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Brief for Petitioner

Conclusion

The day is here to recognize the full meaning of the Sixth Amendment. As a matter of constitutional theory and of criminal procedure, if a defendant cannot waive counsel unwittingly in one part of the conviction procedure, he should not be able to waive it at another. As a matter of practicality in law enforcement, we cannot know the precise effects of giving counsel at the beginning as the law does at the end; but we can know that there is not the faintest sense in deliberately establishing an elaborate and costly system of counsel—to take effect just after it is too late to matter. Yet that is precisely the Miranda case.

We invoke the basic principles of Powell v. Alabama: "He requires the guiding hand of counsel at every step in the proceedings against him." When Miranda stepped into Interrogation Room 2, he had only the guiding hand of Officers Cooley and Young.

We respectfully submit that the decision of the court below should be reversed.

41 "The 'war on crime' is not a sporadic crisis, here today and gone tomorrow, justifying during its brief combat stage a shelving of long-standing immunities of the citizen." Sutherland, supra, n. 40, 79 Harv. L. Rev. at 40-41, supported by contemporary illustrations; and see citations collected in the Horsky Report, pp. 46-47.

42 We are not unaware that this case was reversed on other grounds, three to two by the Second Circuit, Judges Clark and Waterman dissenting on the issue of rehearing, 295 F. 2d 83 (2d Cir. 1961) and that certiorari was denied, 368 U.S. 948, 82 Sup. Ct. 390, 7 L. Ed. 2d 344 (1962). We respectfully commend it as a good case all the same.

43 Without the "half-inch" statement in the confession (R.69), there might have been no rape in this case at all. There was no medical testimony of any rape. In response to the prosecution's questions, the prosecutrix testified that at first the defendant was unable to make penetration; that later he did, but whether with his finger or his penis, she "was not sure" (R. 19). A few lines later, she said he made penetration with his penis (R. 20); but on cross, in response to the question of whether entry had been made "with his finger or his penis," she replied, "I don't know" (R. 32), and later she said, "I guess it was with his penis" (R. 33).

44 Counsel notes with appreciation the research assistance of Mr. Robert Jensen of the Minnesota bar and Mr. Paul Ulrich of the California bar, both clerks in the office of counsel.

Respectfully submitted,
LEWIS ROCA SCOVILLE BEAUCHAMP & LINTON
By John P. Frank44
John J. Flynn
January, 1966.

Additional topics

Law Library - American Law and Legal InformationNotable Trials and Court Cases - 1963 to 1972Brief for Petitioner - On Writ Of Certiorari To The Supreme Court Of The State Of Arizonabrief For Petitioner, Jurisdiction