Moran v. Burbine

PETITIONER:John Moran, Superintendent of the Rhode Island Dept. of Corrections
RESPONDENT:Brian K. Burbine
LOCATION:Cranston Police Station

DOCKET NO.: 84-1485
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 475 US 412 (1986)
ARGUED: Nov 13, 1985
DECIDED: Mar 10, 1986

ADVOCATES:
Mr. Andrew L. Frey – on behalf of the United States, as amicus curiae, in support of Petitioners
Constance L. Messore – on behalf of Petitioners
Robert B. Mann – on behalf of respondents
Robert E. Mann – on behalf of Respondents

Facts of the case

Brian Burbine was arrested for burglary in Cranston, Rhode Island. Police then received information connecting Burbine to a murder that happened in town a few months earlier. Burbine was read his Miranda rights and held for questioning. At first, Burbine refused to waive his rights, but later he signed three forms acknowledging that he understood his right to an attorney and waived that right. After questioning, he also signed three written statements admitting to the murder. That same night Burbine’s sister called the local Public Defender’s Office to get a lawyer for her brother. The sister did not know about the potential murder charge. When the Public Defender called the Cranston Police Station, police told her that Burbine was unavailable and would not be questioned until the next day. Police never told Burbine that an attorney attempted to contact him.

At trial, the judged denied a motion to suppress the statements made at the police station, holding that Burbine knowingly, intelligently, and voluntarily waived his right to counsel and privilege against self-incrimination. The U.S. District Court for the District of Rhode Island denied Burbine’s petition for a writ of habeas corpus. The U.S. Court of Appeals for the First Circuit reversed, holding that the police officer’s deliberate or reckless failure to inform Burbine that his counsel attempted to contact him invalidated his waiver of rights.

 

Question

Does the self-incrimination clause of the Fifth Amendment require the suppression of three confessions and three valid waivers of rights, when an attorney unrequested by the defendant was given misleading information by a police officer about interrogations and the defendant was not informed of the attorney’s call?

Warren E. Burger:

Mrs. Messore, I think you may proceed whenever you’re ready.

Constance L. Messore:

Thank you, Mr. Chief Justice, and may it please the Court:

This case is here on Petitioner’s petition for certiorari to the First Circuit Court of Appeals.

The Petitioner in this case contends that the First Circuit erred when it reversed the judgment of the federal district court and issued the Respondent’s petition for a writ of habeas corpus.

In doing so, the First Circuit held that the Respondent’s three written waivers of his Miranda rights and his three signed confessions should be suppressed because, although, he had beer given the complete Miranda warnings prior to each confession and he had agreed to waive his rights, his waivers were not knowingly made whom he had not requested, had because an attorney, called the police station where he happened to be in custody, had been given misleading information by whomever answered the telephone and was told that there would be no further interrogation of the Respondent that night, and the Respondent was not informed of this telephone call.

I feel in this particular case that it’s important to briefly summarize the facts, and then I would like to explain why the First Circuit has misconceived the role of the attorney under the Miranda case in our opinion.

The Respondent, Brian Burbine, was arrested with two other men on a breaking and entering charge by the Cranston police.

He was taken to the police station and he was… the other two men were interrogated by the Cranston police.

As a result of this interrogation, there was suspect cast on Brian Burbine that he might be a suspect in a murder that had taken place in a neighboring town… city of Providence three months prior to his present arrest.

At this time the Cranston police called the Providence police, who came to the Cranston police station.

They gave Burbine his Miranda rights, and first he said that he had had nothing to do with Mary Jo’s murder.

And so they put him back into the smaller room where he had been kept.

But about ten minutes later, they heard a banging and a kicking on his door, and he was brought out into the main room and he told them that he was sorry for what he’d done, he was disgusted, and that he wanted to confess.

At this time the Providence police again gave him his Miranda warnings orally, he read them, he signed a waiver, and then eventually signed a written confession implicating him in the murder of Mary Jo Hickey.

He was placed back in the room and shortly thereafter he stain initiated a conversation with the police, saying that he had left something out, there was more that he wished to say.

He was brought out, again given his Miranda rights orally, signed a written waiver, and gave an additional confession.

It just so happened that this same evening somehow his sister had discovered that he had been arrested on this breaking and entering, and she called the public defender’s office about 8:00 o’clock in the evening to get an attorney for him.

It appears that Brian Burbine himself had an appointment with a public defender named Casparian that afternoon at 4: O0 o’clock, but he’d been unable to keep the appointment because of his arrest.

The person who answered the phone at the public defender’s office said that Casparian was not available, but she got another attorney, attorney Munson, who at 8:15 called the police station and asked if Brian and Sparks, the other man with him, were being held.

She said she asked for the detective division and somebody, a male voice, answered “detectives”, said that, yes, he was being held.

She said, although Casparian was the attorney who represented Burbine, he was not available, but if he was to be placed in a lineup or further interrogated that evening she would be available.

The answer that she got, she testified, was that he was not going to be further interrogated that evening; in fact,

“we’re through with him for the night. “

At this point she did not pursue the conversation, she did not leave any instructions as to Burbine, nor did she ask that any message be given to him.

And in fact, Burbine was never told about this telephone call.

The next morning, Burbine was taken to the Cranston police district court, he was arraigned and he was handed over to the Providence police, who took him to their station, gave him again his Miranda warnings.

He again signed a waiver, gave a confession.

And at this point the Providence police said: We’re going to get an attorney for you because you’re about to be placed in a lineup.

He still said he did not want an attorney.

But at this time, when he was told that he must have one, he mentioned Casparian’s name and the public defender’s office was contacted.

Constance L. Messore:

All of the police who testified at the suppression hearing in this case, the Cranston detectives and the Providence detectives, claimed that they had not received a telephone call from the attorney, nor did they know anything about it.

At the suppression hearing, it was the xx position that this call had never been made.

But the trial judge did find that the call was made and that someone, whomever it was, had received this call.

In addition, the trial court–

Harry A. Blackmun:

I suppose that’s binding on us, isn’t it?

Constance L. Messore:

–Yes, I believe it is, Your Honor.

The trial justice also found that he could find no conspiracy or collusion on the part of the Cranston police in attempting to keep Burbine from an attorney, that he had knowingly waived his rights, and that he had not asked for an attorney.

That he had not asked for one?

Constance L. Messore:

That he did not ask for an attorney, that’s correct, Your Honor.

Thurgood Marshall:

At any time?

Constance L. Messore:

No, he did not.

Even at the very end, when he was giving the third confession, he said he didn’t want one, but the police insisted.

Thurgood Marshall:

And at that state they said you have to have one.

Constance L. Messore:

That’s correct, Your Honor.

Thurgood Marshall:

Now, the difference between them not producing the lawyer and insisting that he take a lawyer was the confession?

