MICHIGAN v. MOSLEY

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Argument of Thomas M. Khalil

Chief Justice Warren E. Burger: We will hear arguments next in 74-653, Michigan against Mosley.

Mr. Khalil, you may proceed whenever you are ready.

Mr. Thomas M. Khalil: Mr. Chief Justice and may it please the Court.

This case presents to this Court, the question of whether Miranda versus Arizona and Westover versus United States precludes any good faith non-coercive interrogation, subsequent to a defendant’s exercise of his right to remain silent.

An additional question that is involved in this case, is whether or not the exercise of the right to remain silent relative to one crime, per se precludes any subsequent interrogation relative to a separate and distinct crime.

Now, the facts in this case arise out of the first-degree murder of a man by the name of Leroy Williams.

The respondent in this case, Mr. Richard Bert Mosley was arrested on April 8, 1971 at about 1:05 in the afternoon.

He was arrested in connection with some unrelated robberies, that is to say robberies unrelated to the murder for which he was convicted.

The arresting officer in this case, Detective Sergeant James Cowie, initially interviewed the defendant in this case for about 20 minutes.

That interview was undertaken after a full advise of rights was given to the respondent and after a waiver of those rights was obtained.

After Detective Cowie began to interrogate the defendant in this case, Mr. Cowie began asking Mr. Mosley about the White Tower Robbery, one of the robberies for which he was arrested.

At that point in time, Mr. Mosley said I do not want to talk about any robberies.

Detective Cowie immediately terminated the question and did not see the defendant again, except to tell him that he would be questioned later by Detective Sergeant Hill of the Homicide Section.

Mr. Mosley was then taken to the ninth-floor lockup area at about 4 o’clock in the afternoon.

During this time, Detective Sergeant Hill of the Detroit Homicide Section had been talking with an accomplice in the Leroy Williams murder, a man by the name of Anthony Smith.

Mr. Smith at about 4 o’clock or so made certain statements to Mr. Hill, implicating Mr. Mosley as the shooter in the Leroy William slaying.

Detective Hill thereafter at about 06:25 in the evening took Mr. Mosley from the ninth-floor lockup area and took him down to the fifth-floor Homicide Section.At that point in time, Detective Hill gave Mr. Mosley his rights in explicit detail, specifically Mr. Hill had the defendant Mosley read his rights to himself then Detective Hill had Mr. Mosley read the rights out loud so that Detective Hill could ascertain whether or not in fact the defendant could read.

Detective Hill then read the Miranda Rights back to Mr. Mosley, explaining in detail all of the points contained on that document.

At that point, Mr. Mosley testified that he fully understood his rights and in fact he signed the rights form, informing him that he had been informed of his rights.

Defendant Mosley testified -- yes, Your Honor?

Justice Thurgood Marshall: What is the reason for doing this twice, giving him the Miranda Warnings twice, what was the reason for it?

Mr. Thomas M. Khalil: Well, Your Honor in this case, I think that Detective Hill did not know that Mr. Mosley had earlier exercised any right to remain silent.

Justice Thurgood Marshall: Why did he not know?

It was on the same Police Department, was it not?

Mr. Thomas M. Khalil: That is correct, Your Honor, but --

Justice Thurgood Marshall: It was in the same building, was it not?

Mr. Thomas M. Khalil: It was in a different floor, Your Honor.

It was in the same building, yes.

Justice Thurgood Marshall: Why did he come to different floor?

Mr. Thomas M. Khalil: Because it was a different bureau, Your Honor, investigating the crime.

It was the Homicide Section.

Justice Thurgood Marshall: Moving him around from place to place and then all of the sudden you give him another warning?

Mr. Thomas M. Khalil: Not at all, Your Honor.

In fact, the defendant in this case testified that knew he was not being taken place to place.

The defendant in this case --

Justice Thurgood Marshall: He knew that when he was taken from fourth floor to the ninth floor, did he say he did not do that?

Mr. Thomas M. Khalil: That is exactly where they took them here.

What I am saying is that --

Justice Thurgood Marshall: Then they have moved him around?

Mr. Thomas M. Khalil: They took them to the lockup area, Your Honor and brought them back them for further interrogation.

Justice Thurgood Marshall: Then they gave him Miranda Warning, again?

Mr. Thomas M. Khalil: That is correct Your Honor.

Justice Thurgood Marshall: Why?

Mr. Thomas M. Khalil: Because Detective Hill was going to interrogate him on the Leroy Williams murder and under the doctrine enunciated by this Court in Miranda versus Arizona, the rights were prerequisite to any interrogation.

Justice Thurgood Marshall: Is there anything in Miranda about taking from place to place and giving the warnings every time they took him?

Mr. Thomas M. Khalil: In the companion case --

Justice Thurgood Marshall: But, of course not?

Mr. Thomas M. Khalil: In the companion case, Your Honor, there is discussion of that particular point.

Justice Thurgood Marshall: I know a little bit about that one.

Mr. Thomas M. Khalil: Westover versus United States.

Justice Thurgood Marshall: Yes, I remember that.

That was state and federal.

Mr. Thomas M. Khalil: That is correct Your Honor.

Justice Thurgood Marshall: But this is all state?

Mr. Thomas M. Khalil: That is correct Your Honor.

In this case, we do not feel that it makes a difference.

What should make a difference in this case is what the circumstances in this particular case show.

Justice Thurgood Marshall: But the question to me as to why you gave the same warning twice, the same interrogating or agency gave him the same warning twice?

Mr. Thomas M. Khalil: In this case, Your Honor, there was a change in circumstances.

Justice Thurgood Marshall: But what if you thought he was going to change his mind?

Justice Harry A. Blackmun: Unless there is the state that will penalize for overdoing it?

