IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM 2012 NO AGAINST

IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM 2012 NO. 1-001 MARY BERGHUIS, WARDEN, Petitioner, AGAINST VAN CHESTER THOMPKINS, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BRIEF FOR RESPONDENT Name of Student Counsel for Respondent Box xxx, Cornell College Mt. Vernon, Iowa 52314 xxxxxxxxx@cornellcollege.edu 1

I. QUESTIONS PRESENTED I. Whether the use during trial of statements made during a custodial interrogation wherein the detainee did not explicitly waive his right to remain silent violates the Fifth Amendment, as applied to states through the Fourteenth Amendment. II. Whether the failure of counsel to properly instruct the jury with respect to consideration of impermissible evidence constitutes an ineffective assistance of counsel in violation of the Sixth Amendment, as applied to states through the Fourteenth Amendment. II. CONSTITUTIONAL PROVISIONS AND RULES The texts of the following constitutional provisions, relevant to the determination of the present case, are set forth in an appendix: The Fifth Amendment to the Constitution of the United States, the Sixth Amendment to the Constitution of the United States, and the Fourteenth Amendment to the Constitution of the United States. III. STATEMENT OF THE CASE On January 10, 2000, Samuel Morris (Morris) and Frederick France (France) drove into the parking lot of a strip mall. While driving through the parking lot, an exchange of words occurred between Morris and France and three men, Van Chester Thompkins (Thompkins), Eric Purifoy (Purifoy), and Myzell Woodward (Woodward). The three men passed Morris car and got into a van owned by Thompkins. As the van drove to exit the parking lot, it stopped next to Morris car, with the passenger side of the van directly next to the driver s side of the car. An argument ensued, which culminated in bullets being fired from a gun inside of Thompkins s van. Morris, sitting in the driver s seat of the car, was shot and killed. France was wounded, but he exited the vehicle and ran for help. Thompkins s van drove away. On February 19, 2001, Thompkins was arrested in Ohio for obstruction for fleeing the area when local police directed him to lie on the ground. Officer Parrish, a member of the local police, believed Thompkins to be the man wanted for the murder of Samuel Morris. The FBI agents present did not think Thompkins looked like the wanted poster. However, Office Parrish brought Thompkins in for questioning. Police Detective Helgert joined Officer Parrish in the interrogation of Respondent. Thompkins was read the Miranda rights and orally confirmed his understanding of those rights but refused to sign a paper acknowledging that he had been read those rights. Parrish and Helgert questioned Thompkins for three hours. Thompkins sought to suppress the statements he made during the interrogation, claiming he did not waive his right to remain silent. The motion was denied, and Helgert was allowed to testify as to what was said during the questioning. According to Helgert s testimony during trial, Thompkins was uncommunicative and silent. When asked if Thompkins had consistently exercised the right to remain silent, Helgert answered affirmatively. Approximately two hours and 2

forty-five minutes into the interrogation, Helgert asked Thompkins if he prayed to God. During his testimony, Helgert stated that upon hearing that question, Thompkins demeanor changed, and he answered the question with a yes. Helgert then asked, Do you pray to God to forgive you for shooting that boy down? Helgert testified that Thompkins answered affirmatively and looked down. After the religious questions, the interrogation was brought to a close. Thompkins refused to put anything into writing or sign any piece of paper. As a witness to the crime, Purifoy provided testimony during the trial. He had previously been charged with the January 10 murder, but was acquitted of murder and convicted of aiding and abetting the crime and of weapons charges stemming from the incident. Purifoy claimed that he was the driver of the van, and that Thompkins was the one who shot Morris from the passenger seat. Thompkins defense rested on the assertion that Purifoy had been the shooter. As Purifoy was introduced as a witness, the prosecution established his position in the case by informing the jury of his conviction, as well as the fact that he was acquitted of the murder charge against him. The trial court convicted Thompkins of murder. Thompkins appealed, claiming that the statements from his interrogation were inadmissible under Miranda. Thompkins also asserted an ineffective-assistance-of-counsel claim because his attorney failed to ensure that the jury was properly instructed with respect to information about Purifoy s conviction. The Michigan state court of appeals affirmed the ruling of the trial court, as did the Federal Court of the Eastern District of Michigan. The United States Court of Appeals for the Sixth Circuit reversed. IV. OUTLINE OF THE ARGUMENT I. THE FIFTH AMENDMENT REQUIRES EXCLUSION FROM TRIAL OF STATEMENTS MADE BY DETAINEES DURING CUSTODIAL INTERROGATION WHEREIN POLICE HAVE NOT SECURED A VALID WAIVER OF THE RIGHT TO REMAIN SILENT A. THE SUPREME COURT HAS HISTORICALLY HELD THAT INVOLUNTARY CONFESSIONS VIOLATE THE FIFTH AMENDMENT B. THE FRAMEWORK PUT FORTH UNDER MIRANDA REQUIRES A STATEMENT OF FIFTH AMENDMENT RIGHTS OF THE ACCUSED AND AN UNAMBIGUOUS WAIVER OF THE RIGHTS TO COUNSEL AND TO REMAIN SILENT C. THE COURT HAS FURTHER CLARIFIED WHAT CONSTITUTES A VALID WAIVER OF THE RIGHT TO REMAIN SILENT D. THIS COURT SHOULD AFFIRM THE LOWER COURT S CONCLUSION THAT IN APPLYING PRECEDENT CASE LAW, THOMPKINS ACTIONS 3