Constance L. Messore:

Well, it was… yes, because now he was going to be placed in a lineup.

At his trial–

Warren E. Burger:

Well, the police required a lawyer at the lineup–

Constance L. Messore:

–Yes, that’s correct.

Warren E. Burger:

–following what judges have told them they must do.

Constance L. Messore:

Yes, that’s correct.

Warren E. Burger:

Even if they have waived a lawyer earlier.

Constance L. Messore:

Yes.

Well, he told Brian at that time: It’s our procedure and you must have a lawyer.

The Rhode Island… he was convicted at a jury trial of first degree murder of Mary Jo Hickey and then the Rhode Island Supreme Court upheld the conviction, stating that the Miranda rights are personal rights and that he had the right to waive them, and that it hardly seemed conceivable to them that an attorney whom he had not requested if he had known about it would have gone upon his information necessary to make a knowing waiver of his rights.

Harry A. Blackmun:

That was a three to two decision?

Constance L. Messore:

That’s correct, Your Honor, it was.

The federal district court, giving substantial deference to the state court’s finding of historical fact, agreed with the Rhode Island Supreme Court and they did not grant his petition for a writ of habeas corpus.

But the First Circuit court reversed and they gave what they described as a limited ruling when they said deliberate or reckless misleading of an attorney who has a legitimate professionally ethical interest in a suspect in custody, who expresses to the police a desire to be present at any interrogation of the suspect, combined with a police failure to communicate that exchange to the suspect, is more than just one factor in the calculus of waiver.

This combination of circumstances, the First Circuit said, clearly vitiates any claim that a waiver of counsel was knowing and voluntary.

Sandra Day O’Connor:

Mrs. Messore, do you think this case would be any different from your perspective if the defendant had actually engaged an attorney or had reached arrangements with someone specifically to represent him and the police acted as they did here in refusing to let the attorney see the defendant?

Constance L. Messore:

Do you mean… excuse me, Your Honor… prior to his arrest?

Sandra Day O’Connor:

Prior to the questioning, in any event.

Constance L. Messore:

Well, I’m afraid I don’t really understand that.

I think if he had an attorney… and we would say here that Casparian was his attorney… and then he was arrested and brought to the police station, that, no, the police… our argument would be that the attorney had no right at that particular time to see him unless he himself requested the attorney.

It’s our argument that the First Circuit has–

Sandra Day O’Connor:

Would your argument be the same regardless of the degree or extent of the deception by the police?

Is there any point at which you would–

Constance L. Messore:

–Our argument would be the same, You Honor, in any circumstances.

The ruling of the First Circuit goes beyond the purpose of Miranda, because Miranda when it extended into the police station these procedural safeguards to prevent the police from violating a suspect’s right to be free from coerced self-discrimination guaranteed to him under the Fifth Amendment, these procedural guidelines and Miranda rights were to protect his rights when he was in custody and when he was being subjected to interrogation.

But they were also to provide the police with guidelines, or these bright-line rules, as they’re called, which could be readily understood and easily applied by the police, and thereby relieve them and the lower courts from making exceedingly difficult case by case judgments as to whether a particular confession was voluntary.

The police are required to give the well-known Miranda warnings and any time that they did not give these warnings obviously his confession would have been inadmissible.

But these Miranda warnings are not themselves rights protected by the Constitution.

They’re only the procedural safeguards designed to provide a practical reinforcement for his right against compulsory self-incrimination.

And Burbine was given these rights verbally at least three times.

He read them, he said he understood them, he said that he was able to read fairly well.

He also was told at the time that he signed the confession.

The questions were read to him.

He would answer them and they are were typed by the police as the questions were asked and read.

He was told that he could stop in the middle of the questioning any time that he wished to, and again, do you understand that you do have a right to an attorney, and he said yes.

So our is that he certainly well understood these rights before he signed the waiver forms.

Sandra Day O’Connor:

–Well, even if you’re right on the Fifth Amendment point, what about the Sixth Amendment?

And do the cases of this Court leave open, in your view, any question about whether the Sixth Amendment protects an established attorney-client relationship from state interference with it?

Is that question open?

You want us to assume there was an established attorney-client relationship here, do you?

Constance L. Messore:

Well, originally in the state court it was argued that there was not, and I believe the state court found that there was not.

But when the federal district court received this case, apparently for rome reason… and I’m not familiar with the tactics of the persons that handled this case… they decided to drop that argument.

Sandra Day O’Connor:

Well, how do you propose that we treat it for purposes of the Sixth Amendment, as though there is an established attorney-client relationship here?

Constance L. Messore:

I think for this case certainly we’ll have to accept that.

But I would say the Sixth Amendment we will claim does not apply to this particular case because adversarial proceedings had not yet been instituted against him.

Sandra Day O’Connor:

Well, you’re relying on Gouveia.

Constance L. Messore:

That’s right, Your Honor.

Sandra Day O’Connor:

But you recognize that there could be an established attorney-client relationship before a formal proceeding in court?

Constance L. Messore:

Yes, I do.

Sandra Day O’Connor:

And you think that the state at that stage is free to interfere with that relationship?

Constance L. Messore:

Under the Fifth Amendment–

Under the Sixth Amendment?

Constance L. Messore:

–Under the Sixth Amendment, yes, I think until the adversarial proceedings or a lineup have been instituted against him that he is not entitled to have that attorney unless he requests the attorney’s presence, if he has Been given his complete Miranda rights, of course.

Sandra Day O’Connor:

Well, I had thought those cases were dealing with when an attorney had to be provided, but had not decided the question of state interference with an existing relationship before that time if it existed.

Constance L. Messore:

We don’t argue that he’s entitled to this attorney until the adversarial proceedings have been instituted, whether or not he has been retained in the past.

Harry A. Blackmun:

I’m still confused a little bit.

Perhaps I didn’t hear you correctly.

Do you concede that there was an established attorney-client relationship here, or do you take the position that it has not been established.

Constance L. Messore:

I think I’m bound to in this position, Your Honor, because the state when this case went before the federal district court seemed to concede that issue, that there was an attorney–

Byron R. White:

Even though the prisoner didn’t know it?

Constance L. Messore:

–Well, in his own mind, he knew he had an appointment with an attorney that afternoon.

He certainly knew there was one available to him and one who was dealing with him on another criminal matter.

So he certainly knew that there was an attorney available and he knew of an attorney by name.

Byron R. White:

Well, he didn’t know he was available for this action.

Constance L. Messore:

Well, he didn’t request him.

Byron R. White:

Well, he didn’t even know he was available for this action.

He didn’t know whether the attorney would represent him for this purpose also, did he?

Constance L. Messore:

At this particular time–

Byron R. White:

He didn’t know.

Constance L. Messore:

–no, he didn’t.