Mr. Thomas M. Khalil: I do not think so, Your Honor.

I think that the state in this case should be commended for the reasonable efforts of the law enforcement personnel that are involved in this particular case.

Justice Thurgood Marshall: But suppose you have given six of them, would that not be penalizing him?

You should live him alone after the first one as I read Miranda?

Mr. Thomas M. Khalil: Well, Your Honor, that is not the way that we --

Justice Thurgood Marshall: As I read Miranda?

Mr. Thomas M. Khalil: That is not the way we read Miranda, Your Honor.

That is not the way that the majority of jurisdictions in the United States that have addressed that precise question read Miranda.

There is nothing in Miranda in our opinion that would adapt a per se rule in every case.

That basically is what the Michigan Court of Appeals did in this case and that is what we assert in this Court was error.

Rather the test should have been in the Michigan Court of Appeals, did the defendant in fact knowingly and intelligently waive his rights under Miranda versus Arizona.

That is to say, did he understand those rights and did he waive those rights.

Now, in the test that we proposed and in the test that we think has been the rule since Miranda, the totality of the circumstances must be considered in any given case and in this case, for example, the act that he had been questioned earlier is merely one of the circumstances to be considered.

Justice Potter Stewart: May I ask you Mr. --

Mr. Thomas M. Khalil: Khalil, Your Honor.

Justice Potter Stewart: -- does the record show whether or not Hill knew about the earlier interrogation by Cowie?

Mr. Thomas M. Khalil: Yes, Your Honor, the record indicates that Detective Hill did not know that Mr. Mosley had exercised his right to remain silent relative to the robberies.

Justice Potter Stewart: Does it show whether or not he knew that Mosley had been interrogated by Cowie?

Mr. Thomas M. Khalil: Yes, Your Honor.

He knew that Detective Cowie had interrogated him and according to Hill, he had understood that Mosley had denied implications “in any robberies.”

He did not know that he exercised his right to remain silent.

I might note, Your Honor, that initially Mr. Mosley did not remain silent.

He signed the waiver rights form in this case and only later waived those rights.

Justice Potter Stewart: That is Hill’s testimony in the record, is it?

Mr. Thomas M. Khalil: That is Hill’s testimony and it is also Mr. Cowie’s testimony that he did not tell Detective Hill about the prior exercise.

Justice Potter Stewart: There was no direct contact as I understand it between Cowie and Hill?

Cowie finished about 4 p.m. and Mosley was in the turn somewhere and then it was not until about 6 p.m. that he was taken to the ninth-floor and interrogated by Hill, is that right?

Mr. Thomas M. Khalil: He was taken to the fifth-floor from the ninth and interrogated by Hill.

That is correct, but there was some contact between Hill and Cowie.

In fact, Detective Hill discovered the presence of Mr. Mosley in the headquarters building from Lieutenant Dam (ph) who was then on duty and from Detective Cowie.

However, there was no elaborate discussion as to what had occurred between Cowie and Mosley.

Justice Potter Stewart: He did know that -- about the earlier interrogation and he did know that Mosley had refused to discuss the robberies?

Mr. Thomas M. Khalil: He did not know that specifically, Your Honor.

He knew that, as far as Detective Hill knew, Mr. Mosley had declined or denied any implication in the robberies.

Justice Potter Stewart: He denied any implications?

Mr. Thomas M. Khalil: That is correct, Your Honor.

Justice Byron R. White: But your agreement I take it would be the same whatever he knew?

Mr. Thomas M. Khalil: That is correct, Your Honor.

The fact that he had remained silent earlier --

Justice Byron R. White: But that is not critical, you do not think that is a critical fact in the case?

Mr. Thomas M. Khalil: No, I do not, Your Honor, not at all.

Justice Byron R. White: Should we decide the case on the assumption that the second officer knew that he had declined to answer and he had decided to exercise his rights?

Mr. Thomas M. Khalil: Well, I think in this particular case, Your Honor, the record is clear that he did not know that he had earlier exercised his rights, but it does not matter for purposes --

Justice Potter Stewart: It might, it might.

In any event, you do not know what might matter or not, but in any event you say, the record is clear that Hill testified at least that he did not that know that Mosley had exercised his right to remain silent in the earlier interrogation?

Mr. Thomas M. Khalil: That is correct, Your Honor.

Chief Justice Warren E. Burger: And if he had any doubt about whether the warning had been given or what had proceeded, I suppose your position would be the prudent thing was to give the warning again?

Mr. Thomas M. Khalil: That is correct, Your Honor.

That is precisely what Detective Hill did in this case.

Justice Thurgood Marshall: And if he had not done that, you would not have any case, would you?

Mr. Thomas M. Khalil: That is not necessarily correct, Your Honor.

In this particular case, the fact that Detective Hill did not know, I think goes to the fact that it was bona fide investigation.

It was a good faith police effort by Detective Hill in approaching defendant in this case.

Now, the Michigan Court of Appeals did not even reach that issue.

The Michigan Court of Appeals said that this Court intended under Miranda versus Arizona to hold that the mere approaching of a defendant a second time was per se coercive and I would submit that on the record in this case that could in any way be substantiated or justified.

That the only way that this case could have been reversed and indeed was reversed was based on the per se rule which as I indicated is contrary to the majorities of the jurisdictions in the United States, both state and federal.

Now, it is our position here that what the Michigan Court of Appeals should have done was to look at the totality of the circumstances surrounding the interrogations here and indeed look at the waivers in this case.

Now, the waivers here razor clean.

There is no tenable argument that could be made that these waivers were not knowingly, intelligently and voluntarily made.

Now, no questioning whatever occurred in this case prior to obtaining of a waiver by either detective Cowie or detective Hill.

That is to say there was no coercion used, no trickery used, nothing along that vein in order to get a waiver in this case.

