Withrow v. WIlliams Jr. Brief Amici Curiae in Support of Respondent

    No. 91-1030

In the

Supreme fflaurt nf tin United States
O ctober T erm, 1991

PAMELA WITHROW,

Petitioner,

vs.

ROBERT ALLEN WILLIAMS, JR.,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF AMICI CURIAE OF 
THE POLICE FOUNDATION ET AL. 
IN SUPPORT OF THE RESPONDENT

H o n . Joseph D. T ydings 
A n d e r s o n, K ill, O lick & O shinsky 
2000 Pennsylvania Avenue, N.W. 
Suite 7500
Washington, D.C. 20006 
(202) 728-3100
Attorney for the Amici Curiae 

and Counsel of Record

M ichael M i l l e m a n n  
510 West Baltimore Street 
Baltimore, Maryland 21201 

Of Counsel



AMICI CURIAE

The Police Foundation 
Police Executive Research Forum 
International Union Of Police Associations 
National Black Police Association

Melton L. Alexander
Assistant United States Attorney, 
N.D. Alabama, 1966-82; First Assis­
tant, 1969-70; Chief, Criminal 
Section, 1970-82 (handled 20 sup­
pression hearings)

Robert D. Bacon
Assistant Attorney General of Alas­
ka, 1980-1990 (handled over 75 
appellate cases with suppression 
issues)

James C. Banks
Former Assistant State Attorney,
2nd Judicial Circuit, Leon County, 
Florida

Vincent Barrett
Former Division Chief, State Attor­
ney's Office, 2nd Judicial Circuit, 
Leon County, Florida 

Donald I . Bierman
Former Assistant United States 
Attorney, Southern District of 
Florida (handled roughly fifty 
suppression hearings); United 
States Department of Justice, 
Assigned Counsel to President John­
son's Commission on Crime (studied 
effect of Miranda decision); 
Department of Justice, Criminal



Appellate Division, 1965-68; Spe­
cial Counsel to Dade County, Flori­
da Grand Jury, 1969-70 

George W. Blow, III
Former Organized Crime Prosecutor, 
United States Attorney's Office, 
Northern District of Florida; For­
mer Chief Assistant, State Attor­
ney's Office, 8th Judicial Circuit, 
Florida; Assistant State Attorney, 
Special Prosecutor Unit, 3rd Judi­
cial Circuit, Florida 

Charles R. Brewer
United States Attorney, W.D. North 
Carolina, 1981-87 

Charles R. Breyer
Former Assistant Special Prosecutor 
and Chief Assistant District Attor­
ney for City and County of San 
Francisco (handled over 200 sup­
pression hearings)

Gary C. Christy
District Attorney, Cordele Judicial 
Circuit, Cordele, Georgia, 1977- 
1986 (handled hundreds of suppres­
sion hearings); President of the 
District Attorneys Association of 
Georgia, 1985 

W. Thomas Dillard
Assistant United States Attorney, 
E.D. Tennessee for 13% years; 
Court-appointed U.S. Attorney, E.D. 
Tennessee for 4 months; U.S. Attor­
ney, N.D. Florida, for 4 years 
(handled 250-300 suppression hear­
ings )

Kenneth Dresner
Former Deputy District Attorney, 
Gunniston County, Colorado



Charles Fels
Assistant United States Attorney, 
M.D. Tennessee, 1974-77; Assistant 
District Attorney, Tennessee, 1979- 
8 2 (handled hundreds of suppression 
hearings)

Lawrence B . Finegold
Former Assistant United States 
Attorney, Former Executive Assis­
tant to U.S. Attorney, W.D. Wash­
ington (handled many suppression 
hearings)

Robert E . Godwin
Assistant State Attorney, Dade 
County, Florida, 1974-80 

Stanley I. Greenberg
Assistant United States Attorney, 
Los Angeles, California, 1971-74 
(handled 100 suppression hearings) 

John M. Hassett
Former Assistant State's Attorney 
for Baltimore County, Maryland, 
1979-86; certified also as Assis­
tant United States Attorney, Balti­
more, Maryland, 1984-86 (handled 
20-25 suppression hearings)

Richard Hirsch
Deputy District Attorney, Los Ange­
les County, 1967-71 (handled 20 
suppression hearings)

Steven G . Horneffer
Former Assistant State Attorney, 
Seminole County, Florida, 1978-82 
(handled approximately 50 suppres­
sion hearings)

David B. Irwin
Assistant United States Attorney, 
District of Maryland; Chief, Nar­
cotics Unit, and Coordinator, Orga­
nized Crime and Drug Enforcement



Task Force for Mid-Atlantic Region; 
Chief, Criminal Trial Division, 
Baltimore County State Attorney’s 
Office, 12 years 

Mark J. Komoroski
Former Jackson County (Kansas City) 
Missouri, Prosecuting Attorney's 
Office; Former Kansas City Missouri 
Police Officer and Chief Warrant 
Officer

Robert J. Lerner
United States Attorney, Milwaukeee, 
Wisconsin, 1968-69; former Assis­
tant United States Attorney, Mil­
waukee, Wisconsin, 1964-68 (handled 
many suppression hearings)

John W. Lundin
Assistant United States Attorney, 
W.D. Washington, 1972-74 

Bruce M. Lyons
Supervisor, County Solicitor's 
Office, 1967-71 (handled hundreds 
of suppression hearings); former 
Municipal Court Judge, Broward 
County, Florida 

Michael Malkiewicz
Deputy Attorney General, Delaware 
Department of Justice, 1981-86 

Ivan K. Mathew
Assistant United States Attorney, 
District of Arizona, 1988-91 

Dan McClain
Former Assistant State Attorney, 
13th Judicial Circuit, Hillsborough 
County, Tampa, Florida, 1983-1989 
(handled over 50 suppression hear­
ings )

James B. McGuire, III
Deputy District Attorney, Alameda 
County, California, 1970-75 (han-



died roughly 200 suppression hear­
ings )

F . Russell Millin
Former United States Attorney, 
Western District of Missouri 

Dean B. Morphonios
Former Assistant State Attorney, 
Second Judicial Circuit, Leon Coun­
ty, Florida 