Byron R. White:

Maybe his family did.

Constance L. Messore:

Yes.

All the courts who reviewed this case, including the First Circuit, found that this was a valid and knowing waiver if you excluded the evidence about the telephone call.

But the First Circuit is the first court that felt that this particular call changed the outlook of the case.

The police neglect in telling Burbine of the attorney’s call was not an inherently coercive action directed towards him which could produce a per se involuntariness or overbear his will and capacity for self-determination, and we argue that any Fifth Amendment situation most have an element of coercion in it to say that he has not knowingly and willingly waived his rights.

Constance L. Messore:

The action of the police in providing this information to the attorney, which is what the suspect in this case is complaining of, we say was not improper under the Fifth Amendment, because even the First Circuit said:

“Our analysis being on the suspect’s Fifth Amendment rights, the question is not how badly counsel was misled, but the effect of any misrepresentations on the knowingness and voluntariness of the suspect’s waiver. “

We claim that the Miranda rights are personal rights of the suspect.

As long as he is given the Miranda warnings which are required by this Court, then he in his own will should have the ability to waive those rights and he does not need the added advice of any third person, whether or not it be an attorney.

We would like to mention–

Thurgood Marshall:

You tell him in the Miranda that you will appoint a lawyer for him, don’t you?

Constance L. Messore:

–Yes, if he requests one.

Thurgood Marshall:

When?

Constance L. Messore:

Whenever he does, whenever he wants it.

Thurgood Marshall:

You’ll give him a lawyer right then, that day?

Constance L. Messore:

It says: Prior to questioning, if you should require a lawyer we will see that one is appointed for you.

Thurgood Marshall:

No, I mean when you first give him Miranda warnings, you will give him a lawyer if he wants one that day?

Constance L. Messore:

If he is to be interrogated.

The requirement of the lawyer–

Thurgood Marshall:

You don’t give him one until he’s being interrogated?

Constance L. Messore:

–That’s correct.

I believe that’s what Miranda requires.

Thurgood Marshall:

I don’t think interrogation was in Miranda at all.

Go ahead.

Constance L. Messore:

The serious impact we feel of the First Circuit’s ruling is the loss of the clearcut rules for reviewing the admissibility of statements.

John Paul Stevens:

Let me ask just one question on that point.

The First Circuit opinion cites several different state court opinions that generally take the same position.

There are differences in the facts of the cases.

Are there any states other than the Rhode Island Supreme Court that have taken the position that you advocate?

Constance L. Messore:

Two I believe I’m aware of.

One of them is Georgia and one is the state of Missouri.

We feel that the police are not equipped to make all of the decisions in the busy police station that would be required of them by the ruling of the First Circuit, and we feel that therefore the First Circuit has expanded the ruling of Miranda by requesting that the call of an attorney be put through to the suspect even though he has been warned and given his warnings and has said definitely that he does not want an attorney.

We would therefore ask this Court to please reverse the ruling of the First Circuit.

If there are no further questions, I’d like to reserve the remainder of my time for rebuttal.

Warren E. Burger:

Very well.

Warren E. Burger:

Mr. Frey.

Mr. Andrew L. Frey:

Mr. Chief Justice and may it please the Court:

I wasn’t planning to address the Sixth Amendment issue, but in response to your question let me just say that I think that what triggers the Sixth Amendment is the existence of a criminal prosecution, not the existence of an attorney-client relationship.

The Sixth Amendment I believe simply–

Sandra Day O’Connor:

Well, here we have an arrest and an interrogation and an attorney-client relationship.

Mr. Andrew L. Frey:

–Yes, and none of those things are enough to trigger the Sixth Amendment.

It no more addresses that issue than the Seventh Amendment does.

It simply… and I believe that the way Couveja dealt with Escobedo would establish that.

In Escobedo there was I think an existing attorney-client relationship, but my recollection is that Gouveia said that the criminal prosecution hadn’t begun for the Sixth Amendment.

That was a false start.

Let me say that when the relevant and well-established constitutional principles and policies are considered, the conclusion that the First Circuit erred in this case is logically inescapable.

First of all, the Court has said too many times to leave the issue in any doubt that there’s no constitutional policy against obtaining and using voluntary confessions.

Similarly, it has repeatedly said that the purpose of Miranda is to protect the Fifth Amendment privilege against compelled self-incrimination; that the requirement of warnings and waivers represents a means of ensuring that the elements of compulsion in the stationhouse interrogation have been satisfactorily counteracted.

Thirdly, the Court has made it perfectly clear that you do not need a lawyer to waive your rights to a lawyer or to waive your other Miranda rights.

In fact, the notion that Miranda creates a right to counsel is I think a fundamental misunderstanding of the parties on the other side of this case.

There is no direct constitutionally created right of an arrested suspect to the assistance of counsel.

Rather, the Miranda warnings tell him he has a right to counsel because it is believed important that he understand that he can have that kind of help so that we can have assurance that when he chooses to speak–

John Paul Stevens:

It’s important he understand he has a right even if he doesn’t have a right; that’s your point?

Mr. Andrew L. Frey:

–That’s correct, that’s correct.

I think the purpose is to ensure the voluntariness of his statement.

The purpose is to dispel what was found to be inherent coerciveness of custodial interrogation, and in that case it is a sort of white lie that seems to me quite harmless and in fact useful, considering the purposed of Miranda.

And the fact is that the police do not have to provide a lawyer if he asks for a lawyer.

They need simply terminate the interrogation.

They only need to provide a lawyer if they want to continue the interrogation.

So I think it’s quite clear that there is no Fifth Amendment right to counsel.

Byron R. White:

Or when they arraign him, or when the criminal prosecution is–

Mr. Andrew L. Frey:

When they arraign him.

Byron R. White:

–It’s really started when they start the prosecution.

Mr. Andrew L. Frey:

Yes, but that’s a Sixth Amendment right to counsel.

Exactly.

How about the lineup?

Mr. Andrew L. Frey:

They would not have had to provide him a lawyer at the lineup in this case under Kirby against Illinois.

It was Rhode Island policy to do so.

Now, the central constitutional–

Warren E. Burger:

Mr. Frey, were we not informed that a Rhode Island case holds that, or is it just a policy?

Mr. Andrew L. Frey:

–I don’t know the answer to that.

Warren E. Burger:

I thought there was reference to a case.

Mr. Andrew L. Frey:

I don’t think it would matter for your purposes.

The central constitutional issue in this case, therefore, has to be, in light of the settled principles that I’ve alluded to, whether Respondent’s decision to speak was coerced.

Now it’s logically impossible, I think, that the failure to tell him about attorney Munson’s phone call could bear on that inquiry.

Everybody agrees that he was given the warnings correctly and that he made what in all other respects is a voluntary waiver, knowing his rights.