The waivers were constitutionally procured in this case and it is our position that in fact the confession was constitutionally procured in this case.

Now, I might point out for the Court’s reference that our assertion as the totality of the circumstances should be the test in this case, is apparently agreed upon by the respondent here.

Now, at pages 21 and 31 of his brief and at page 44 in the conclusion of his brief, the respondent indicates that indeed the inquiry that this Court should make is whether or not under the totality of circumstances, whether respondent Mosley under all of the circumstances knowing and voluntarily and intelligently waived his rights.

Now, that is precisely what we are arguing to this Court.

Now, we do not feel that we are contending for a new rule here in this Court.

It is our position that has always been the rule since Miranda.

That in fact, any new rule here is the rule that has been promulgated by the Michigan Court of Appeals and we submit that that rule ought not to stand in this particular case nor in any other case arising under these same facts.

Now, it cannot be disputed here that Mr. Mosley was twice given his rights, in fact, the Court of Appeals found that in their opinion and I do not think it is disputed on this record.

There were as I mentioned two clean waivers of rights.

There was not coercion in this case.

There were no threats made to the defendant in order to get him to waive.

There was no attempt in this case to subvert his previous exercise of the right to remain silent.

There was no long incarceration here.

This case was a new investigation being handled by a separate bureau, in charge of by a separate police officer, Sergeant Hill, and in fact, the interrogation initially I point out, was only twenty minutes in length, only covered a few preliminary questions.

Now, the many Courts that have considered this question, both state and federal courts, have adapted the rule that we are contending for in this case.

That is to say that as long as any subsequent inquiry respects the rights preciously asserted in the subsequent inquiries undertaken for good faith reasons, there is no reason or whatever to hold the fact that the man exercised his right previously should taint any subsequent voluntarily waiver of rights.

That is what we are saying in this particular case, that the rights were knowingly waived previously than they were exercised relative to robberies.

In the second case, there was a knowing and intelligent waiver here and the confession was voluntarily made.

I point out to the Court that there was no badgering here.

There was no harassing as Mr. Justice Marshall has inclined to believe.

There was no institutionalized --

Justice Thurgood Marshall: (Inaudible) Would you please not characterize what I am thinking?

Mr. Thomas M. Khalil: My apologies, Your Honor.

Justice Thurgood Marshall: (Inaudible)

Mr. Thomas M. Khalil: But there was in any event no bureaucratic harassment in this case.

There was not systematic attempt to break down the exercise of his right previously exercised.

In fact, as I indicated, Mr. Hill did not know of that previous exercise.

I think that goes to the good faith of his activities in this case.

Now, we feel in this case that the Michigan Court of Appeals erred by adapting the per se rule and holding the confession should have been suppressed.

We are asking this Court to reverse the Michigan Court of Appeals and on the circumstances in this case to hold the confession to have been voluntarily and intelligently entered into and tendered into evidence.

Now --

Chief Justice Warren E. Burger: I got some impression to what you said earlier that you had in mind a remand to reconsider under the totality of the evidence approach?

Mr. Thomas M. Khalil: No, Your Honor.

Everything that would be available to a Michigan Court is available to this Court.

What I think I suggested, Your Honor or attempted to suggest, was that defense counsel in this case agreed with us that totality of circumstances should have been the test in the Michigan Court of Appeals and should be the test here, although his conclusions are somewhat different from the petitioners in this case.

Justice William H. Rehnquist: Well, if we reject the per se rule which you said the Michigan Court of Appeals has adapted, would we not ordinarily simply tell Michigan Court of Appeals that was not a proper standard for reversing on the federal constitution and then let them make an assessment as to the totality of the circumstances?

Mr. Thomas M. Khalil: Well, Your Honor, I know that this Court in Brown versus Illinois, decided last term, decided the issue rather than submit it back to the Trial Court, that this Court will have before all of the facts that will be available to the Michigan Court.

And I think that given this case Your Honor, it would be importance of this case and the importance of this issue to all of the State and Federal Courts, not only the Michigan Court, that this Court ought to instruct lower courts on what the feeling is of this Court in this area and I think that, especially the Michigan Court in this case needs some instruction on that particular point.

Justice Harry A. Blackmun: Let me follow through at this point.

Brown against Illinois is a little different than this case in the sense that there as I recall, the arrest was concededly an illegal one.

If you should prevail on the argument you made so far, do you think we should nevertheless remand the case for determination of the legality or illegality of the arrest and hence the implication of Brown and Wong Sun?

Mr. Thomas M. Khalil: Well, Your Honor, in this case, I would submit to the Court that enough facts are present here that this Court could determine whether or not the arrest was valid, if it so desired.

However, the fact remains that the Michigan Court of Appeals only addressed one issue in this case and that was the Miranda issue.

It is our position that impliedly that meant that the arrest was lawful here.

What we would ask this Court to do, would be to reverse the Michigan Court of Appeals, relative to the confession and send it back to the Michigan Court for proceedings not in consistent with that opinion.

I think under that particular remand, the defendant would be allowed to raise any other grounds that he might feel he was entitled to.

Justice Harry A. Blackmun: And you would be content with that kind --?

Mr. Thomas M. Khalil: We would be content, Your Honor, with the reversal of the Michigan Court of Appeals and with some instructive language relative to the confession in what Miranda intended in cases such as this one.

Justice Potter Stewart: Well, what is a Walker Hearing?

Mr. Thomas M. Khalil: A Walker Hearing, Your Honor, is the counterpart of the Jackson v. Deno case.

Justice Potter Stewart: That is the case in Michigan, the Walker case?

Mr. Thomas M. Khalil: The Walker hearing is a Jackson v. Deno hearing to determine the admissibility and voluntariness of a confession.