DID NOT CONSTITUTE A VALID WAIVER OF HIS RIGHT TO REMAIN SILENT II. THE FAILURE OF THOMPKINS COUNSEL TO REQUEST A LIMITING INSTRUCTION CONSTITUTES A VALID INEFFECTIVE-ASSISTANCE-OF- COUNSEL CLAIM A. THIS COURT HELD THAT THE SIXTH AMENDMENT S RIGHT TO COUNSEL CLAUSE, APPLIED TO THE STATES THROUGH THE FOURTEENTH AMENDMENT, EXTENDS TO ALL DEFENDANTS IN A CRIMINAL TRIAL B. THIS COURT ESTABLISHED IN STRICKLAND V. WASHINGTON A TEST WITH WHICH TO JUDGE INEFFECTIVE-ASSISTANCE OF-COUNSEL CLAIMS 1. The defendant must show that counsel s performance was deficient. 2. The defendant must show that the deficient performance prejudiced the defense. C. THIS COURT SHOULD UPHOLD THE CIRCUIT COURT OF APPEAL APPLICATION OF THE STRICKLAND TEST, WHICH AFFIRMED THOMPKINS INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM 1. The failure of Thompkins counsel to request a limiting instruction with respect to Purifoy s testimony constitutes a deficient performance 2. The deficient performance of Thompkins counsel prejudiced the defense V. ARGUMENT I. THE FIFTH AMENDMENT REQUIRES EXCLUSION FROM TRIAL OF STATEMENTS MADE BY DETAINEES DURING CUSTODIAL INTERROGATION WHEREIN POLICE HAVE NOT SECURED A VALID WAIVER OF THE RIGHT TO REMAIN SILENT This Court has held the Fifth Amendment to protect the right to remain silent during custodial interrogations as an extension of the protection against self-incrimination. In Miranda v. Arizona, the Supreme Court put forth prophylactic measures to ensure that each suspect detained for an interrogation is aware of the rights afforded to him or her under the Fifth Amendment. In applying these protections to Thompkins, it is apparent that statements made during his interrogation were inadmissible. A. THE SUPREME COURT HAS HISTORICALLY HELD THAT INVOLUNTARY CONFESSIONS VIOLATE THE FIFTH AMENDMENT The Supreme Court first held in Bram v. United States, that involuntary confessions were inadmissible in a court of law. In the opinion of the Court, Justice White traced the 4