Michael D. Nasatir
Assistant United States Attorney, 
C.D. California, 1966-70 

L. William Porter, II
Former Special Assistant State 
Attorney, 5th Judicial Circuit, 
Florida 7th Judicial Circuit (White 
Collar-Economic Crimes Prosecutor); 
Police Officer for 12 years 

Robert A. Rand
Former Assistant State Attorney,
2nd Judicial Circuit, Florida; 
Former Special Prosecutor, Florida 
Statewide Grand Jury; Former Prose­
cutor, Officer of State Prosecu­
tion, Florida 

Boyd L. Richie
District Attorney, 90th Judicial 
Circuit, Texas, 1977-80; Assistant 
District Attorney, Wichita County, 
Texas, 1980-81 

J. Randolph Randy
Prosecutor for Wake County, North 
Carolina 1971-76; District Attorney 
for the Tenth Prosecutorial Dis­
trict, 1977-86 (handled or super­
vised over 1,200 suppression hear­
ings )

Peter Robinson
Assistant United States Attorney, 
Oregon, 1978-80; Department of



Justice, Public Integrity Section, 
1980-81; Department of Justice, San 
Francisco, 1981-88 (handled over 
100 suppression hearings)

Michael S. Ross
Assistant United States Attorney, 
S.D. New York, 1978-81; Assistant 
District Attorney, Kings County,
New York, 1974-78 

Stephen H. Sachs
Assistant United States Attorney, 
District of Maryland, 1961-1964; 
United States Attorney, District of 
Maryland, 1967-70; Attorney General 
of Maryland, 1979-1987 

J. Stephen Salter
Assistant United States Attorney, 
N.D. Alabama, 1971-76 

Irwin H. Schwartz
Assistant United States Attorney, 
W.D. Washington, 1972-75 (handled 
50 suppression hearings)

Bernard L. Seigel
First Assistant District Attorney, 
Erie, Pennsylvania, 1972-76; Deputy 
Attorney General/Special Prosecu­
tor, Pennsylvania Attorney Gener­
al's Office, 1976-78; Deputy Dis­
trict Attorney for Investigations, 
Philadelphia, 1978-86 (handled 40 
suppression hearings)

Barton C. Sheela, III
Assistant United States Attorney, 
S.D. California, 1976-79 (handled 
many suppression hearings)

Larry D. Simpson
Former Assistant State Attorney of 
the Second Judicial Circuit of the 
State of Florida (lead prosecutor 
in State v. Theodore Bundy) (han-



died in excess of 200 suppression 
hearings)

Neal R. Sonnett
Chief, Criminal Division, United 
States Attorney's Office, Miami, 
1970-72; Assistant United States 
Attorney, 1967-72 (handled 50-75 
suppression hearings)

A. M. Stroud, III
Assistant United States Attorney, 
Western District of Louisiana, 
1977-82; Chief of Criminal Section, 
1980-82; First Assistant District 
Attorney, Caddo Parish, Louisiana, 
1983-89 (handled hundreds of sup­
pression hearings)

George E. Tragos
Chief, Criminal Division, United 
States Attorney's Office, M.D. 
Florida, 1983-85; Assistant State 
Attorney, Florida, 1974-78 (handled 
over 100 suppression hearings) 

Patrick A. Tuite
State Attorney's Office, Cook Coun­
ty, 111., 1962-69; Chief, Criminal 
Section, 1967-69 (handled 50 sup­
pression hearings)

Gerald F. Uelmen
Assistant United States Attorney, 
Chief of Special Prosecutions, C.D. 
California, 1966-70 

John Wall
Department of Justice Trial Attor­
ney, 1963-69 and 1970-73; Chief, 
Massachusetts Attorney General's 
Office, Criminal Division, 1969-70 
(handled 35 suppression hearings) 

Patrick A. Williams
Osage County, Oklahoma County At­
torney, 10 years; Tulsa County



Assistant District Attorney, 3 
years (handled dozens of suppres­
sion hearings)

Henry G . Wykowski
Assistant United States Attorney, 
N.D. California, 1980-82; Trial 
Attorney, Department of Justice 
Criminal Division/Tax Section, 
1977-80



QUESTION PRESENTED
This brief will address the 

following question:
Whether the rule of Stone v. 

Powell, 428 U.S. 465 (1976), should be 

extended to bar a federal court, when 
considering a petition for writ of habeas 

corpus from a state prisoner, from enter­

taining a claim that alleges that the 

introduction at trial of unwarned custodi 
al statements violated Miranda v. Arizona

384 U.S. 436 (1966).



TABLE OF CONTENTS
PAGE

TABLE OF AUTHORITIES................... iii
STATEMENT OF INTEREST OF 
THE AMICI CURIAE...... ...............  2
SUMMARY OF ARGUMENT... ........... . 6

ARGUMENT... .......... ........... ...... 9
I. THERE IS SUBSTANTIAL SUPPORT 

IN THE LAW ENFORCEMENT 
COMMUNITY FOR MIRANDA 
AND ITS CONTINUED 
ENFORCEMENT IN HABEAS 
PROCEEDINGS BECAUSE IT 
PROTECTS THE RELIABILITY 
AND INTEGRITY OF THE TRIAL 
WITHOUT HARMING LEGITIMATE 
LAW ENFORCEMENT OBJECTIVES......... 9

A. Miranda's Purpose Was To 
Enhance The Reliability 
And Integrity Of The 
Fact-Finding Process........... 9

1. This Was The Purpose
Of Miranda................  9

2. The Enforcement Of
Miranda Is Accomplishing 
This Purpose...............13

i



PAGE
3. Federal Habeas

Enforcement Of Miranda
Is Vital To The
Effectuation Of
Miranda ' s Purpose......... 18

B. Miranda's Continued
Enforcement In Federal 
Habeas Will Not Harm 
Legitimate Law Enforce­
ment Objectives........ .......25

II. ENDING THE ENFORCEMENT OF 
MIRANDA IN FEDERAL HABEAS 
CORPUS WOULD SEND A DISTURBING 
MESSAGE, AND WOULD UNDERMINE THE 
CREDIBILITY OF OUR CRIMINAL 
JUSTICE SYSTEM....................33

A. The Abandonment Of Federal
Habeas Enforcement Of Miranda 
Would Understandably Be 
Viewed As A Serious Blow To 
Liberty And Would Erode The 
Public's Confidence In Police 
And The Courts......... .......34