John Paul Stevens:

Mr. Frey, you take the argument to it logically conclusion, as your associate does also, I take it, that this is true no matter how serious the deception by the police to the lawyer might he?

Mr. Andrew L. Frey:

I think that’s true, and I’m going to come to the deception point.

But I want to make this point because it seems to me a point of logic.

You just would have to say white is black to get around it, it seems to me.

If this was a perfectly good… if his state of mind was adequate to make a voluntary waiver of his rights, then some fact that occurred that he didn’t know anything about couldn’t have affected his state of mind.

Therefore, in terms of the voluntariness or the degree to which he may have been coerced, there simply is no possible effect of the failure to tell him.

Now, all of this seems so obvious that it is puzzling how the First Circuit and so many state courts could possibly have reached a contrary conclusion.

Sandra Day O’Connor:

Well, there is concern about police deception.

I mean, if you’re right it would he preferable for the police to say, as they have in some cases: We know you’re the attorney for Mr. Jones and we are in the process of interrogating him and you can’t see him.

Mr. Andrew L. Frey:

I agree that that would be, I believe, within their eights to say that to the attorney; and I think the issue of misleading a lawyer is a total red herring in this case, because there is not… as long as they have a right to say that–

If they have a right to say that?

Mr. Andrew L. Frey:

–As long as they have the right to say that, there is no casual connection between any deception.

This is not a case about lawyer’s rights; this is a case about the rights of Mr. Burbine.

This is not a case about etiquette.

We may condemn their deception, if indeed there was deception in this case.

The question is whether–

William H. Rehnquist:

Why would one condemn deception in reviewing a state proceeding unless there was something in the Constitution that prohibited it?

Mr. Andrew L. Frey:

–I absolutely, absolutely agree with that.

I think that what is not a red herring or what is more to the point in this case… and it’s a problem that has been discussed by this Court before… is whether knowing that a lawyer had called would affect his decision whether or not to invoke his rights.

Mr. Andrew L. Frey:

I think that is what is at the bottom of this, that he would be better informed and make a better advised decision if he knew that a lawyer had called.

Now, that is what I think explains the decisions and I think that is based on fallacy, and it’s precisely the issue that was the point of disagreement in United States against Washington in this Court.

What he needs to know in order to make a satisfactory waiver of his Fifth Amendment rights is his rights.

He does not need to know the facts that bear on a wise excercise of his rights.

Thurgood Marshall:

Are you going to include Escobedo in this?

Mr. Andrew L. Frey:

Well, I think Escobedo was a dead end and I think the Court has since made clear that–

Thurgood Marshall:

In Escobedo the lawyer was in the building trying to get to the man and they kept him from getting to him.

Wasn’t that Escobedo?

Mr. Andrew L. Frey:

–But Escobedo wanted to talk to his lawyer as well.

Thurgood Marshall:

That’s what I mean.

Mr. Andrew L. Frey:

Nobody is questioning that if the Respondent in this case wanted a lawyer they would not have been able to continue interrogating him without giving him a lawyer.

Thurgood Marshall:

Well, I thought he said he wanted one.

No.

Mr. Andrew L. Frey:

He did not say he wanted one.

He said he did not want one.

The argument is that if he had only known, if he had only known that this lawyer who he had never heard of has called, that might have affected his decision.

This is precisely the point that Justice Brennan made in his dissent in United States against Washington.

If he had known he was a target, he might have been better able to decide whether to speak or not to speak.

My point is simply that the Constitution doesn’t call for him making a wise decision.

John Paul Stevens:

Your argument is that even though that may be empirically true, it still doesn’t doesn’t make any difference as a matter of law, even if better advice might have caused him to make a different decision or better information?

That’s still too bad, because he had enough?

Mr. Andrew L. Frey:

I think the better advice would probably cause most suspects whose causes reach the appellate courts not to have spoken.

John Paul Stevens:

Which is precisely why the police don’t want them to talk to them.

Mr. Andrew L. Frey:

Well, and precisely why society wants to establish a set of rules that do not needlessly discourage them from talking.

John Paul Stevens:

Why society establishes a rule that if voluntarily, even if we know perfectly well he would have made a different decision if he’d been fully advised?

Mr. Andrew L. Frey:

Absolutely.

I think that clearly comes from this Court’s cases.

And I don’t see that there is very much room–

Byron R. White:

Well, it would seem to follow from the fact that you don’t need a lawyer to waive a lawyer.

Mr. Andrew L. Frey:

–That is of course one of the points that seems quite clear.

Mr. Andrew L. Frey:

You could have a different rule if the focus were on knowing, and this gives rise to all kinds of problems, because there are lots of things other than whether a lawyer has called that would be quite relevant to an intelligent decision of whether to speak to the police about the matter or not.

You might want to know what the punishment is for the offense.

You might want to know whether the victim has died or not.

You might want to know what the sentencing practices of the judges are.

You might want to know what kind of deal prosecutors are likely to make to people who confess.

There’s an endless list of things that may indeed have a bearing on making an intelligent decision whether or not to speak.

The focus of the Fifth Amendment voluntariness or coercion inquiry is precisely on knowing your rights.

If you know your rights, you choose not to exercise them, then you may be a fool, and I think in a case like this, where we have been able to convict somebody who has committed quite a serious crime, I think there is nothing wrong with that outcome.

And of course, this Court is not the Cranston, Rhode Island, police department, it’s not the Rhode Island legislature, and it’s not the United States Congress.

Now, any of them may elect as a matter of policy to adopt a rule that a call from a lawyer should be relayed in to the client.

I don’t think would be good policy–

Sandra Day O’Connor:

Well, there have been occasions in the past, I guess, when the Court has stepped in out of its concern about police deception under the rubric of due process.

And you don’t see that as being a source of any–

Mr. Andrew L. Frey:

–I think the focus is on deception of the party before the Court.

If there had been deception of Mr. Burbine… and I’d like to say, because in Miller against Fenton, the New Jersey confession case, you asked a question about whether deception would be condoned there, and I think my answer would have been a little different from the answer of counsel.

I don’t think deception is condoned in procuring a waiver, deception of the suspect.

Deception of the lawyer–

John Paul Stevens:

–You say the Miranda warning itself is a lie.

He tells him he’s got a right he doesn’t have.

The whole thing is a charade.

Mr. Andrew L. Frey:

–No, the whole thing is not a charade.

The whole thing is something that the Court has designed for a particular purpose and that the Court has concluded and I assume experience has shown, since the Court has adhered to it, is effective for accomplishing that purpose.

It’s not a charade.

Just because you tell him he has a right to a lawyer–

John Paul Stevens:

How many cases have we seen in which, after saying you can have a lawyer right away and he says I’d like a lawyer, how often does he get the lawyer right away?

They just don’t question him.