historical route of the Fifth Amendment. He explained that the adoption of the Fifth Amendment self-incrimination provision was a safeguard against brutal and inquisitorial methods of interrogation. While still upholding voluntary confessions as ideal evidence, confessions as a result of torture were unacceptable and inadmissible. The Court concluded that, In the case before us, we find that an influence was exerted, and, as any doubt as to whether the confession was voluntary must be determined in favor of the accused, we cannot escape the conclusion that error was committed by the trial court in admitting the confession under the circumstances disclosed by the record. Bram v. United States, 168 U.S. 532 (1897), at 168. The Supreme Court continued to uphold the right against self-incrimination, extending it to encompass the right to remain silent during interrogation. The Court took steps toward applying the Fifth Amendment guarantee to state governments in the early twentieth century. In 1936, the Supreme Court held that the Fourteenth Amendment s due process clause requires the impermissibility of involuntary confessions as evidence in a court of law. Brown v. Mississippi, 297 U.S. 278 (1936). Full application of the Fifth Amendment s self-incrimination clause to the states through the Fourteenth Amendment came almost thirty years later in Malloy v. Hogan. In Malloy, the petitioner was detained in prison after he refused to testify about illegal activities. The Court s majority held that the Fifth Amendment right against self-incrimination restricted state courts from compelling confessions and testimony. Malloy v. Hogan, 378 U.S. 1 (1964). Furthermore, the Supreme Court invalidated police interrogation strategies that utilized physical or psychological force. Brown v. Mississippi established that the use of physical force in questioning suspects was contrary to the meaning of due process. Brown v. Mississippi, 297 U.S. 278 (1936). Over twenty years after Brown, the Court held that the use of psychological coercion in the case of Spano v. New York, violated the rights of the suspect. Spano v. New York, 360 U.S. 315 (1959). Here, the Court concluded that the use of leading questions, prolonged interrogation, persistent inquiries after request of counsel, and the use of a close friend violated the Fifth Amendment s protections. The Court would later expand upon the issues with police brutality psychological coercion in Miranda v. Arizona. B. THE FRAMEWORK PUT FORTH UNDER MIRANDA REQUIRES A STATEMENT OF FIFTH AMENDMENT RIGHTS OF THE ACCUSED AND AN UMABIGUOUS WAIVER OF THE RIGHTS TO COUNSEL AND TO REMAIN SILENT In Miranda v. Arizona, the Supreme Court held that to further protect the Fifth Amendment rights of the accused, prophylactic measures on behalf of the police must be taken. The Court declared that persons in custody must be made aware of the rights afforded to them by the Constitution, namely the right to remain silent and the right to counsel. Additionally, Chief Justice Warren, writing for the Court, declared that if the detainee either requests counsel or invokes his or her right to remain silent, the questioning must be stopped. The Court made it clear that interrogations may be stopped at any time, and the detainee retains the right to refuse to answer throughout the duration of the questioning. Miranda v. Arizona, 384 U.S. 436 (1966). 5

In reaching its decision, the Supreme Court weighed the interests of the state in preserving its ability employ proper police powers against the rights of the accused in our criminal justice system. Finding evidence of widespread police brutality in custodial interrogations, the Court asserted that, It is not sufficient to do justice by obtaining a proper result by irregular or improper means. Id., at 447. The Court held that the rights of the accused in being provided constitutional protections outweighed the gain of forced confessions resulting from the third degree. Chief Justice Warren reaffirmed the protection against self-incrimination with respect to the interrogation proceedings. The Court s majority asserted that the Fifth Amendment privilege is not only applicable to actions outside of the courtroom, but that it is essential to protecting the freedom of the accused. Id., at 467. To safeguard this right, the Court put forth the following protocol: If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. Id., at 474. Furthermore, the majority asserted that, a valid waiver will not be presumed simply from the silence of the accused after warnings are given, or simply from the fact that a confession was, in fact, eventually obtained. Id., at 475. The Court posited that an admission at the end of prolonged silence on the part of the detainee is consistent with the concept of forceful and compelling influence of the interrogators. A valid waiver, coupled with the suggested warnings, constitutes the requirements for the admissibility of statements made by a detainee. C. THE COURT HAS FURTHER CLARIFIED WHAT CONSTITUTES A VALID WAIVER OF THE RIGHT TO REMAIN SILENT Post-Miranda, the Supreme Court has clarified what is necessary for a police officer to assume that a valid waiver of Fifth Amendment rights has been secured during custodial hearings. In North Carolina v. Butler, the Supreme Court held that the courts must presume that a detainee did not waive his rights, which puts the burden on the prosecution to show validity. North Carolina v. Butler, 441 U.S. 369, (1979). The Court furthered its explanation of the necessary components to a valid waiver in Edwards v. Arizona. The Court put forth a two-pronged test to adjudge whether or not a valid waiver had been obtained. First, the detainee must have voluntarily waived his or her rights. Second, the detainee must have made the decision to waive his or her rights intelligently. These Court held that these two factors must be present when deciding the admissibility of confessions with questionable validity of the waiver of Fifth Amendment rights of silence and counsel. Edwards v. Arizona, 451 U.S 477 (1981). The Supreme Court reaffirmed the necessity of the second prong in 2000, when it struck down a Congressional act that defined the test for waiver validity as only needing a voluntary confession. Dickerson v. United States, 530 U.S. 428, (2000). The Court has held in several cases that ambiguous waivers could be valid when considering the circumstances of each situation. Before the bright-line rule set for in Edwards v. Arizona, the Court found that the defendant in North Carolina v. Butler had, in fact, waived his rights. In that case, the police had read the suspect his rights. He acknowledged orally that he understood his rights, but he refused to sign the consent form. The detainee stated that he would speak with the officers and answer questions, but that he would not sign any paper. The Court held that the continual conversation, during 6