B. Our Criminal Justice
System Would Lose Credibility 
If Serious Violations Of 
Miranda Could Not Be Remedied..37

CONCLUSION 41



TABLE OF AUTHORITIES

Brewer v. Williams, 430 U.S.
387 (1977).... ...................12

Cervi v. Kemp, 855 F.2d 702 
' (11th Cir, 1988), cert.

denied, 489 U.S. 1033
(1989) .............. ............. 21,23

Christopher v. Florida, 824 
F .2d 836~(11th Cir. 1987), 
cert, denied, 484 U.S.
1077 (1988)...... ........_____ . .23

Collazo v. Estelle, 940 F.2d 
411 (9th Cir. 1991) (en 
banc), cert, denied, 112
S. Ct. 870 (1992)... . ........... .19,21,23

Desire v. Attorney General of 
California, 1992 U.S. App.
LEXIS 15503 (9th Cir. July
10, 1992)...... .......... ...... .24

Edwards v. Arizona, 451 U.S.
477 (1981).___ ____...____...... .20,21,22

Jacobs v. Singletary, 952
F.2d 1282 (11th Cir. 1992).......24

Johnson v. New Jersey, 384
U.S. 719 (1966).... ..............10,12

CASES PAGES

i n



CASES PAGES
Kordenbrock v. Scroqqy, 919 

F.2d 1091 (6th Cirt 1990)
(en banc), cert, denied,
111 S. Ct. 1608 (1991)..... .....24

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

Oreqon v. Elstad, 470 U.S.
298 (1985)..................... . .11

Robinson v. Borq, 918 F.2d 
1387 (9th Cir. 1990), 
cert, denied, 112 S. Ct.
198 (1991)..........     .24

Schneckloth v. Bustamonte,
412 U.S. 218 (1973).“ .......... 10

Smith v. Endell, 860 F.2d 
1528 {9th Cir. 1988), 
cert, denied, 111 S. Ct.
5101991) . ."...............   .24

Smith v. Kemp, 664 F. Supp.
500 (M.D. Ga. 1987),
aff'd, 887 F .2d 1407 (11th
Cir. 1989) (en banc)............ 39, 40

Stone v. Powell, 428 U.S. 465
(1976)..... ......................2,6,8,41

Tennessee v. Garner, 471 U.S.
1 (1985)........ ................ 3,5

IV



CASES PAGES

Tovne v. Dugger, 899 F.2d 
1104 (11th Cir.), cert. 
denied, 111 S. Ct. 536 
(1990)...................... . .24

United States ex rel. Espin­
oza v, Fairman, 813 F.2d 
117 ("7th Cir. ) , cert. 
denied, 483 U.S. 1010 
(1987)......... ......... ........ 24

OTHER AUTHORITIES
Jonathan I.Z. Agronsky, Meese 

v. Miranda: The Final 
Countdown, ABA Journal,
Nov. 1, 1987, at 86........... ..31

Pete Yost, Police Chiefs 
Leader Supports Roll­
back of Miranda Rul­
ing, Others Disagree,
AP, Jan. 23, 1987 
available in LEXIS,
Nexis Library, AP
File...................... ......27

Police Chiefs Defend
Miranda Against Meese
Threats, Boston
Globe, Feb. 5, 1987,
at 25.... ........................16

v



OTHER AUTHORITIES PAGES

Conrad V. Hassell, In 
Defense of Fairness:
The Need for Miranda,
The Police Chief,
Dec. 1987 , at 12. . . .............. 15,35

Wayne R. LaFave, Consti­
tutional Rules for 
Police: A Matter of 
Style, 41 Syracuse L.
Rev. 849 (1990)..................26,30,

37,38

Nancy Lewis, 20 Years 
After Miranda, Police 
Say They’ve Learned 
To Live With Ruling;
Early Outrage At 
Decision On Suspects'
Rights Called "Over­
reaction" , Wash.
Post, June 13, 1986,
a f  i A

25,27

Tamar Jacoby, Fighting 
Crime by the Rules:
Why Cops Like Mir-
anda, Newsweek, July
18, 1987, at 53. ........ ....... . .31

Burt Solomon, Meese Sets 
Ambitious Agenda That 
Challenges Fundamen- 
tal Legal Beliefs, 17 
Nat'1 J. 2640 (Nov.
23, 1985)........................  33

v 1



OTHER AUTHORITIES PAGES

Special Committee on
Criminal Justice in a 
Free Society of the 
American Bar Associa­
tion Criminal Justice 
Section, Criminal 
Justice In Crisis
(Nov. 1988).... . . ............... passim

H. Richard Uviller,
Tempered Zeal: A 
Columbia Law Profes­
sor's Year on the 
Streets with the New 
York City Police,
(1988) . . . ....... ........ .28,37

Miranda Rule Is Safe­
guard, Waycross Jour­
nal-Herald, May 9,
1992, at 3............... .34

v i  i



No. 91-1030

IN THE

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1991

PAMELA WITHROW, 
Petitioner,

vs.

ROBERT ALLEN WILLIAMS, JR., 
Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF AMICI CURIAE 
OF THE POLICE FOUNDATION ET A L . 
IN SUPPORT OF THE RESPONDENT

The police organizations, law- 

enforcement officials, and former state 

and federal prosecutors listed on the



pages following the front cover submit 

this brief as amici curiae, pursuant to 

Rule 37 of the Court's rules, to assist 

the Court in determining whether the rule 

of Stone v. Powell, 428 U.S. 465 (1976), 
should be extended to apply to claims 

alleging that the admission at trial of 

unwarned custodial statements violated 

Miranda v. Arizona, 384 U.S, 436 (1966).1 

For the reasons stated herein, the Court 
should not extend the Stone rule to these 

claims.
STATEMENT OF INTEREST OF 

AMICI CURIAE
This brief is filed on the be­

half of four police organizations, and 

fifty former state and federal prosecu­

tors . *

Counsel for both petitioner and respondent 
have consented to the filing of this brief.

