defendant

“‘affirmatively withdrew his request for counsel before the interview

continued.”’ 586 F.2d at 1298. This holding is in line with Petitioner’s

contention that only defendant-initiated waiver may be allowed.

15

Thompson v. Wainwright, 601 F.2d 768 (Sth Cir. 1979),

“does not say that there could not be a subsequent know-

ing and intelligent waiver of counsel; it merely says

in that case there was none.’’ To the contrary:

**The more troublesome issue in this case is whether

officers Cunningham and Latham violated the per se

rule, established in Miranda and well recognized in

this circuit, that requires all custodial interrogation to

cease once the suspect asks for an attorney.’ 601 F.2d

at 770-71.

Similary, respondent claims that U.S. v. Priest, 409

F.2d 491 (5th Cir. 1969), does not address the issue now

before the Court, ‘‘that is, whether there can be a subse-

quent waiver of the right to an attorney once the suspect

has requested one.’’ R.B. 17. Priest, however, clearly

states:

‘Where there is a request for an attorney prior to any

questioning, as in this case, a finding of knowing and

intelligent waiver of the right to an attorney is impos-

sible.’’ 409 F.2d at 493.

The State also claims that United States v. Blair, 470

F.2d 331 (Sth Cir. 1972), cert. denied sub nom Crews v.

United States, 411 U.S. 908 (1973) did not address the

waiver or ‘‘per se’’ issue. But it did, emphasizing with

italics Miranda’s instruction that, if the Defendant asks

for a lawyer, ‘‘interrogation must cease until a lawyer is

present’’ and ‘‘there can be no questioning’’, 470 F.2d at

338. To the Government’s rejoinder of a claimed waiver,

the court said ‘‘[T]his circuit has squarely faced and re-

jected the Government’s theory on several previous occa-

sions.”’ Ibid.

16

In sum, if Miranda is to be given a logical application,

consistent with its constitutional purpose,'® this Court

should decline the State’s invitation to blur the distinction

between those who claim their right to counsel, as to

whom reinterrogation is disapproved, and those who

choose to remain silent, where reinterrogation may be per-

mitted if the suspect’s right to remain silent is scrupulously

honored.

Il

The State’s Misapprehension Of The Distinction

Between The Right To Counsel And The Privi-

lege Against Self-Incrimination, And Its

Incorrect Conclusion Concerning Waiver Of

Sixth Amendment Rights To Counsel

The State of Arizona has not deigned to tackle this

Court’s distinction between situations where counsel is

requested and those in which the right to silence is

invoked. It has not disagreed with this Court’s reasoning,

cited in our Brief, p. 16, that a claim of the right to counsel

is different because the accused has acknowledged his ina-

bility to deal with the police. Instead, the State turns, as

did the Arizona Supreme Court, to the assertion that this

Court’s statement of concern in Mosley, supra, about

rules that would provide ‘‘wholly irrational obstacles to

legitimate police investigative activity, and deprive

suspects of an Opportunity to make informed and intelli-

gent assessment of their interests’’, applies in this case.

‘0 **The meaning of Miranda has become reasonably clear and law

enforcement practices have adjusted to its strictures; I would neither

overrule Miranda, disparage it, nor extend it at this late date’. Rhode

Island v. Innis, __. U.S. ____, ____. (1980) (Burger, C.J., concurr-

ing).

17

Mosley, of course, spoke to situations where the accused

decides to remain silent, and not where he asks for

counsel. But, in any event, those concerns are inapplicable

to the situation posed by this case.

The State’s argument is that a per se rule, or even one

allowing only defendant-initiated interrogation, would

wrongfully prevent a criminal suspect from changing his

mind when he has once chosen to request the assistance of

counsel in his defense. Especially if defendant-initiated

reinterrogations are allowed, this assertion is untenable.

The State apparently bases its argument’ on the view that

the police should be allowed to present evidence to an

accused in order to fill him in on the state of the case

against him, so that he may make a rational and informed

decision as to whether to remain resolute in his desire to

consult an attorney. Surely, Edwards was not ina position

to evaluate the evidence from a legal standpoint in the way

his lawyer could have. It is hard to conceive of any aspect

of his overnight stay, in isolation in a sordid jail, that

better equipped Edwards to reconsider his decision of the

day before that he needed a lawyer to help him deal with

the State’s charges and its interrogation of him. It hardly

requires detailed recitation of the fear, loneliness, and

sensory deprivation that resulted from Edwards’ jailing

after his arrest for murder, to recognize that any statement

obtained on January 20 was theproduct of subtle coercion

caused by custody. It was not the result of a *frational and

'' See R.B. 21-23,

18

informed’’ change of mind about the need for a lawyer.