Justice Potter Stewart: The Walker case is a Michigan Case, not (Voice Overlap)?

Mr. Thomas M. Khalil: It is People versus Walker.

It is a Michigan case, Your Honor.

Justice Potter Stewart: Alright.

I see.

Justice Harry A. Blackmun: Every state has a different name?

Justice Potter Stewart: That is correct, Your Honor, ours is Walker.

Justice Potter Stewart: Very good.

Thank you.

Mr. Thomas M. Khalil: Now, it is our position in this case that Miranda did not preclude subsequent interrogation relative to even the same case that instead as I indicated the circumstances of the waiver and the confession have to be looked to on a case by case basis, but in any event, this case is not a case of continuing or incessant interrogation.

This case, indeed is a case, wherein the interrogations, one by Cowie and one by Hill, involved separate, unrelated, distinct crimes and it is our position that this case was specifically allowed for in the companion case, the Miranda, Westover versus United States.

Now, this was a different crime.

There was a different interrogator and may I say I feel that it was a different place, the interrogation taking place in the fifth-floor rather than the fourth and those circumstances more importantly appearing to the defendant because he testified that he understood that the second inquiry was a homicide inquiry --

Justice Thurgood Marshall: The Westover was the state court prosecutors and the federal prosecutors, that is entirely different, is it not?

Mr. Thomas M. Khalil: I do not think so, Your Honor.

I think that it would be merely a form over substance rule that would require that the Second Authority come from the federal jurisdiction as opposed --

Justice Thurgood Marshall: And you do not see any difference in the state and federal?

Mr. Thomas M. Khalil: Not at all, Your Honor, I think the critical question is to look at the state of mind of the defendant in a particular case and I think that is what this Court did in Westover because in Westover, even Westover --

Justice Thurgood Marshall: Westover was deliberately (Inaudible) opinion that one was federal and one was state.

I am not familiar with Westover.

Mr. Thomas M. Khalil: That is correct, Your Honor.

Justice Thurgood Marshall: As the best way to remember a case is to lose one?

Mr. Thomas M. Khalil: That is correct, Your Honor, you argued that case as I remember.

Justice Thurgood Marshall: And that was the point that one was federal and one was state?

Mr. Thomas M. Khalil: But what I am saying, Your Honor, that ipso facto that should not determine what the outcome in a given case is.

I say that it is a merely a formal distinction as to whether one authority is a federal authority or a state authority.

I can visualize certain cases arising, for example in our jurisdiction, wherein one police agency may come into a case, wherein say the Detroit Police Department is holding a particular suspect and to say that simply because they may be from the same agency that per se precludes any interrogation.

I submit that Westover does not go that far.

I think that in Westover, this Court recognized that the questioning there which went over fourteen hours and was without Miranda Rights, could result in a voluntary confession to the FBI, who was the second interrogating authority as long as Miranda Rights were given and as long as the defendant in that case was given an opportunity to exercise those rights.

Now, if that is the case, I submit that in this case wherein we have only a short 20-minute interrogation wherein the defendant’s rights were honored, in fact, they saw that they worked, he exercised the right to remain silent relative to the robberies, questioning ceased.

That in this case, with that short interrogation, a respect of rights, a valid giving of Miranda Warnings, that should not taint per se the subsequent confession in this case, given to Detective Hill.

That is our position as far as Westover goes in this case.

We feel that it supports the position in this particular case.

Justice Byron R. White: Who has authority in Detroit to prescribe the police investigating procedures?

Is it the city Government or the City Council or the --?

Mr. Thomas M. Khalil: Yes, Your Honor, the City Government.

The Detroit Police Department prescribes procedures to be followed by its officers in a given case.

Justice Byron R. White: And the state has no authority or whatsoever?

Mr. Thomas M. Khalil: No, in the city there are state statutes, Your Honor, that guide the City Police in certain areas.

For example, in the area of arrest --

Justice Byron R. White: But the Attorney General’s’ Office has no authority?

Mr. Thomas M. Khalil: The Attorney General does not have a direct hand in it, Your Honor.

We have the Detroit police Department.

We have the Wayne County Sheriff’s Department and we have the Michigan State Police.

Justice Byron R. White: But in a case like this, it is the local prosecutor’s office has the authority to handle the appellate litigation?

Mr. Thomas M. Khalil: That is correct, Your Honor, the Wayne County Prosecutor’s Office.

Justice Byron R. White: The Attorney General has no authority?

Mr. Thomas M. Khalil: Yes, he does, Your Honor.

The state Attorney General, are you speaking about this particular case coming into this case?

The Attorney General has the authority in the State of Michigan to enter any case as the Attorney of Record on behalf of the people.

Justice Byron R. White: (Voice Overlap) to bringing the case here?

Mr. Thomas M. Khalil: Not that I am aware of, Your Honor.

Justice Byron R. White: Alright, thank you.

Justice William J. Brennan: But he may displace the local?

Mr. Thomas M. Khalil: He may displace us, if he so chose to do so, but in this particular case he did not do that.

Now, as indicated, it is our position here that the confession was voluntarily made and knowingly and intelligently made, we would ask this Court as I indicated to Mr. Justice Blackmun to reverse the Michigan Court of Appeals on the confession issue and hold that indeed Miranda versus Arizona did not preclude any subsequent interrogation for good faith purposes.

Thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Ziemba.

Argument of Carl Ziemba

Mr. Carl Ziemba: Thank you Mr. Chief Justice and members of the Court.

I think that what we have here is a semantic problem rather than a legal one or perhaps it comes to the same thing, since real law deals with nothing but words.

I think that the semantic problem initially starts with the meaning of the word “quit.”

Now, Mark Twain once told us that, quitting smoking is the easiest thing in the world to do.