2



The Police Foundation was estab­

lished in 1970 by The Ford Foundation to 

improve policing and reduce crime in Amer­

ica through research, technical assis­

tance, and communication. The Foundation 

played a pivotal role in the development 

of community policing, paved the way for 
the advancement of women in policing, and 

is breaking new ground with its compara­

tive studies of large urban police depart­

ments. Foundation research on the use of 
deadly force was cited at length in Ten­

nessee v. Garner, 471 U.S. 1 (1985). The 
Foundation provides technical assistance 

and training to government at all levels, 
as well as to private institutions con­

cerned with public safety. In recent 
years, the Foundation has developed model 
programs designed to help municipalities 

improve relations between the police and

3



the community, adopt policies that foster 

cultural sensitivity, and reduce the use 
of excessive force by police.

The Police Executive Research 

Forum (PERF) is a national organization of 

law enforcement chief executives committed 

to promoting professionalism and advancing 
policing practices through research, ex­

perimentation, strong leadership and na­

tional debate. PERF members collectively 
serve more than 35 percent of the citizens 
in the United States.

The International Union of Po­
lice Associations (I.U.P.A.) is the AFL- 

CIO police union. The I.U.P.A. represents 
over 40,000 street-level police officers 
throughout the country in more than 200 
law enforcement agencies.

The National Black Police Asso­
ciation (NBPA) is a nationwide organiza­

4



tion of Black police associations dedicat­

ed to the promotion of justice, fairness, 

and effectiveness in law enforcement. It 

has over 130 member associations repre­

senting more than 35,000 individual mem­

bers, and has previously filed briefs in 
the Court on matters of significant impor­

tance to law enforcement. Cf. Tennessee 

v. Garner, 471 U.S. 1 (1985).
The fifty former prosecutors 

reflect an extraordinary breadth of expe­

rience in the trenches of our criminal 
justice system, and in the litigation of 
Fifth Amendment self-incrimination claims. 

Some have represented the interests of the 

United States in literally hundreds of 
hearings concerning the admission of cus­

todial statements; others have sought the 

admission of such statements in state 
prosecutions in an equally large number of

5



cases. As a group, they possess a unique­
ly informed perspective on the importance 

of the enforcement of Miranda v. Arizona, 

384 U.S. 436 (1966), in the state and 

federal courts.
Together, these organizations 

and individuals join their voices in urg­

ing the Court to resist the arguments of 

the State of Michigan and its amici, and 
to reject the extension of Stone to custo­

dial statement claims.
SUMMARY OF ARGUMENT

Despite initial opposition, 

enforcement of Miranda v. Arizona, 384 

U.S. 436 (1966), and its progeny in the 
state courts and the federal habeas corpus 

courts now enjoys widespread support in 
the law enforcement community. Miranda 1s 

enforcement has enhanced the reliability 

and integrity of the fact-finding process.

6



It must continue to be enforced in both 

the state courts and federal habeas corpus 

courts to prevent the unconstitutional 

imprisonment of citizens due to unreliable 

and coerced confessions.
The law enforcement community 

has seen the enforcement of Miranda and 
its progeny lead to an increased profes­

sionalism within police and sheriff's 
departments throughout the country. Mir­

anda 1s bright-line rules have proven rela­
tively easy to follow, have not hindered 
the process of securing voluntary custodi­

al statements from suspects, and have 
sensitized police to Fifth Amendment com­

mands. Prosecutors also find that issues 
of the admissibility of custodial state­

ments have been simplified, and that ju­
ries have more confidence in statements 

secured after Miranda warnings.

7



Amici feel strongly that extend­

ing the rule of Stone v. Powell, 428 U.S. 

436 (1976), to bar review of claims based 

upon Miranda and its progeny in federal 

habeas proceedings would send a disturbing 

message to the country and the law en­

forcement community, and would undermine 
the credibility of our criminal justice 

system. Many Americans view Miranda as a 

commitment to prevent intolerable police 
practices, and would view a bar to the 

review of Miranda claims in federal habeas 
proceedings as an abandonment of that 

commitment. The law enforcement community 
has no interest in seeing convictions 
based upon harmful Miranda violations go 
without legal remedy. In those instances 

where the state courts fail to provide 
such a remedy, federal habeas review 

should remain available.

8



ARGUMENT

I.
THERE IS SUBSTANTIAL SUPPORT IN THE LAW 
ENFORCEMENT COMMUNITY FOR MIRANDA AND 
ITS CONTINUED ENFORCEMENT IN HABEAS 
PROCEEDINGS BECAUSE IT PROTECTS THE 

RELIABILITY AND INTEGRITY OF THE TRIAL 
WITHOUT HARMING LEGITIMATE LAW 

ENFORCEMENT OBJECTIVES

A, Miranda 1s Purpose Was To Enhance 
The Reliability And Integrity Of 
The Fact-Finding Process

1. This Was The Purpose Of Miranda 
For years prior to the decision 

in Miranda v. Arizona, 384 U.S. 436 
(1966), the Court was concerned about the 
influence of coerced confessions upon the 

reliability and integrity of criminal 
trials. Miranda was fully in keeping with 

this longstanding concern. Thus, the 

Court's purpose in handing down Miranda 
was to protect the reliability and integ-

9



rity of the fact-finding process in crimi­
nal trials. As a later decision recog­

nized, "the basis for [the Miranda] deci­

sion was the need to protect the fairness 

of the trial itself."2
In protecting the fairness of 

the trial, Miranda provides "impor­
tant * * * safeguards against the use of 

unreliable statements at trial * * * ."3 

Thus, recognizing that the combination of 
custody and interrogation "contains inher­

ently compelling pressures which work to 

undermine the individual's will to resist 
and to compel him to speak where he would 

not otherwise do so freely,"4 the Court 
held that the Fifth Amendment's privilege

Schneckloth v. Bustamonte, 412 U.S. 218, 240
(1973) (citing Miranda, 384 U.S. at 466).

Johnson v. New Jersey, 384 U.S. 719, 730 
(1966).

Miranda, 384 U.S. at 467.

10



against self-incrimination applies to 

custodial interrogation conducted by the 

police.
The Court also concluded that in 

order to dispel the compulsion inherent in 

custodial questioning —  so that any 
statement secured from and used against a 

defendant is the product of his free will 

—  "protective devices" are needed.5 In 

the absence of these protections, there is 

a "presumption of compulsion" that is 
"irrebuttable for purposes of the prosecu­

tion case in chief * * * . "6
The Court decided that the use 

by the prosecutor in his case in chief of 
such compelled statements would violate

Id. at 458.

See Oregon v. Elstad, 470 U.S. 298, 307 
(1985) .