They never provide him a lawyer.

Mr. Andrew L. Frey:

–I’m not sure how that would come up, because once he’s given the lawyer, which I assume he may often be given, or he may not… once he’s given the lawyer, there’s no confession.

Warren E. Burger:

Your time has expired, counsel.

Mr. Andrew L. Frey:

Thank you.

Warren E. Burger:

Mr. Mann.

Robert B. Mann:

Mr. Chief Justice and may it please the Court:

In this case, Brian Burbine’s lawyer, Allegra Munson, called the Cranston police station.

She indicated that she was counsel, and we’ve had a concession that there was an attorney-client relationship.

She said that she would make herself available if Burbine was going to be put in the lineup or questioned.

And she was told that he was not going to be questioned.

Based on that explicit representation that they were through with Brian Burbine for the night, she took no further action.

What the state and what the Government seek to do in this case is erect an iron curtain between the client and his or her attorney.

I think it’s–

Sandra Day O’Connor:

Well now, Mr. Mann, would this case be different in your view if the police, instead of being deceptive, if they were here… I’m not sure, but if they were… if they had just said, we’re talking to Mr. Burbine right now and you can’t see him?

Robert B. Mann:

–Well, I think the attorney… yes, it would be different.

I think the attorney would have had a number of responses she could have made.

She indicates explicitly on–

Sandra Day O’Connor:

What could she have done and what right, if any, would be violated, and why?

Robert B. Mann:

–What could she have done?

Yes.

Robert B. Mann:

If she… I think the first thing she could have done was she could have asked the police to put her through and allow her to speak with her client.

It would seem anomalous–

Sandra Day O’Connor:

And they said no, we’re talking to him now, you cannot see him.

Robert B. Mann:

–The next step she probably would have taken is she probably would have called up the prosecuting attorney for that municipality and said, I’m being denied access to my client.

That is in fact what happened to me about two months ago in a case in Rhode Island.

I called the city solicitor and said: A lawyer is being denied access to the client; can we do something about this or do we have to go call up a judge?

And within 20 minutes the police were allowing the lawyer access to the client.

So that’s the first step.

She would have called up the prosecuting agency.

And this was about 8:00 o’clock–

Sandra Day O’Connor:

Was that a matter of prosecutorial grace, so to speak, or was it compelled by some constitutional provision?

Robert B. Mann:

–I think it’s more than prosecutorial discretion.

I think it is compelled by some constitutional consideration.

Sandra Day O’Connor:

What?

Robert B. Mann:

I think it’s the right… I think it’s two rights, I think it’s at least the right of the client to be informed of their attorney’s availability.

That’s not an attorney’s–

Sandra Day O’Connor:

And you find that under what clause, what provision of the Constitution?

Robert B. Mann:

–I concede I can’t find a case that explicitly says that.

I obviously can start with Escobedo, that talks about the right of an attorney’s access to a client.

I recognize that it’s been limited.

Who asked for him.

Robert B. Mann:

I recognize that that’s a significant difference.

But it seems to me that in a sense, no, I don’t have a case that I can point you to, and I don’t think there is one, that says an attorney has a right of access to their client, at least not pre-commencement of judicial proceedings.

But yet it seems to me that that is so axiomatic to the whole process under which we operate that to say that there is not even a right of the client to be informed of the client’s attorney… and we’ve agreed that this is the client’s attorney… of that attorney’s availability would so fundamentally change the structure of things that it would really change the way we operate.

It would say that once we get a client into the police station, they can close the door and that’s it, and unless the client calls and says I want to speak to my lawyer or specifically calls that lawyer, there’s no access at all to the client.

Byron R. White:

I guess you think also that the remedy for this breach of right is to hold that his confession is involuntary?

Robert B. Mann:

Yes, I do.

But I don’t think it’s just because… I think that the reason the First Circuit found that it was involuntary was all the factors that went into considering what the circumstances were when he made his confession.

Byron R. White:

Well, that’s usually the test: In the totality of the circumstances, is it voluntary?

And you say that’s a determinative fact?

Robert B. Mann:

No, I do not contend it is a determinative fact.

I contend it is a very significant fact.

I disagree with the characterization of the First Circuit opinion that it was only because of the failure to tell the client about the attorney’s call.

They took into consideration a number of factors when they made their decision that the waiver was not knowing, voluntary, and intelligent.

They certainly focused on the consequences of failing to inform Burbine of the client’s… of the attorney’s call.

Warren E. Burger:

How many times did he waive and how many times did he confess here?

Robert B. Mann:

He confessed three times.

He waived three times.

The first time… and plus, there’s a fourth time when he was allegedly informed orally of his rights.

They didn’t get a signed waiver.

I understand that’s not critical to the question.

And–

then he informed them of his name and his address.

That of course raises, I suppose, the question of whether or not the state might have made an argument that’s never been made except in one footnote by the Solicitor General, that maybe some of the… two arguments.

Robert B. Mann:

One is that maybe he volunteered statements; or secondly, that maybe some of the subsequent confessions might have been admissible even if the first one or two weren’t.

But those are arguments that have not been made, I would suggest.

I think you go to the question of was the waiver voluntary and you have to look at the full set of circumstances.

And I’d like to at least illuminate some of the facts that I think are critical to this question.

When Burbine was arrested, he was brought into the police station, booked, processed, and not put in a cell block.

He was brought up to an interrogation room, and the clear but nonverbal communication of that was: You’re going to be interrogated.

He was put in that interrogation room until the detective went in and started questioning him.

The detective went in, asked him a question about his name and where he lived.

He says he gave him his Miranda rights, but didn’t bother getting a written waiver.

At that point the detective leaves.

Burbine is still kept in the interrogation room.

Where… at that point, since you emphasize that, where do you think they should have put him?

Robert B. Mann:

In the cell block area.

They had… it’s their discretion where to put him, Your Honor.

But what I think does become important when one considers all of the circumstances in this case–

Warren E. Burger:

Well, if an interrogation room is theoretically forbidding, isn’t a cell block a little more forbidding?

Robert B. Mann:

–But a cell block has the connotation, if you’re put in a cell block, I think to the prisoner, we’re done with you.

If you’re put in one of these interrogation rooms… and the record is clear that–

Warren E. Burger:

You mean that’s generally known in the community?

Robert B. Mann:

–I think to an inmate… I think–

Warren E. Burger:

To lawyers or to laymen?

Robert B. Mann:

–I think to the person who’s arrested, Your Honor, who’s put in a cell block… who is put in an interrogation room right off the main room where the detectives are working, the perception is, I’m going to be questioned.

The perception if you’re thrown in the tank, so to speak, is different.

It’s not… it’s only one factor, I would agree with you, and it’s only one factor in all of the factors that I think have to be considered in terms of determining whether or not under the totality of the circumstances this was a knowing, voluntary, and intelligent waiver.