I have done it hundreds of times and apparently this is what the Detroit Police Department and the Wayne County Prosecutor says.

Miranda says, true enough, when an accused under custodial interrogation exercises his right under the Fifth Amendment to remain silent, that election by him must be honored and all questioning must cease which means to my mind, all questioning must quit.

Justice Potter Stewart: But does mean not forever obviously?

Mr. Carl Ziemba: No, not forever.

Justice Potter Stewart: I mean, if he is released, a year later and apprehended on some separate crime --

Mr. Carl Ziemba: True, true, true.

But I do not think that this Court meant in Miranda that the police are to quit questioning for five minutes.

Justice William H. Rehnquist: But that is just dicta that you are quoting from Miranda, is it not?

I mean, that had not in fact happened to Miranda?

Mr. Carl Ziemba: Well, no but the language is there, the questioning --

Justice William H. Rehnquist: But I think it was dicta, was it not?

Mr. Carl Ziemba: Not the statement that the questioning must cease, Your Honor.

Justice William H. Rehnquist: Well, I thought that definition of dicta was any observation by the Court made that was not necessary for decision on the particular facts before it?

Well, (Voice Overlap) 99.5% of the Miranda opinion is dicta?

Mr. Carl Ziemba: That is my point which really --

Justice William H. Rehnquist: So, you concede then that you are relying on dicta?

Mr. Carl Ziemba: Under that that definition, yes, yes.

If it was dicta for this Court to say that when an accused under custodial interrogation, he elects to exercise his Fifth Amendment right to silence and it must be honored and the police must cease questioning, if that is dicta, I am relying on that.

And I think that this Court meant that the police are not to cease for five minutes, that the police cannot then decide how long they will cease questioning the accused.

When a Court issues an injunction to a man to stop beating his wife in a divorce case, the Court does not mean stop for five minutes.

The Court means what it says, stop.

If indeed, according to further dicta in Miranda --

Chief Justice Warren E. Burger: You are referring an injunction with something like a side bar comment in the Miranda Opinion now?

Mr. Carl Ziemba: I would like to elevate it to more than just a side bar comment.

Chief Justice Warren E. Burger: Well, in Harris against New York, we indicated that we were separating the dicta from the substantive aspects of the holding, did we not?

Mr. Carl Ziemba: That is true, that is true and then of course this Court in Santobello, when confronted with a situation where one prosecutor made a promise to a criminal defendant regarding his plea and other indistinct prosecutor appeared with that same defendant in open Court that the promise of the first out of Court prosecutor would be binding on the in court prosecutor.

This Court saying --

Chief Justice Warren E. Burger: That was not on the Miranda issue?

Mr. Carl Ziemba: No, but this Court said, if responsibility could be evaded that way, the prosecution would have designed another deceptive contrivance akin to those we condemned in Mooney versus Holohan and which is the point of the respondent here.

If the strictures of Miranda can be avoided by the simple expedient of taking the accused and just shuttling him, to sending him from one police officer to another and requiring him as the prosecutor suggested, each and every time a police officer undertakes the question, you must once again say, I want to remain silent under my privilege, under the Fifth Amendment, then eventually you are going to overcome and over bear the will of this person not to answer questions.

If indeed, custodial questioning by police in an incommunicado situation, such as we had here, is inherently coercive and if you allow an accused the opportunity to say no, I do not want to answer any question and you keep coming back at it by the same police officer or other police officers of the same department, propounding questions to him, are you not further exerting upon him coercive questions?

I think you are.

Chief Justice Warren E. Burger: It makes no difference if the subject matter of the conversation is totally different?

Mr. Carl Ziemba: None, whatever and I think the case at Bar, is the most beautiful illustration of that principle that one could hope to find for this reason.

You have the arrest of the respondent here on the basis of an anonymous telephone call without a warrant.

Cowie received two or three days before the arrest, he could not be sure, a telephone call from a person he had never heard on the telephone before whose name he did not get and did not know at all and this person said that the respondent was mixed up or involved in these robberies on the Southeast side of Detroit and Cowie said the man mentioned the Blue Goose Bar and the White Tower Restaurant and the place where the deceased in the deceased in this case was killed and Cowie went out picked the respondent up and brought him downtown.

And Cowie said, I questioned him only on Blue Goose because I learned that he was not responsible for White Tower and then Cowie turned him over, turned him over to Hill for further questioning in the Leroy Williams matter.

Justice Potter Stewart: He questioned him on Blue Goose which was the name of the café where the robberies had been?

Mr. Carl Ziemba: I think so.

Justice Potter Stewart: He was responsible for White Tower?

Mr. Carl Ziemba: And Cowie mentioned the White Tower robbery.

Justice Potter Stewart: I just want to be sure I understood what you are saying?

Mr. Carl Ziemba: Yes.

Now, if Hill had not been successful in the Leroy Williams case, how many other police officers could then have taken the respondent and questioned him about the other crimes occurring in the South East area of Detroit, if you allow one, why not twenty?

Chief Justice Warren E. Burger: As you indicate in the last paragraph of your brief, if you stand on the totality of circumstances rule then there might be quite a different approach if there were ten such or even five such episodes in sequence as compared with two, is that not correct?

Mr. Carl Ziemba: I think it would be more rote certainly, but in principle I do not think that there is any difference at all because Mr. Chief --

Chief Justice Warren E. Burger: But is that not what the totality of circumstances means?

Mr. Carl Ziemba: In my mind, in this case the totality of circumstances would mean the completely -- the arrest without any probable cause whatever of the respondent.

The failure of Cowie after having taken the respondent downtown to conform to the Michigan Statute which requires the production of an arrested person under felony before a judicial officer without unnecessary delay.

We have a parallel to the Federal Rule 5 requirement and this was not done and Cowie admitted that there was absolutely no physical obstacle to his taking the respondent before some judicial officer of the Court which is located just across the street from the Detroit Police Headquarter.