11



the Fifth Amendment privilege against 

self-incrimination, "the mainstay of our 

adversary system of criminal justice."7 

As the Court subsequently stated, coerced 

confessions not only deprive citizens 

charged with a crime of a central consti­

tutional right, they also "may well be 

untrustworthy by their very nature."8 

Accordingly, when a state court considers 
an alleged Miranda violation in the first 
instance, and when a federal habeas court 

does so in post-conviction review, they 
are often considering a challenge to "the 

integrity of the factfinding process" of 

the state trial.9

Johnson, 384 U.S. at 729.

See id.

See Brewer v. Williams, 430 U.S. 387, 414 
(1977) (Powell, J., concurring).

12



2. The Enforcement Of Miranda Is 
Accomplishing This Purpose
Our experience as law enforce­

ment officials and prosecutors convinces 

us that the enforcement of Miranda —  in 

the state courts, and where necessary in 

federal habeas proceedings —  has contrib­

uted substantially to effectuating the 
purpose behind Miranda, i .e ., preventing 

convictions obtained through the use of 

compelled confessions. That Miranda's 
enforcement is having this positive effect 
has been widely recognized. As the Wash­

ington Post reported in June 1986:
Supporters and opponents of 

the decision and subsequent 
modifications, agree that its 
enforcement has largely cured 
the problem the justices sought 
to overcome: lengthy and physi­
cally or psychologically brutal 
questioning by police used as a 
way to compel a suspect to con­
fess to a crime.10

See Nancy Lewis, 20 Years After Miranda, Po­
lice Say They've Learned to Live with Ruling,- 

(Footnote continued)
13



Moreover, the Special Committee 

on Criminal Justice in a Free Society, 

appointed by the American Bar Associa­

tion's Criminal Justice Section and con­

sisting of prosecutors, defense counsel, a 

police chief, law professors and a judge, 

concluded in November 1988, after (a) 
hearing testimony from police officers, 

prosecutors, defense attorneys and judges, 

(b) reviewing major criminal justice stud­

ies and (c) evaluating the result of a 
national telephone survey it commissioned, 

in which "over 800 defense lawyers, 
judges, prosecutors, and high ranking 
police administrators" were interviewed:

(Footnote 10 continued from previous page) 
Early Outrage at Decision on Suspects' Rights 
Called "Overreaction" , Wash. Post, June 13, 
1986, (hereinafter " 20 Years After"), at A4.

14



Miranda has a very important 
symbolic value, reminding police 
officers of the limits of their 
authority over suspects. It has 
also helped to professionalize 
police departments and very 
likely to reduce the incidence 
of physically coerced confes­
sions .1 1

As former FBI Section Chief 

Conrad V. Hassell has noted, state and 
federal court supervision of the interro­

gation process has had a dramatic and 

positive effect upon police agencies. 
"What Miranda did do, more than anything 

since the advent of the two-way radio in 
police cars, was to professionalize law 

enforcement."12 He learned during his

Special Committee on Criminal Justice in a 
Free Society of the American Bar Association 
Criminal Justice Section, Criminal Justice In 
Crisis (Nov. 1988) (hereinafter "ABA Special 
Committee Study"), at 2, 33-34.

Conrad V. Hassell, In Defense of Fairness:
The Need for Miranda, The Police Chief, Dec.
1987, at 12.

15



many years of service at the Bureau that
Miranda made police investigation

more sophisticated. Forensic 
and behavioral sciences and the 
law of evidence were emphasized 
in police training academies.
Law enforcement began the pro­
gression from skilled labor to a 
true profession, and much of the 
impetus for this massive reform 
came from the Miranda 
decision.13

This view is shared by local law 
enforcement officials as well. Former 

Boston Police Commissioner Francis Roache 
has noted that "Miranda made us more pro­

fessional. It forced us to appreciate the 

Constitution. We now have great respect 
for people and we want to protect those 
rights."14

Moreover, our experience has 
taught us that the bright line rules of

13 id.

14 Police Chiefs Defend Miranda Against Meese 
Threats, Boston Globe, Feb. 5, 1987, at 25.

16



Miranda and its progeny have proven easy

to follow. We wholeheartedly concur in
the view of one prosecutor interviewed by

the ABA Special Committee who stated that
Miranda * * * is a bright-line 
rule, easily understood, applied 
uniformly. We don't have any 
problem with it, and the police 
officers don't have any problem 
with it. [Miranda] is one of 
the great things you can have 
for a policeman. I have no 
problem with Miranda. * * *
I think it has provided an ap­
propriate level of warning to 
people who might not otherwise 
understand what their rights 
are.15

There is little question any 

longer that Miranda's enforcement has led 
to improvements, both within law enforce­

ment agencies throughout the country, and 
in the reliability of the statements pros 

ecutors present to juries when seeking 

convictions.

ABA Special Committee Study, supra, at 30.

17



3. Federal Habeas Enforcement 
Of Miranda Is Vital To The 
Effectuation Of Miranda 1s 
Purpose___________________

While Miranda and its progeny 
have had a significant and positive impact 

upon the law enforcement community's col­
lection and use of statements, these cases 
must continue to be judicially enforced —  

in both the state courts and federal habe­

as courts —  to prevent citizens from 

being unconstitutionally imprisoned be­
cause of unreliable and coerced confes­

sions. Indeed, a brief survey of reported 
cases shows a significant number in which 
(a) the police have engaged in conduct 

that creates an irrebutable presumption of 

compulsion, (b) prosecutors have neverthe­
less introduced the resulting confessions

18



at trial, and (c) the state courts have 

upheld the ensuing convictions.16
In such cases, only the enforce­

ment of Miranda in federal habeas corpus 

has secured the Fifth Amendment right that 

convictions not be brought about by uncon­
stitutionally compelled confessions. Ab­

sent federal habeas corpus, this Court's 

resolve to end the use of confessions 
secured through compulsion would not have 

been effectuated. Since such cases con­

tinue to occur, federal habeas corpus 

review is necessary.
Collazo v. Estelle, 940 F .2d 411 

(9th Cir. 1991) (en banc), cert, denied, 
112 S. Ct. 870 (1992), illustrates how 
essential federal habeas courts have been

We report only some of the cases we discov­
ered where relief has been granted during the 
past five years.