After the first set of questions, he is put back in, he is put back into the interrogation room.

It’s after that first set of questions at about 4:30 or 5:00, some time after that, that the Providence police are contacted.

Then around 7:30, around 8:00 o’clock, the lawyer makes her phone call.

Still never telling the client about the telephone call.

About an hour later, while he’s still in that interrogation room… and I think at that point it’s around 9:00 o’clock… and the message begins to get clear that they’re pushing this guy Burbine on something.

He’s still in tbe interrogation room.

Robert B. Mann:

They go in and they question him.

Warren E. Burger:

What if that call had come from a stranger instead of from his sister?

Any difference?

Robert B. Mann:

No, because there was an established attorney-client relationship.

It would have been different if there had not been an established attorney-client relationship, and there could be a number of factors–

Warren E. Burger:

A total stranger hearing about the circumstances could establish an attorney-client relationship between the–

Robert B. Mann:

–No, I don’t say that at all.

But in this case, the call was… in this case, there were two factors the First Circuit considered in concluding that there was an established attorney-client relationship.

One was that it was a family member that had called and ask this specific attorney or asked this office to become engaged in representing her brother.

And there are lots of the state court opinions that have discussed this issue that have held that it’s appropriate for a family member to retain counsel.

The second factor that the First Circuit considered was that there was an ongoing relationship between this office and this client.

Warren E. Burger:

–Do you think it’s open to the First Circuit to make a de novo determination of voluntariness?

Robert B. Mann:

I think it’s mixed question of law and fact and I think that my understanding of the habeas cases is that that’s a question that still is deserving of plenary review by this Court.

I understand Miller versus Fenton raises that issue before this Court.

Thurgood Marshall:

Is it true that he never asked for a lawyer?

Robert B. Mann:

It’s true there’s nothing in the record that indicates that he ever did anything except maybe mumble that he wanted one and that wasn’t… his testimony was discredited, Your Honor.

So there is nothing in the record to indicate that he wanted a lawyer, and in fact the testimony even with respect to the lineup question is that he said he didn’t want a lawyer.

I might briefly respond to a question that was asked earlier.

I think the reason for the question about the lawyer at the lineup was the question, the issue was still unsettled under Rhode Island constitutional law, and it was finally resolved in manner similar to Kirby in a case called State versus Delahunt.

But that I think explains that.

Sandra Day O’Connor:

Mr. Mann, could we go back for a minute to the fact that the state court made an express determination that there was no attorney-client relationship established.

Now, the Court of Appeals for the federal review altered that finding.

Was that finding a finding of fact or a finding to which the federal court should have deferred?

Robert B. Mann:

I don’t believe it was an historical finding of fact to which Sumner versus Mata deferral is required, first of all.

I think certainly the historical facts are that the sister–

Sandra Day O’Connor:

It just seemed to me that it’s kind of your classic case of a factual determination.

Was there an attorney-client relationship?

Robert B. Mann:

–Secondly, what… I think that I would certainly argue that it is a legal question whether or not there was an attorney-client relationship.

I would also point out that the Rhode Island Supreme Court decision was a 2-1-2 decision, and it was a concurring opinion with the majority opinion that talked about the history of the Public Defender’s Act and from that concluded that this attorney didn’t have authority to represent Burbine.

But I would submit that that position that there was not an attorney-client relationship has, as Mrs. Messore has conceded, not been argued all the way through.

Robert B. Mann:

I think it was appropriate, and I think there clearly… if one looks at the face, there clearly was enough, certainly compared to the other state court cases, and they’ve all found an attorney–

Sandra Day O’Connor:

Well, even if it was a question of state law, why wouldn’t the federal court defer to that?

It just struck me as very strange that the federal court would take upon itself the right to overturn that.

Robert B. Mann:

–I don’t think… I don’t think it was a question of state law whether or not there was an attorney-client relationship with respect to representing this client in a criminal case.

It was a question of state law whether or not it was appropriate for the public defender’s office to initiate action at that stage.

In fact, one of the justices in dissent found that the attorney was acting in a private capacity.

Whether the attorney was acting privately or publicly… and I think you’ve emphasized in your cases that you’re not going to draw a distinction between public defender attorneys and private attorneys.

There is a federal Constitutional question of whether or not this attorney… whether or not this client has a right to counsel and whether or not that attorney-client relationship had been created, and I would submit that that is not a question of state law.

William H. Rehnquist:

Supposing an attorney comes into state court and sues a client that he’s represented in a criminal case in federal court, saying you promised me 10,000 lucks for defending you, you’ve never paid it.

Is the relationship governed by federal law, whether… the nature of an attorney relationship, just because the suit took place in federal court?

Robert B. Mann:

No, no.

And I didn’t mean to argue that if I did.

What I think I would argue is that whether or not Munson was acting as his attorney, as Burbine’s attorney for Fifth and Sixth Amendment purposes, that there was no question of her right at that point, and that it’s a federal question whether or not she was acting to protect his federal rights at that point.

William H. Rehnquist:

Well, is that any different than saying it’s a federal question whether or not there was an attorney-client relationship created?

Robert B. Mann:

I think that is a federal question, at least in the context of an interrogation of a defendant in a stationhouse in a criminal case.

Lewis F. Powell, Jr.:

Mr. Mann, may I put a hypothetical, lets assume that a public defender office had enough lawyers so that it was able to call the police department in a city of modest size and say: We have enough lawyers to provide counsel in every felony case, and we put you on notice now that we want to be advised whenever you arrest a person charged with a felony, and we will send a lawyer promptly to represent him.

Would that be different from your case?

Robert B. Mann:

Very different.

Lewis F. Powell, Jr.:

In what respect?

Robert B. Mann:

First, I don’t think the right… independent of the Sixth Amendment right to counsel, which I hope to address, the Fifth Amendment right doesn’t attach until custodial interrogation begins.

In that case, the attorney is attempting to–

Lewis F. Powell, Jr.:

Had it begun in this case?

It was about to begin, but it hadn’t begun.

Robert B. Mann:

–Well, but had the attorney been told it was going to begin, then the attorney said she would have acted differently.

And they said, we’re through with Burbine for the night.

I think that the question–

Lewis F. Powell, Jr.:

In my case the only difference is, instead of a sister saying that she had engaged a particular lawyer who wanted to be present for the interrogation, the public defender’ soft ice said, we’ll provide a competent lawyer to represent every felon and we put you on notice we want our lawyer to be present before any interrogation begins.

Robert B. Mann:

–But I think that’s different for another reason, too.

The public defender’s office in that case has no right to say that about people who are about to be arrested.

They have no more right than a private lawyer to solicit clients who are in the future going to commit a crime.