Instead --

Justice Thurgood Marshall: (Inaudible) because he did not have anything to hold him?

Mr. Carl Ziemba: That is true and precisely Cowie said, I did not take him over because I did not think I had enough.

Further, the prosecutor speaks about the non-coercive aspect of the second interrogation of the respondent.

Now, further dicta in Miranda seems to indicate that once an accused has exercised his right under the Fifth, not to answer any questions, there might be a waiver.

A valid subsequent waiver, but the mere ritualistic incantation of the Miranda Warnings follow thereby by a confession, in and of itself, will not be regarded as a waiver, for the reason that if there were no confession, there would be no question.

Because we have a confession we are confronted with the problem of the voluntariness and of the confession and of the coerce submissions.

This Court, according to dicta, in Miranda, states that if indeed there is a confession under these circumstances, no matter what the testimony of the police is, it is consistent with an involuntary statement and consistent with the will of the accused being overborne by the procedures.

Now, you had in this particular case this additional factor that Hill when he approached the respondent and read of and gave him the Miranda Warnings, immediately stated to the respondent, Anthony Smith has confessed and he puts you on the trigger, you are the shooter.

Justice Thurgood Marshall: But Mr. Khalil says that when he was there the second time with the second officer, if he had not given the Miranda Ruling, he would be yelling?

Mr. Carl Ziemba: [Laughter]

Justice Thurgood Marshall: What would be your answer to that?

Mr. Carl Ziemba: I would have yelled in the either case.

Unknown Speaker: You would yell louder?

Mr. Carl Ziemba: Louder, yes.

[Laughter] I would point to another additional circumstance.

Justice Thurgood Marshall: And then what was the second man to do?

Mr. Carl Ziemba: I am sorry sir?

Justice Thurgood Marshall: The second officer who questioned him, what was he to do?

He could not question him at all?

Mr. Carl Ziemba: This is the respondent’s position that Cowie had a duty and obligation to inform Hill that he, Cowie had advised the respondent of his Miranda rights and that the respondent had elected under the Fifth Amendment privilege to remain silent.

Chief Justice Warren E. Burger: Suppose after the interrogation on the robbery had been concluded by detective number one and he concluded that he did not have enough to hold him or send him across the street for the preliminary hearing, but excused him and he went on home and then the second detective came along and said I wanted to talk to that man before he left that, but he is gone so they send the police car on to his home, pick him up, and bring him down.

Now, I assume you would agree that they must give him a Miranda Warning then, would you not?

Mr. Carl Ziemba: Yes, definitely.

Chief Justice Warren E. Burger: A warning that was two or three hours or a number of hours old, would not carryover?

Mr. Carl Ziemba: Yes, I think there you might say that an intervening event or series of events, both the causal chain between the first interrogations that continued custodial retention of the respondent --

Chief Justice Warren E. Burger: By the intervention, you mean going outside the building?

Mr. Carl Ziemba: And going back to his home and telling father or mother what happened, an 18-year-old boy.

Justice Thurgood Marshall: Mr. Ziemba, I got those --

Chief Justice Warren E. Burger: Now, in this hypothetical case that I am suggesting, in case it might help clear some of these things up.

He comes back to the station house and then from that point on, everything that occurred was just exactly as it occurred in this case.

Do you think you would have the kind of case or any kind of a case here now?

Mr. Carl Ziemba: Just on those facts, very likely I would not.

Very likely, I would not.

Chief Justice Warren E. Burger: So you put your whole case or large part of your case on the absence of the intervening breaking the chain of events?

Mr. Carl Ziemba: Yes, for this reason.

That the inherently coercive atmosphere of a custodial interrogation continued and in my opinion was made worse by the fact that here you have this, let us assume, an 18-year-old boy in incommunicado interrogation by a police officer on such a serious charge of robbery, Your Honor, he is frightened.

He is apprehensive.

There is nobody there to advice him and the officers says it is my obligation to inform you, young man, that if you do not want to answer any questions, you have the perfect right to remain silent and I will honor that and the response is, oh! My heavens! Great! I do not want to answer any questions about any robberies and he is relaxed and another police officer comes and you know how stern police officers can look --

Justice Thurgood Marshall: Mr. Ziemba --

Mr. Carl Ziemba: And he takes him down and says, now I going to question about murder sir.

Not only that, the first thing he does, not to ask, do you want to waive your rights?

He does not ask that at all.

He does not ask, do you want an attorney?

No, the first thing he says, Anthony Smith has confessed and you are the trigger man.

Now, what have he got to say about that.

That is in effect what happened and do we not have the situation that we had in Bram versus the United States where this Court said, what do you expect an individual to in those circumstances when the police officer comes and says, look this is what we have, somebody has confessed or somebody has fully incriminated you (Voice Overlap).

It calls for an answer --

Justice Thurgood Marshall: Would you mind getting this for a minute?

Mr. Carl Ziemba: Yes.

Justice Thurgood Marshall: The same officer that was questioning him and he says, I do not want to talk about any robbery, right?

Mr. Carl Ziemba: Yes.

Justice Thurgood Marshall: And the same officer comes back five minutes later.

He goes out the room and comes back.

He says, oh! By the way, your co-conspirator says you are the one that had the gun, does that make you change your mind?

He says, oh! Yes, I will not talk now, is that okay?

Mr. Carl Ziemba: No, I do not think so.

I do not think so.

According to the dicta of Miranda again, because this Court has said that when an accused exercises his right to counsel, he says I want counsel, no questioning shall continue until counsel comes.

And of course, there are those cases in lower courts, well, Fahey for instance, I think is on point, where incriminating evidence was presented to a defendant and were not for that incriminating evidence, he would not have confessed.