19



when state courts have failed to provide a 
remedy for even outrageous police miscon­

duct in securing statements. Writing for 

the full court in Collazo, Judge Trott 

found brazen, illegal police conduct that 

the state courts had not remedied. He 
identified in some detail the many police 

violations:
Here, Officer Destro took unfair 
advantage of [the compelling 
pressures that can weigh upon a 
person in custody]. At a point 
where the law reguired him to 
back off, he did not "scrupu­
lously honor" Collazo's right to 
cut off questioning; he stepped 
on it.

k k k

In this regard, Officer Destro's 
immediate interrogation of Col­
lazo in direct response to his 
request for a lawyer is a text­
book violation of Edwards.

* * *
What Officer Destro did can only 
be seen as badgering Collazo in 
the precise manner that con­
cerned the Edwards Court.

~k k k

20



Officer Destro's words are an 
egregious violation of Miranda 
—  the essence of improper law 
enforcement behavior in response 
to the rules established in 
that * * * landmark case.17

The court concluded that the admission of

the coerced statement was not harmless,

and, unlike the state courts, ordered the

State "to retry the petitioner without

using his taped statement."18
Equally egregious conduct by 

prosecutors has also been dealt with by 
the federal courts after the state courts 

have refused to provide a remedy. For 
example, in Cervi v. Kemp, 855 F.2d 702 

(11th Cir. 1988), cert, denied, 489 U.S. 
1033 (1989), Cervi was arrested in Iowa, 

and held on a Georgia murder warrant.

Collazo, 940 F .2d at 417, 418 (citing Edwards 
v. Arizona, 451 U.S. 477 (1981)).

Id. at 426.

21



After Cervi requested to speak with coun­

sel before proceeding with the hearing, a 
magistrate continued the hearing until the 

following day to allow Cervi to consult 

with appointed counsel. When appointed 
counsel arrived as scheduled to interview 

Cervi the following morning, the Iowa 

prosecutor and Georgia prosecutor refused 

to allow the meeting until Georgia au­

thorities commenced and completed their 
interrogation. Both prosecutors were 

aware of Cervi's request for counsel but 
both took affirmative steps to block the 

meeting.
After the state courts found no 

violation, the federal appeals court found 

a straightforward violation of Edwards v. 

Arizona, 451 U.S. 477 (1981). That court 

concluded:

22



Under these facts, the Edwards 
violation is clear. Cervi un­
equivocally invoked his right to 
counsel at the initial proceed­
ing before the magistrate. He 
was in uninterrupted custody 
from that time until after he 
gave his incriminating state­
ment. He did not in any way 
initiate the conversation that 
led to the statement. The Geor­
gia authorities knew of Cervi’s 
request for counsel prior to the 
time that he made his confes­
sion .1 9

Collazo and Cervi do not stand 

as solitary exceptions to otherwise full 

enforcement of Miranda by the state 
courts. Other obvious and harmful viola­

tions of Miranda and its progeny have 
frequently been remedied in federal habeas 

corpus after state courts have failed to 
provide relief. See, e .q ., Christopher v. 

Florida, 824 F.2d 836 (11th Cir. 1987) 
(police repeatedly refused to honor asser-

Cervi, 855 F .2d at 706.

23



tions of right to silence), cert, denied, 

484 U.S. 1077 (1988); Smith v. Endell, 860 
F .2d 1528 (9th Cir. 1988) (troopers ig­
nored unambiguous requests of suspect for 

counsel), cert, denied, 111 S. Ct. 510 

(1990) ,- Desire v. Attorney General of 

California, 1992 U.S. App. LEXIS 15503 
(9th Cir. July 10, 1992) (suspect asserted

right to counsel and police told counsel 
client would not be interrogated; police 

then interrogated suspect, barred attorney 
from seeing client and prohibited suspect 

from calling attorney).20

Among other cases where relief from unconsti­
tutional violations of Miranda and its proge­
ny has been granted only in federal habeas 
corpus are Jacobs v. Singletary, 952 F.2d 
1282 (11th Cir. 1992); Kordenbrock v.
Scroggy, 919 F.2d 1091 (6th Cir. 1990) (en 
banc), cert, denied, 111 S. Ct. 1608 (1991); 
Robinson v. Borg, 918 F .2d 1387 (9th Cir. 
1990), cert, denied, 112 S. Ct. 198 (1991); 
Towne v . Dugger, 899 F .2d 1104 (11th Cir.), 
cert, denied, 111 S. Ct. 536 (1990); United
States ex rel, Espinoza v. Fairman, 813 F . 2d 
117 (7th Cir.), cert, denied, 483 U.S. 1010 
(1987).

24



These cases plainly show that 

federal habeas corpus has been vital to 

the enforcement of Miranda rights and must 

remain available in the future.

B. Miranda's Continued Enforcement 
In Federal Habeas Will Not Harm 
Legitimate Law Enforcement 
Obj ectives _________________ ___

There is no question that when 

Miranda was first announced the law en­

forcement community responded overwhelm­

ingly in a negative way. "The initial 
reaction of police and police officials 

was that it was the end of justice. * * * 

I'm sure it was overreaction, but we 
thought it was ludicrous, ridiculous,
[and] that police would be handcuffed," 

recalled Montgomery County, Maryland, 

Police Chief Bernard D. Crooke.21

20 Years After, supra, at A-4 .

25



Yet in the subsequent twenty- 

five years, our view has changed, and 

changed dramatically. Professor LaFave 

speaks for many of us in saying "the Mir­

anda solution hardly looks like an in­

stance of overkill or an extremely liberal 

reaction to the problem."22 Quoting for­
mer Deputy Attorney General Saltzburg in 

part, he continues:
"Miranda is more of a compromise 
than most critics would care to 
admit," for it lies halfway 
between doing nothing to protect 
the fifth amendment privilege at 
the police station and protect­
ing it fully by ruling "that 
before interrogation, a suspect 
must be warned of his rights by 
a magistrate and asked whether 
he wishes to waive them."23

Wayne R. LaFave, Constitutional Rules for 
Police: A Matter of Style, 41 Syracuse L.
Rev. 849, 858 (1990).

Id. (quoting Stephen Saltzburg, Miranda v. 
Arizona Revisited: Constitutional Law or Ju­
dicial Fiat, 26 Washburn L.J. 1, 21, 23 
(1986)).