When a suspect is to be appointed counsel in a matter of

hours and has repeatedly asserted his rights to a lawyer

and to silence (illustrating his self-determined conviction

that he does not want to stand alone against the State), it is

absurd to argue that presenting evidence to him, after such

an interlude in jail, will aid his decision more than would

presenting the evidence to his lawyer several hours later.

The State contends that prohibiting reinterrogations

after an accused asks for counsel would hamper

investigative processes. But criminal prosecution had

already been commenced against Edwards.'? This case

does not concern investigative processes. It concerns the

conduct of the authorities toward a criminal defendant

after commencement of prosecution, and their attempts to

secure a conviction before actual trial had begun. This is

an extremely important distinction. There is a vast

difference between attempting to ascertain the identity of

the perpetrator of a crime, on the one hand, and

admittedly endeavoring to secure incriminating statements

from a criminal defendant who, having been formally

charged, is in custody, with the entire focus of the State’s

‘trial preparation’’ techniques trained on him. While this

Court properly considered in Mosley, supra, the effect

upon investigative activities of a per se rule against

'2 See R.B. 24, n. 47, where the State acknowledges ‘‘that

Petitioner’s right to an attorney existed from the moment he was

formally charged by the State on January 19, 1976.”’

19

reinterrogating an accused who chooses to remain silent,

that concern is lacking here, and the Arizona Court’s cita-

tion to Mosley’s statement as if it applied letter-for-letter

to a deprivation of the right to counsel is inapposite.'?

The State’s waiver analysis is also simplistic. Because of

the difference between situations after prosecution has

commenced, where the right to counsel implicit in a fair

trial is involved, and those beforehand, where investiga-

tive interrogations are common and the Fifth Amendment

rights are being protected, a higher standard of waiver un-

questionably applies. The closest the State has come to

recognizing this is its contention, R.B. 26, that Brewer v.

Williams, 430 U.S. 387 (1977), holds that such a right to

counsel can be waived. In fact, this Court simply said in

Brewer that it was not reaching the question whether the

right to counsel could be waived without notice to counsel;

it said only that Williams did not waive

his right to counsel, reserving the question of whether he

could ever do so. See, id., 430 U.S. 405-06. The State

mutilates this statement into a rule that waivers of Sixth

Amendment trial counsel rights can always be made.

Not quarreling with the proposition that interrogating

an accused who has a right to counsel before counsel can

attend is improper, unethical, and perhaps unconsitu-

tional, the State merely says that Edward is precluded

'* As we have already noted, there are, of course, additional distinc-

tions between Mosley and this case, founded upon the significance of

an accused asking for a lawyer’s help, rather than simply choosing to

be silent.

20

ey”

from raising this point. The issue is properly framed.

First, the admissibility of the confession, because of the

hurried interrogation before arraignment, was raised

and passed upon on Sixth and Fourteenth Amendment

grounds by the lower courts below.'* Moreover, it makes

no difference whether the language of cases talking about

ethical violations and violations of fundamental fairness

have previously formed part of the arguments in this case,

for this Court’s rule is well-settled that an issue is not

precluded if it is ‘tan enlargement of’’ that presented to

the state court or if it is ‘‘so connected with it in substance

as to form but another ground or reason’’ that the same

constitutional claim should be recognized. Dewey v. City

of Des Moines, 173 U.S. 193 (1899). Here, the same Sixth

and Fourteenth Amendment rights to counsel and to due

process generally are being asserted before this Court as

were raised below. Additional cases have developed

additional but integrally related reasons for this Court to

conclude that a violation of either the right to counsel or

due process occurred. See P.B. at 45 (ethical propriety of

interrogation should form part of definition of due

process).