Robert B. Mann:

And in this case, it was a situation in which there was this existing relationship and the client had already been–

Lewis F. Powell, Jr.:

Suppose a friend had called instead of a sister.

Would that make a difference?

Robert B. Mann:

–It wouldn’t in this case, but I admit it gets closer.

It wouldn’t in this case because of the fact that this office also had this prior relationship with Burbine.

And you add those two factors together and you have an ongoing relationship.

I think it wouldn’t if it were a friend that called in this case.

Thurgood Marshall:

I don’t see that it matters at all, because you don’t know who they talked to.

They might have talked to the third janitor.

Robert B. Mann:

I’m sorry?

Who might have talked?

Thurgood Marshall:

When they called the police station, who did they talk to?

They talked to a man who said “detectives”.

They don’t know who they talked to.

Until today we don’t know who they talked to.

Robert B. Mann:

No, the record is barren on that point, sir.

Thurgood Marshall:

So what difference does it make who called?

Robert B. Mann:

Who calls the lawyer in the first instance?

Yes.

Robert B. Mann:

Oh, I don’t think it’s the province of the police to inquire as to how an attorney-client relationship is established, and certainly how attorney-client relationships are established, at least in those first few hours after arrest, are varied and not with written retainer agreements.

Thurgood Marshall:

There’s nothing in this case that applies to this party, because you don’t know who it went to.

I would assume that you have to put this information in the hands of the detectives who were questioning him.

You don’t even get close to that.

Am I right?

Robert B. Mann:

Maybe I didn’t understand your question.

Thurgood Marshall:

This call that was made advising the “police department” that he had a lawyer, right?

Robert B. Mann:

Yes, sir.

Thurgood Marshall:

Well, who was given that information?

You don’t know.

Robert B. Mann:

Well, the testimony, sir, was that she called, got the police station, asked for detectives, there was a switching sound, somebody picked up on the phone and the answer was “detectives”.

Thurgood Marshall:

And who was the somebody?

Robert B. Mann:

Well, that’s the gap in the–

Thurgood Marshall:

We don’t know until today.

So how can we hold anybody responsible for it?

Robert B. Mann:

–Well, I would argue that that became a question factfinding.

The trial justice made a finding of fact that the telephone call had been made.

The state argued very strongly throughout the suppression hearing that the telephone call by the attorney had not been made, that… to believe the three police officers.

The state in rebuttal in the supression hearing put on the senior police officer at the suppression hearing to establish that the call could not have been made.

And the state’s argument was, stripped of nice words, that the attorney was lying.

And the trial justice didn’t accept that argument, and the trial justice accepted the fact… and I think that that’s a finding of fact that is now controlling in the case… that the call was made.

To whom?

Robert B. Mann:

The trial justice does not say explicitly in his relatively short opinion that it was made to the detective division, but–

Thurgood Marshall:

Does anybody else say to whom?

Robert B. Mann:

–No, there’s no plate in the record.

Thurgood Marshall:

We don’t know whom is yet, do we?

Robert B. Mann:

No, sir.

Byron R. White:

Well, if that’s a finding of fact, why isn’t the state court’s finding of fact… why isn’t it a finding of fact that there wasn’t an attorney-client relationship at all?

Robert B. Mann:

Well, first I would argue that the question of whether… that whether or not there’s an attorney-client relationship is not the same kind of historical fact that mandates–

Byron R. White:

Well, is it a historical fact or is that a judgment about the law?

Robert B. Mann:

–I think it’s at least a mixed question of law and fact.

It is at least, it seems to me… we have the historical facts on which we can make that decision.

We know that the call was made by the sister, that attorney one called attorney two, that Munson called the police station, that there was a prior relationship.

Based on those facts, it seems to me it’s at least a mixed question of law and fact whether or not there was an attorney-client relationship.

Warren E. Burger:

Suppose, instead of the facts you just recited, the policeman came into Burbine and said: There are five lawyers out here that would like to represent you; do you want one of them.

Could that establish an attorney-client relationship, unless he said, yes, send in the oldest one?

Robert B. Mann:

No.

Burbine has the absolute right to say he doesn’t want a lawyer.

We’ve never argued for the New York rule–

Warren E. Burger:

That’s what he did say, didn’t he?

Robert B. Mann:

–But he was never informed of his lawyer’s call, and I think that the question is how important is that piece of information and does it matter?

Robert B. Mann:

And I think, for example, that certainly when the police are dealing with a client alone… and I’m obviously referring to a footnote by Justice White, where you have discussed, sir, that when the police are dealing with an individual unrepresented by counsel, there’s a greater obligation to inform the client, to keep the client abreast of what’s taking place.

The question is would this have mattered in this context, when you consider all of the factors that existed that night?

I should… in discussing whether or not was voluntary, there are certain other facts that I’d like to bring out.

There has not been much discussion of Burbine’s condition when he finally made the confession.

He basically broke down.

What happened was that he was clearly, by the state’s own testimony, the state’s witnesses, he was very nervous, he was shaking, he was tearful.

This was a man clearly on the edge, and the question is would it have made a difference to have told him this?

This was a person who didn’t confess until about 9:20 in the evening after having been held in one of these interrogation rooms from about 3:00 o’clock on.

This is different, it seems to me, than the situation in Mosley, where you had the client being questioned about a separate crime in a separate location by different officers.

Here you had the client kept in the same interrogation room, questioned by the same officers or officers working in tandem, about the same crime, time after time, never yet, never once telling him about his attorney’s call.

I think the First Circuit opinion addresses clearly what the effects of the call would have been on Burbine.

It wouldn’t have just told him that there was an attorney available.

It would have told him that he wasn’t isolated.

It would have communicated to him, albeit indirectly, that his family was with him.

It would have told him that the police were saying one thing to an attorney and another thing to him, and that was that–

Byron R. White:

You would think if this were really the case there would be some voluntariness cases before Miranda, and there were a whole lot of them about lawyers, weren’t there?

Robert B. Mann:

–Yes, sir, there were.

Byron R. White:

Have you got any case from that era that supports your position?

Robert B. Mann:

No, I don’t, I think, other than to some extent Escobedo.

Byron R. White:

Yes.

Mr. Mann, did I understand you to say that Burbine was put under intensive pressure by the police?

Robert B. Mann:

I think the effect was to place incredible pressure on him, yes, sir.

And I think it’s not tantamount, I would agree, to the kind of factual situation that existed in Miller versus Fenton.

He didn’t collapse out of unconsciousness.

On the other hand, he broke down.

He was crying.

He was… this is their own, the police description of him.

He was shaking.

He was very nervous.

I think he was kept in this interrogation room for about six hours.

Lewis F. Powell, Jr.:

Am I reading the right place?