26



It is little wonder then that

former Assistant United States Attorney 

Gerald M. Caplan, a vocal critic of the 

decision, has concluded that Miranda "has 

fallen into the mainstream and has been 

accommodated. " 2 4
Moreover, we now recognize that 

Miranda's dictates have rarely hindered 

the pursuit of truth in the courtroom. 

Police Chief Jim Davis of Portland, Oregon 
speaks for many in saying "we've had no 

problems with the Miranda ruling. We 
haven't found it to be a hamper or a hin­

drance in any way."25
This view is shared by others 

who have given the matter considered re-

20 Years After, supra, at A-4.

Pete Yost, Police Chiefs Leader Supports 
Rollback of Miranda Ruling, Others Disagree, 
AP, Jan. 23, 1987 available in LEXIS, Nexis 
Library, AP File.

27



view. Professor Uviller, a long-time 
friend of law enforcement, concluded, 

after returning to the streets with the 

police during a several-month study, that 

" [w]hile Miranda may inhibit some exploi­

tations of custody, it clearly leaves the 
police as free as ever to try every psy­

chological ploy in the battle of wits to 

induce the suspect to furnish the evidence 
for his own conviction."26 And the ABA 

Special Committee's 1988 Study reached the 
same conclusion:

A very strong majority of those 
surveyed —  prosecutors, judges, 
and police officers —  agree 
that compliance with Miranda 
does not present serious prob­
lems for law enforcement. This 
conclusion taken together with 
earlier empirical studies as­
sessing the impact of Miranda is

H. Richard Uviller, Tempered Zeal: A Columbia 
Law Professor's Year on the Streets with the 
New York City Police, (Contemporary 1988) at 
212 .

28



a strong repudiation of the 
claim that law enforcement would 
be greatly improved if Miranda 
was repealed or overruled.2 ;

Indeed, many of us know from our 

years in the trenches that Miranda has 

actually assisted prosecutors, by aiding 

their efforts to show that statements 
taken from suspects were secured fairly 

and were not the product of heavy-handed 

measures. Problems of proof, as well as 
occasional doubts about whether officers 

were being candid and truthful in their 
description of interrogations, lessened 

with the advent of written advice cards 
and waiver forms that often included the 

suspect's signature. Rarely do prosecu­
tors have to contend anymore with the 

problems of yesteryear. We completely

ABA Special Committee Study, supra, at 28 
(citations omitted).

29



agree with the statement of one prosecutor 

to the ABA Special Committee that "juries 
attach greater credibility to confessions 

that are obtained after Miranda 

warnings."2 8

Although some in law enforcement 
wish to see Miranda weakened or even re­

versed, recent criticism has come largely 

from politicians, not from prosecutors and 
police.29 Surely, only a small minority 

want to see Miranda enforced less effec- * 30

ABA Special Committee Study, supra, at 29 
(discussing prosecutor's views quoted at 29-
30 of that study).

As Professor LaFave has observed:

"The Miranda bright line rules made it 
relatively easy for well-intentioned 
police to comply. This is why one sel­
dom hears complaints about Miranda from 
police; these days, Miranda-bashing is 
largely confined to those trying to make 
political hay."

LaFave, supra, at 856 (footnote omitted) .

30



Lively, or continue to seek its outright 

demise.
Like most law enforcement offi­

cials, former Attorney General Griffin 

Bell supports the continued retention and 

enforcement of Miranda.3 0 So do former 
Houston Police Chief, and current Police 

Commissioner in New York, Lee Brown,31 and

An ABA Journal article reported:

"As a practical matter, Miranda has been 
serving us well," says Griffin Bell, an 
Atlanta lawyer who was attorney general 
under President Jimmy Carter. "It pro­
tects our rights under the Fifth and 
Sixth Amendments, and I don't know of 
any better alternative. It is part of 
the American way of life now. Even the 
police don't want to do away with it.
And I talked to quite a number of them 
[while at the Justice Department]."

Jonathan I.Z. Agronsky, Meese v. Miranda: The 
Final Countdown, A.B.A.J., Nov. 1, 1987, at 
86 , 88 .

Mr. Brown does not see a need to lessen the 
enforcement of Miranda because he doesn't 
"see any detrimental impact" [from the deci­
sion] . Tamar Jacoby, Fighting Crime by the 
Rules: Why Cops Like Miranda, Newsweek, July 
18, 1987, at 53.

31



former Newark Police Director Hubert Wil­

liams.32 Their views are shared by prose­
cutors throughout the country.

It is little wonder, then, that 

those who have labored long to enforce our 

nation's Constitution and laws in an even- 

handed manner urge retention of the status 
quo, and that Miranda continue to be en­

forced fully. For example, then-United 
States Attorney for the Southern District 
of New York, Rudolph W. Guiliani, has 

supported Miranda and has cautioned, "I 
generally don’t think we should change 
things unless there’s a terribly good 

reason to do [so]. There’s real benefit

"Officers want respect. * * * W e ’ve gotten 
away from force and coercion. Nor do we want 
to be accused of that." Why Cops Like Mir­
anda , supra, at 53. Miranda has made it 
harder to level those charges.

32



in keeping things stable."33 The Court 

would certainly be changing things without 
"a terribly good reason to do [so]" if, 

after all these years of the availability 

of federal habeas corpus review, it ac­

cedes to the view that Miranda is deserv­

ing of lesser protection.

II.
ENDING THE ENFORCEMENT OF MIRANDA IN 

FEDERAL HABEAS CORPUS WOULD SEND A DIS­
TURBING MESSAGE, AND WOULD UNDERMINE THE 

CREDIBILITY OF OUR CRIMINAL JUSTICE SYSTEM
A decision declaring that Mir­

anda rights can no longer be enforced in 

federal habeas proceedings would send a 
disturbing message to the public and to 

law enforcement, by guaranteeing that an 
unacceptable number of cases based upon

Burt Solomon, Meese Sets Ambitious Agenda 
That Challenges Fundamental Legal Beliefs, 17 
Nat'1 J. 2640 (Nov. 23, 1985).

33



harmful Fifth Amendment violations will go 
without any remedy.