which the suspect made incriminating statements, was not negated by the refusal to sign the waiver. North Carolina v. Butler, 441 U.S. 369, (1979). The Supreme Court affirmed this formulation of a valid waiver in Connecticut v. Barrett. The suspect again refused to sign anything, yet he was willing and open with oral testimony. He qualified his invocation of right to counsel by stating that he would not sign anything without his lawyer. However, he freely admitted his crimes to the officers during the interrogation. The Court found that because the Miranda rights had been read and understood, the oral confession was admissible. Connecticut v. Barrett, 479 U.S. 523 (1987). D. THIS COURT SHOULD AFFIRME THE LOWER COURT S CONCLUSION THAT IN APPLYING PRECEDENT CASE LAW, THOMPKINS ACTIONS DID NOT CONSTITUTE A VALID WAIVER OF HIS RIGHT TO REMAIN SILENT In Miranda v. Arizona, the Court set forth the framework under which custodial interrogations should take place. The majority pointed out that mere silence or the eventual obtaining of an admission does not constitute a valid waiver. In the present case, Thompkins actions conform to that statement. Not only did Thompkins exercise his right to silence throughout the first two hours and forty-five minutes of the questioning, but his admission at the end of a three-hour long interrogation was not voluntary. Using the holding from Spano v. New York, psychological coercion is a violation of the Fifth Amendment s protections. By calling into question the level of religion held by Thompkins, the officers used a form of mental bullying. It is telling that Helgert s testimony asserted that Thompkins was silent, uncommunicative, and unwilling to engage in conversation until the question about prayer was posed. Additionally, Thompkins actions are distinguishable from the actions of the detainees in North Carolina v. Butler and Connecticut v. Barrett. Although in all three cases the suspect refused to sign anything while never explicitly asserting the right to remain silent, Thompkins demeanor during the interrogation is distinct. Thompkins did not engage in continual and consistent conversation with the officers, unlike the suspects in North Carolina v. Butler and Connecticut v. Barrett. He showed a clear unwillingness to speak or answer questions throughout the first two hours and forty-five minutes of his interrogation. Helgert corroborated that fact in his testimony. Helgert claimed that the questioning was very one-sided, and that Thompkins was not verbally communicative. While Helgert stated that Thompkins sporadically answered, I don t know, the detective could not identify a single question to which that answer was given. The only examples of oral communication that Helgert could recall centered on Thompkins refusal of a peppermint and comment on the hardness of the chair where he say. Furthermore, Helgert answered affirmatively to the defense s question as to whether Thompkins consistently exercised his right to remain silent. Helgert s testimony shows that Thompkins attempted to assert his right to remain silent throughout the questioning. II. THE FAILURE OF THOMPKINS COUNSEL TO REQUEST A LIMITING INSTRUCTION CONSTITUTES A VALID INEFFECTIVE-ASSISTANCE-OF- COUNSEL CLAIM 7

This Court has protected the Sixth Amendment right to counsel and has extended to ensure counsel for all those accused in a criminal trial. This right has been understood that not only does the Sixth Amendment require counsel for those accused, but the right to counsel also means a right to effective counsel. To judge claims of ineffectiveassistance-of-counsel, the Court established a two-part test in Strickland v. Washington. In applying this test to Thompkins counsel at the trial court level, the U.S. Court of Appeals for the Sixth Circuit affirmed Thompkins ineffective-assistance-of-counsel claim. This holding should be affirmed. A. THIS COURT HELD THAT THE SIXTH AMENDMENT S RIGHT TO COUNSEL CLAUSE, APPLIED TO THE STATES THROUGH THE FOURTEENTH AMENDMENT, EXTENDS TO ALL DEFENDANTS IN A CRIMINAL TRIAL The Sixth Amendment s right to counsel clause was given relatively little notice until the twentieth century. In 1938, the Supreme Court first held that the right to counsel required the representation of indigent defendants undergoing a federal, criminal prosecution. Johnson v. Zerbst, 304 U.S. 458. The right to counsel for criminal defendants was applied to the states through the Fourteenth Amendment in 1963. In Gideon v. Wainwright, the Supreme Court overruled a prior decision that denied application of the Sixth Amendment to state governments, stating the importance of its right to counsel as fundamental component to a just legal process. Gideon v. Wainwright, 372 U.S. 335. B. THIS COURT ESTABLISHED IN STRICKLAND V. WASHINGTON A TEST WITH WHICH TO JUDGE INEFFECTIVE-ASSISTANCE OF- COUNSEL CLAIMS In Strickland v. Washington, the Supreme Court concluded that while the Sixth Amendment guarantees the right to counsel, to protect that right, the defendant must be provided with effective counsel. To determine whether or not an ineffectiveassistance-of counsel claim is valid, the Court established a two-part test to judge claims of ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668 (1984). 1. The defendant must show that counsel s performance was deficient. The burden is upon the defendant to show that counsel s performance was deficient. In Strickland, the Court asserts that to show deficient performance, the defendant must prove that the counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668 (1984), at 465. The Court refused to put forth restrictions and guidelines as to the proper duties of attornies. The majority explained that because the role of counsel encompasses such a broad spectrum of responsibilities, delineating specific claims as valid would be unnecessarily restrictive towards those who are attempting to make an ineffective-assistance-of-counsel claim. The overall purpose of counsel s duties is to use his or her skills to do the best possible job for the defendant, under the circumstances. 8