I think it’s the district court opinion that says that:

“There is no suggestion here of political… of police brutality or of coercion, psychological duress, illicit inducement, intimidation, or the like. “

“Burbine was not grilled for long stretches of time, nor in an unusually oppressive circumstance. “

It’s on appellate 37… appendix page 37.

Robert B. Mann:

I don’t have any quarrel with that characterization.

I think the question is, at the time when he finally broke and gave his first confession about 9:20 at night, what was the cumulative effect of the events that had transpired?

And it was not a grilling.

The first questioning was very short.

The second questioning was very short.

But the cumulative effect, I would suggest, was significant.

Even the United States Government has suggested in its brief, I think, that, in footnote 16, that they suggested that maybe it makes sense to keep successive police officers more informed when a person invokes their right to silence and maybe the effect of not… of successive questioning on the client may undermine the effectiveness of a right, of an invocation of the right to silence.

Here Burbine had refused to cooperate with the police on two prior occasions.

He had totally denied involvement.

Warren E. Burger:

Two prior occasions, what were those?

You mean on another?

Robert B. Mann:

No, on this case, on this case.

At 4:30 to 5:00, he didn’t even sign the waiver of rights form that was supposedly read to him.

At about 9:00 o’clock, he signs the waiver of rights form, denies his involvement.

And then he comes, then a third time finally he comes around.

I would like to briefly address the Sixth Amendment argument or Sixth Amendment question that has been raised, if I could.

If you accept that there was an attorney-client relationship in this case, I think as I understand Gouveia what it stands for is that there is not a right to appointed counsel before the commencement of formal judicial proceedings.

But in fact one of the points made in Gouveia was that the prisoners had access to counsel, that they had the ability to communicate with counsel.

And I would read implicit in that the fact that you could create an attorney-client relationship before the commencement of formal proceedings.

Whether or not you have a right to appointed counsel is a separate question and that’s not the issue here.

It seems to me that clearly criminal defendants or targets of criminal investigations routinely establish attorney-client relationships long before the commencement of attorney-client relationships.

Certainly that’s true in almost any white collar case, almost any federal prosecution.

The negotiations with the U.S. Attorney’s Office commence long before the initiation of formal charges.

Warren E. Burger:

Well, what’s that got to do with this kind of a case?

Robert B. Mann:

Well, I think the question… we have also argued–

Warren E. Burger:

The fact that a big corporation may have 40 lawyers in their legal staff, of course they’re getting legal advice all the time… but what’s that got to do with this kind of a case?

Robert B. Mann:

–It has this, I think it has this to do.

The question is this: Does Burbine also have a Sixth Amendment right to counsel?

And we’ve argued that he does.

And could that right attach even though formal judicial proceedings had not been commenced other than the arrest of Burbine?

And if it did attach… and we argue that it does… then there was also, as we’ve argued in our brief, an interference with the Sixth Amendment right to counsel by denying him access, by denying his lawyer access to him at least to communicate with him.

Now, clearly Burbine continued to have the right to waive even his Sixth Amendment right to counsel without his lawyer being present.

We don’t quarrel with that.

But the reason I think it’s relevant is that we have also argued that he has a Sixth Amendment right to counsel independent of the right to counsel that he has because the custodial interrogation had commenced pursuant to, under Miranda.

Sandra Day O’Connor:

Do you think a waiver after being given Miranda rights would also constitute a waiver of any Sixth Amendment right he might have had?

Robert B. Mann:

I don’t think the standard would be the same, though oftentimes similar language has been used.

As I understood, the question is, certainly with respect to a Sixth Amendment violation, the Sixth Amendment waiver, there’d be a knowing, voluntary, and intelligent waiver.

With respect to the Fifth Amendment, the same thing.

With respect to violation of Miranda… of one of the rights generated by Miranda, I think Mr. Justice Blackmun has raised the question of whether or not the same standard would apply.

I would argue that certainly for a Sixth Amendment waiver you would need the Johnson versus Zerbst type of waiver.

Now, in this case we’ve argued all the way through that it didn’t exist, but if you had a waiver that was a Fifth Amendment at least in this case I don’t see the difference.

If you had a waiver that was only with respect to Miranda rights as opposed to the Fifth Amendment question, then I could see a difference and a higher standard question imposed with respect to the waiver of Sixth Amendment rights.

I think that there is a single point on which I’d like to conclude.

The state and the Solicitor General’s Office have both said that there is no limit, there is no limit or no effect to the endless deception that could be committed, and that’s an incredible comment, it seems to me.

Nowhere has the state, nowhere has the United States Government, ever suggested that there is any limit to the deception that could be visited either on the client or on the lawyer.

There was deception of the lawyer in this case, but there was at least also implicit deception to the client by not telling the client what was going on, by not telling the client about the attorney’s call.

Byron R. White:

All the assertion was that it wouldn’t violate either the Fifth or the Sixth Amendments, what they did.

They didn’t say that it was proper conduct, didn’t say that people who did that wouldn’t be subject to discipline.

Robert B. Mann:

But I think as an effective means of deterring that kind of deception you have traditionally used the deterrent, the exclusionary rule.

In Tucker you indicated, Michigan versus Tucker, I think you indicated that it would be applicable in Fifth Amendment as well as Fourth Amendment cases, even if it’s not applicable in good faith cases, in that case you indicated that at least in cases where the conduct rose to the level of negligence or something more culpable.

And in this case, the level was even beyond that.

It was either deliberate deception or reckless indifference.

And I would say to you that the only way to deter… not the only way.

Certainly there are civil rights lawsuits, there are others, disciplinary proceedings, as you suggested, sir.

But certainly one of the traditional ways and perhaps from Burbine’s perspective the only way that matters to deter that kind of behavior is to utilize the exclusionary rule.

Thurgood Marshall:

I don’t get it.

Outside of the fact that the police were questioning him, what other acts made it such a deception?

Robert B. Mann:

Well, the representation that they were not going to question him and the representation that they were through with him for the night.

Thurgood Marshall:

You mean if the police said, we’re through with you for the night, and then questioned you after that, that’s deception?

Robert B. Mann:

Absolutely, because the attorney relied on that.

The police were free to say, we can’t tell you what we’re going to do and we can’t make a decision.

Warren E. Burger:

Now on the Court’s time, not your time, would you tell me this.

This crime was committed more than eight years ago.

Robert B. Mann:

Yes, sir.

Warren E. Burger:

Where has this man been in the meantime?

Robert B. Mann:

Burbine has been incarcerated.

He was denied bail during the pendency of this proceeding and he is currently incarcerated in a maximum security facility.

Warren E. Burger:

Thank you.

Do you have anything further?

You have one minute left?

Constance L. Messore:

I have no further rebuttal.

Warren E. Burger:

Thank you, counsel.

The case is submitted.

The honorable court is now adjourned until Monday next at 10:00.