I think that the only way that we are going to -- if indeed, if indeed there is merit to the rule that the police must warn a suspect in custodial interrogation that he has a right to remain silent and if we give the right to the accused to remain silent, the only way that we can make that right meaningful is to require the police to absolutely desist from any further questioning of that defendant before he is presented to a judicial officer, so that the judicial officer may say, “Sir, you are charged or at least accused of a very serious crime.

You have a right under the constitution to an appointment of counsel, if you have no money for counsel, do you want an attorney?”

I remember when I was on the same staff of the Wayne County Prosecutor’s office a number of years ago, I happened to be the senior man in the office this afternoon, two homicide detectives brought a middle-aged man in for me to take his formal statement on a homicide he had done and his paramour common-law-wife and I started out by giving him his rights.

And I said, “Sir, you are a citizen of this country.

If you want a lawyer, if you do not have money, I will go across the street and have a judge appoint one for you, do you want one?”

He said, no.

But I was not convinced with his answer that he was telling me what he really felt in his heart.

And I said, “Mr. Smith, if that was his name, we will leave the room for give minutes and you think about it and tell me.”

And so we did, the Court stenographer and the two detectives and I, when we came back in, I said, “Sir, have you made up your mind?”

And he was looking out the window and he turned his face toward me and he said, “Are you sure, I will not get beat up, if I ask for an attorney?”

It is my opinion that it is not sufficient to read off from a form to a person who is in custody.

You have the right to remain silent.

You have a right to a lawyer if you do not have money for a lawyer, the Court will appoint, any time you want to interrupt the questioning you may –-

Justice Thurgood Marshall: Going back to my question.

Mr. Carl Ziemba: Yes.

Justice Thurgood Marshall: You worried me considerably.

Mr. Carl Ziemba: What is that Mr. Justice?

Justice Thurgood Marshall: Where the officer comes back and says, your co-conspirator says you were the guy with the gun.

Do you have anything to say?

That is not really a question, is it?

Mr. Carl Ziemba: No, it is not.

Justice Thurgood Marshall: Well, why is it barred by Miranda?

Mr. Carl Ziemba: Why is it barred by Miranda?

Justice Thurgood Marshall: Yes.

Mr. Carl Ziemba: Because its purpose and its design is to overbear the will of the defendant who has already stated that he wants to exercise his counsel constitutional right to remain silent.

It is calculated to throw the fight of heaven into his whole so that he will confess or at least to make some incriminating statements.

And if we permit that Mr. Justice, if the man says, I do not want to say anything, then five minutes later the same police officer comes back and says not only do we have your rob partner, but we have an eyewitness who says that you pulled the trigger and the things mount, the things mount.

Now, in this particular case, I think the record indicates that in all likelihood, the second Police Officer Hill, did not have a confession from Anthony Smith.

Justice Byron R. White: But all the defendant said was though was that he do not want to answer any questions about any robberies?

Mr. Carl Ziemba: Yes, and this was robbery connected homicide.

Justice Byron R. White: Well, but it was still a homicide.

Mr. Carl Ziemba: But it was a felony murder as we call it in Michigan --

Justice Byron R. White: Let us assume he is asking about some crime that was not connected with the robbery at all.

Mr. Carl Ziemba: I do not think that.

Chief Justice Warren E. Burger: Just a plain murder?

Mr. Carl Ziemba: And again, we get –- I beg your pardon?

Chief Justice Warren E. Burger: Just a plain murder?

Mr. Carl Ziemba: Yes.

I still think that there is that danger that we will open the door to all sort of subterfuge.

Justice Byron R. White: Not maybe but it is somewhat of an exaggeration of what the defendant claimed when he said I do not want to answer the questions about robberies.

It is a little exaggeration to say, he said that he did not want to answer any questions at all?

Mr. Carl Ziemba: Yes, but Mr. Justice, I do pray you to consider that we here are speaking as ---

Justice Byron R. White: What you are saying in your case to say, he refused to answer any more questions about robberies and the police came back and asked him about a robbery?

That is assuming you still got the cases before us, has it not?

Mr. Carl Ziemba: If I understand what you are saying.

My answer is that we are discussing this thing as trained lawyers.

We may know the semantic differences between answering question about robberies, answering questions about homicide, but here you have an 18-year-old boy who I think when he said, I do not want to answer the questions is in effect saying, I want to take advantage of this right you say, I have to remain silent.

I do not think that it would be fair for us to hold this 18-year-old untrained in legal distinctions to a precise liberal interpretation of his answer.

Chief Justice Warren E. Burger: You do not suggest that that would bar him forever --

Mr. Carl Ziemba: No, no.

Chief Justice Warren E. Burger: -- from --

Mr. Carl Ziemba: Absolutely not.

Chief Justice Warren E. Burger: -- ten minutes later, before they released him, if they were going to release him for lack of evidence, suppose he said I have changed my mind.

I think maybe you give me a break if I tell you the whole story and so I am going to tell you the whole story, anything wrong with that?

Mr. Carl Ziemba: I do not think so.

I think that if we can deter that the statement made by the accused is indeed voluntary, is something that he decided without any pressuring, any coercion to make, then, yes, it is voluntary.

But when we speak of totality of circumstances, I think we have to look that at number one, arrested with utterly no probable cause.

Number two, not taken before a judicial officer as required by the Michigan Statute equivalent to Rule 5.

Justice William H. Rehnquist: But that was not the basis of the Michigan Court of Appeals decision, was it, that the totality of circumstances indicated involuntary?

Mr. Carl Ziemba: No, of course that has been a disappointment to me because all of these grounds were presented to the Court of Appeals on behalf of the respondent.

Justice William H. Rehnquist: Well, then presumably if we reversed on your opponents point, they would still be open to the Michigan Court of Appeals?