‘4 The trial court expressly considered the case of State ex rel Berger

v. Superior Court, 105 Ariz. 553, 468 P.2d 580 (1970), J.A. 93, which

deals with the right of police to interrogate one who is entitled to

counsel, without telling appointed counsel they are doing so. Of

course, the issue was squarely before the Arizona Supreme Court, by

virtue of Justice Gordon’s dissent which said ‘‘I cannot condone the

tactics of the investigating detectives . . . knowing that an attorney

would not be appointed for him until the afternoon’’, J.A. 30.

21

For these reasons, police activity, which may pass

muster when judged relative to a suspect’s Fifth

Amendment rights, may not comport with the more

stringent requirements surrounding a suspect’s Sixth

Amendment right to counsel in criminal proceedings.

Carvey v. LaFever, 611 F.2d 19 (2d Cir. 1979).'* Not only

are courts more stringent in forbidding interference with a

suspect’s Sixth Amendment rights, they place a higher

burden on the State if a waiver of such rights is sought to

be shown. /d.; United States v. Satterfield, 558 F.2d 655

(2d Cir. 1976).

The State has not met the heavy burden placed upon it

to prove that Petitioner knowingly, intelligently and

understandingly waived his Sixth Amendment right to

counsel. Johnson v. Zerbst,; 304 U.S. 458 (1938). The trial

court never found that Petitioner had waived his Sixth

Amendment rights. If the Arizona Supreme Court made

such a finding, it was only by implication and was

'S The State made an interestingly selective use of Carvey v. LeFever

at R.B. 24. First, it argued that Carvey stands for the proposition that

the Sixth Amendment right to counsel can be waived. In the very next

paragraph, it argues that the waiver of Fifth and Sixth Amendment

rights to counsel are to be judged similarly. Carvey does support the

State’s first contention here, a point with which we disagree. But

continues:

‘‘What might suffice to comply with Miranda will not

necessarily meet ‘the higher standard with respect to waiver of

the right to counsel that applies when the Sixth Amendment has

attached.’ ’’ 611 F.2d at 22.

22

based on the erroneous use of the standard of Schneckloth

v. Bustamonte, 412 U.S. 218 (1973), not Johnson v. Zerb-

st.'© Schneckloth promulgated the standard applicable to

determining the voluntariness of Fourth Amendment con-

sents. It held that a court should look at the totality of the

circumstances, and that knowledgeof the right was only

one factor to be considered. Schneckloth v. Bustamonte,

412 U.S. 218, 226-27. But, in the same opinion, it was

recognized that Johnson v. Zerbst set the standard for the

waiver of the Sixth Amendment right to counsel, to be ‘‘an

intentional relinquishment of a known right or privilege.’’

412 U.S. at 236-37. The Arizona court applied the first

standard, which actually relates only to the Fourth

Amendment. It did not apply the standard it should have,

that arising from Johnson v. Zerbst and the Sixth Amend-

ment. Significantly, Justice Gordon’s dissent recognizes

that the majority did not apply the correct standard and

that the facts of the case would not fulfill the Johnson v.

Zerbst test. See 122 Ariz. at 217, 594 P.2d at 83 (Gordon,

J., dissenting). |

The facts which the State offers as proof of Petitioner’s

waiver of the right to counsel are relevant only, if at all, to

a waiver of the right to remain silent. Arguments to the

effect that Petitioner was warned, supposedly four times,

about making a statement (R.B. 30) and that a psychiatrist

‘6 The Arizona Supreme Court cited to that section of Schneckloth

in which Mr. Justice Stewart was rejecting the notion that a person

must be advised of his right to refuse consent to a search before any

consent could be considered voluntary.

23

testified that Petitioner could understand that anything he

said would be used against him (R.B. 31) are not relevant

to whether Petitioner waived his Sixth Amendment rights

to counsel. Neither are arguments concerning the absence

of coercion from solitary confinement (R.B. 28). These

argument go toward the voluntariness of the giving of a

statement under Miranda, not the understanding or

intelligent nature of an alleged waiver of counsel under

Brewer v. Williams, 430 U.S. 387 (1977), or Massiah v.

United States, 377 U.S. 201 (1964). To make that leap

requires a feat of nonsequitur logic that simply does not

work.

MICHAEL J. MEEHAN

Post Office Box 2268

Tucson, Arizona 85702

(602) 622-3531

Court Appointed Attoriiey

for Petitioner