A. The Abandonment Of Federal Habeas 
Enforcement Of Miranda Would 
Understandably Be Viewed As A 
Serious Blow To Liberty And Would 
Erode The Public's Confidence In 
Police And The Courts_____________

For many Americans, Miranda has 
become a uniquely important symbol of 

freedom. Most people view Miranda as an 
emblem of the Court1s forthright commit­

ment to ensuring that "third degree" po­
lice practice would end, once and for 
all.34

A retreat in the Court1s commit­
ment to Miranda1s enforcement would engen­

Indeed, not long after the Court announced it 
would review this case, a newspaper in rural 
south Georgia published an editorial which 
alerted its readers that this case "could 
alter a landmark ruling," and urged the Court 
to retain the status quo and "uphold the Mir­
anda Rule as a fair and reasonable criminal 
case procedure." Miranda Rule Is Safeguard, 
Waycross Journal-Herald, May 9, 1992, at 3.

34



der justifiable alarm. As many of our 

cities simmer, and as distrust of the 
police is tragically on the rise, a deci­

sion constraining the federal courts' 
power to remedy even blatant disregard of 

Miranda would understandably be recognized

by many as a serious blow to liberty.
Former FBI Section Chief Hassell 

does not overstate the case when he says 

that "[i]t is still true that the quality 
of a society can be judged on how well it 

treats the least of its citizens. If we 

abandon Miranda, we will fail this 
test."35 Judicial surgery removing Mir­
anda from federal habeas jurisdiction will 

surely be viewed as abandonment of the 
Court's assurance that coercive police 

methods will not be countenanced.

Hassell, supra, at 12.

35



Moreover, the ABA Special Com­

mittee was correct when it concluded that 
a lessening of the commitment to Miranda 

would send a disturbing message to the law 

enforcement community itself:

Although it does little to im­
pede the police in their inves­
tigations, Miranda has a very 
important symbolic value, re­
minding police officers of the 
limits of their authority over 
suspects.3 6

In our democratic society, it is 
essential that we never lose sight of the 

need for the enforcement of the Constitu­
tion with respect to police interrogation 
and confessions —  by both state and fed­

eral habeas courts. "Miranda correctly 
recognizes that the mere coincidence of 

custody and interrogation 'contains inher­
ently compelling pressures which work to

ABA Special Committee Study, supra, at 33.

36



undermine the individual’s will to resist 

and to compel him to speak where he would 
not otherwise do so freely.'"37 As Pro­

fessor Uviller eloquently stated:
The situation presents too easy 
and tempting an opportunity for 
the natural affinity of interro­
gation and torture to reassert 
itself in some form, however 
subtle. The notorious police 
appetite for a confession some­
times —  not invariably, but 
sometimes —  leads to oppressive 
exploitation of an inherently 
unequal situation.38

B. Our Criminal Justice System 
Would Lose Credibility If 
Serious Violations Of Miranda 
Could Not Be Remedied

If the ability of the federal 

courts to employ Miranda to overturn un­
constitutional convictions resulting from

LaFave, supra, at 858, quoting Miranda, su­
pra, 384 U.S. at 467.

Uviller, supra, at 193.

37



coerced confessions is eliminated, the 
bright-line rules of Miranda will no long­

er be enforceable in all courts. Instead, 

the focus of federal habeas litigation 

concerning confessions will be the volun­

tariness test. Yet, under that test, the 
reliability and integrity of our criminal 

justice system will suffer, because, as 

Professor LaFave has pointed out:
If we learned anything from the 
pre-Miranda exclusive reliance 
upon the voluntariness test, it 
was that a confession standard 
dependent upon a swearing con­
test between the police and 
defendant as to what occurred 
behind closed doors could not be 
relied upon to prevent police 
lawlessness.3 9

One result of a decision strip­
ping Miranda claims from federal habeas 

courts would therefore be that there would

LaFave, supra, at 859 (citation omitted).

38



be people unconstitutionally convicted on 

the basis of tainted confessions who would 
remain unable to secure any judicial reme­

dy at all. An example might be the case 

of William Alvin Smith (a/k/a "Noodle"), a 
retarded defendant who was convicted and 

sentenced to death largely on the basis of 

a confession he signed after hours of 
incommunicado interrogation.40 Smith 

would have been able to understand his 
rights, if at all, only if the police had 
very slowly and carefully explained each 
right. Because the record failed to show 

that the police had explained his rights 

slowly enough so that Smith could under­
stand them, the federal habeas corpus 
court held that the prosecution had not

See Smith v. Kemp, 664 F. Supp. 500 (M.D. Ga. 
1987), aff'd, 887 F.2d 1407 (11th Cir. 1989) 
(en banc).

39



met its burden of showing a knowing and 
intelligent waiver of his Miranda rights. 

The court also concluded that the admis­

sion of the statement was harmful as to 

the jury's decision to impose the death 

sentence.41 Under a less clearly defined 

standard, Smith might have secured no 

relief at all.
The integrity, as well as the 

reliability, of our criminal justice sys­
tem would be tarnished by effectively 

telling the William Alvin Smiths of this 
country: "yes, your statement was intro­
duced at trial in violation of Miranda, 

but you will be convicted —  or even exe­
cuted —  because the state courts made a 
mistake and failed to grant you a new 
trial, and those are the only courts we

Smith, 664 F. Supp. at 506.

40



will allow to consider your claim." Where 

such serious errors are not remedied in 
the state courts, the federal courts must 

remain free, in habeas proceedings, to 

grant relief.
Moreover, going back to the 

vague and undefinable "voluntariness" 

standard would make it more difficult to 
defend, in the federal courts, the admis­
sibility of properly obtained statements. 

For these reasons, we urge the Court to 

preserve the status quo.

CONCLUSION
The Court should not extend the 

rule of Stone v. Powell, 428 U.S. 465 
(1976), to bar a federal court, when con­

sidering a petition for a writ of habeas 
corpus from a state prisoner, from enter­
taining a claim that the introduction at

41



trial of custodial statements violated 

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

Dated: July 31, 1992

Respectfully submitted,

Anderson, Kill, Olick & Oshinsky 
2000 Pennsylvania Avenue, N.W. 
Suite 7500
Washington, D.C. 20006 
(202) 728-3100

Attorney for the Amici 
Curiae and 

Counsel of Record

Of Counsel:
MICHAEL MILLEMANN
510 West Baltimore Street
Baltimore, MD 21201

42



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