2. The defendant must show that the deficient performance prejudiced the defense. Putting forth the second prong of its test, the Supreme Court asserted that the deficiencies of counsel must be such that it prejudiced the defense. Attorney errors are not enough to prove prejudice; the defendant must show that deficiency not only had an effect on the outcome but also that it had an adverse effect on the defense. The question that must be answered is whether, without the counsel s misconduct, the judge and jury would have had reasonable doubt with respect to the defendant s guilt. Id., 466. This, taken with the totality of the information available, will be used to affirm or deny a claim of ineffective assistance of counsel. C. THIS COURT SHOULD UPHOLD THE CIRCUIT COURT OF APPEAL APPLICATION OF THE STRICKLAND TEST, WHICH AFFIRMED THOMPKINS INEFFECTIVE-ASSISTANCE-OF-COUNSEL CLAIM The United States Court of Appeals for the Sixth Circuit found that the Michigan Court of Appeals improperly applied the Strickland test and that Thompkins ineffectiveassistance-of-counsel claim should be affirmed. The Court of Appeals for the Sixth Circuit found that the state court did not correctly construe the facts with respect to the second prong of the Strickland test. 1. The failure of Thompkins counsel to request a limiting instruction with respect to Purifoy s testimony constitutes a deficient performance Eric Purifoy s testimony asserted that Thompkins was the man who shot at Morris and France from the passenger seat of Thompkins van. While that claim directly challenged Thompkins defense that Purifoy was the murderer, Purifoy s statements were admissible. However, by introducing the fact that Purifoy has previously been acquitted of the February 10 murder, the judge and jury were privy to inadmissible information. The trial court argued that the conviction information was okay because it was merely for credibility purposes and not for the purposes of incriminating Thompkins. On appeal, the subsequent courts found that the failure of Thompkins counsel to request a limiting instruction to the jury about the use of the evidence was an oversight and an error, but did not constitute a deficient performance for purposes of an ineffective-assistance-ofcounsel claim. Thompkins argued that the information was prejudicial in that if Purifoy had been acquitted of the murder charges, Thompkins was the only suspect left as the shooter. 2. The deficient performance of Thompkins counsel prejudiced the defense The second part of the Strickland test requires the defendant to be able to show that with "a reasonable probability that, but for counsel's unprofessional errors, the result of the 9

proceeding would have been different." Strickland v. Washington, 466 U.S. 668 (1984), at 694. The main argument for Thompkins defense was that Purifoy had been the shooter. Purifoy s conviction for aiding and abetting the January 10 shooting was stated more than once during Thompkins trial. The claim that the information was used to establish that Purifoy was present at the time of the shooting did not change the fact that the information about the outcome Purifoy s previous trial served to prejudice the judge and jury against Thompkins defense. If Thompkins were not found guilty of murder, no one would answer for the death of Morris. The U.S. Court of Appeals for the Sixth Circuit correctly found that in the absence of a limiting instruction, the jury could well have believed that it was entirely proper to weigh Purifoy's acquittal as significant evidence that Thompkins must have been the shooter. Thompkins v. Berghuis, 547 F.3d 572 (2008), at 591. The counsel s failure to provide limiting instructions to the jury about the proper usage of Purifoy s conviction, as a credibility factor rather than a statement of fact about Thompkins guilt, prejudiced the defense s claim that Purifoy was the shooter. Counsel s error prejudiced the defense, and but for that error, it is reasonable to believe that the result of the trial may have been different; therefore, Thompkins claim of ineffective-assistance-of-counsel should be affirmed. VI. CONCLUSION For the reasons set forth above, Respondent respectfully requests that the judgment of the United States Court of Appeals for the Sixth Circuit be affirmed. Respectfully submitted, [x signature] Name of Student Attorney for Respondent [date] 10

VII. APPENDIX The Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. The Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. The Fourteenth Amendment, Section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 11