Mr. Carl Ziemba: I certainly hope so.

Certainly, I would not want because all of these grounds separately and together were presented to the Michigan Court of Appeals and to the trial court also.

In other words, these very things which I advance to this Court, the arrest without probable cause of violation of the Michigan equivalent of Rule 5 (a).

You might say the trickery involved and this Bram versus United States sort of situation, all of these were preserved from the trial level onwards.

Justice Potter Stewart: Mr. Ziemba?

Mr. Carl Ziemba: Yes?

Justice Potter Stewart: It is not your contention in this case, is it, that his confession was an involuntary confession under the Due Process Standard that existed as a matter of constitutional law up until 1966, when Miranda case was decided, is it?

Mr. Carl Ziemba: No, not, no --

Justice Potter Stewart: Not that it is involuntary confession?

Mr. Carl Ziemba: In terms of being beaten out or sweat it out of him, no.

Justice Potter Stewart: In terms of any of the decisions decided under the Due Process Clause of the Fourteenth amendment?

Mr. Carl Ziemba: This is true Mr. Justice I do not --

Justice Byron R. White: I take that you are but you did not claim in the Court of Appeals on the totality of it all?

Justice Potter Stewart: No?

Mr. Carl Ziemba: Well I --

Justice Potter Stewart: Totality, but not totality to show that it was an involuntary confession under the Due Process Standard.

The totality of the circumstances made it inadmissible is your claim because of the involuntary or because of the warrantless arrest without probable cause because of the violation of the Michigan equivalent of Rule 5 and because of the trickery, but that totality did not make it an involuntary confession as I understand your claim under the Due Process Standard of pre-Miranda Constitutional status?

Mr. Carl Ziemba: That is true.

What I did in the Court of Appeals was present to the Court of Appeals the Brown versus Illinois argument.

Justice Potter Stewart: Despite difference?

Mr. Carl Ziemba: Yes.

Justice Lewis F. Powell: Would your position here today be different if there had been probable cause for the arrest?

Mr. Carl Ziemba: No.

Justice Lewis F. Powell: You make precisely the same argument, would you not?

Mr. Carl Ziemba: I would, yes.

Justice Lewis F. Powell: The issue on which the Michigan Supreme Court or the Appellate Court decided this case and the issue presented to us has nothing to do with the illegality of the arrest.

That is an issue that was not addressed by that Court.

Mr. Carl Ziemba: It was not addressed by the Court.

Justice Potter Stewart: And it has been suggested by some of my colleagues that if we should decide this case against you, there might well still be open -- it might well be said what this Court should do would be to remand it to the Michigan Appellate Court to consider the other claims that you made there that it did not consider?

Mr. Carl Ziemba: Yes, yes, I will agree with that, but I make the further point that I do not think that this Court should decide -- well, the point surely is that after the second Miranda Warnings were given, the question is did the respondent waive his right to remain silent?

Is that not the operative question?

And I think we cannot decide that unless we examine the totality of the circumstances.

The arrest without probable cause is a --

Justice Thurgood Marshall: Why can you not argue all of this as being contrary to the law and constitution of the State of Michigan?

Mr. Carl Ziemba: Well.

Justice Thurgood Marshall: I mean, when you get back, if you go back that way?

Mr. Carl Ziemba: I can because we have the same provision in the Michigan Constitution of 1963 as we have in the Fifth Constitution of the Federal Constitution, certainly.

Justice Thurgood Marshall: But you argued the whole thing before?

Mr. Carl Ziemba: In the Court of Appeals?

Justice Thurgood Marshall: Yes.

Mr. Carl Ziemba: I really did not touch upon, I predicated my entire argument on the Federal Constitution I must admit that.

I did not mention the equivalent provision of the Michigan Constitution of 1963, although I could have and I may assure this Court that every opportunity in the future, I shall.[Laughter]

Justice Potter Stewart: But you hope you did not that opportunity in this case?

Mr. Carl Ziemba: That is right.

That is true Mr. Justice.

Justice Lewis F. Powell: As I have understood your argument this afternoon, it has been based almost exclusively on the totality of circumstances in line of argument.

I had read the decision of the Michigan Court of Appeals as laying down a per se rule relying on the language accorded from Miranda.

Would you elaborate on what I just said?

Do you support the per se rule the Michigan Court laid down or do you agree that it lay down the per se rule?

Mr. Carl Ziemba: I do agree that the opinion can be interpreted as a per se rule.

I do think that it is a good rule to adapt, a per se rule.

The Miranda decision seems to set forth, if it is in dicta.

The per se rules that if the warnings are not given, we are not going to examine into the knowledge of the accused if the warnings are not given, the confession goes down and we are going to make it and I think Miranda also said per se.

If a man asks for an attorney and the questioning continues, the confession goes on and I think that it will be well for us to adapt the rule, per se.

Once an accused under custodial interrogation exercises his right under the Fifth Amendment to remain silent, the police must stop questioning and any violation of that rule, that is any coming back to that defendant between before some judicial process intervenes such as his arraignment in court or even his just presentation in court so that he may be advised by the Court of his rights.

It completely taints -- the confession was unconstitutional and --

Justice Thurgood Marshall: In so far as this man who is in prison, like this man as being held said I will not talk and he cannot be questioned in the next day, he kills another inmate, that he cannot be questioned about that?

Mr. Carl Ziemba: But certainly he may be questioned of it.

Justice Thurgood Marshall: Now, he has claimed his Miranda rulings today, yesterday and he says I refuse to talk and the next day, he kills a prisoner?

Mr. Carl Ziemba: Yes.

Justice Thurgood Marshall: And he is charged with it?

Mr. Carl Ziemba: With killing the prisoner?

Justice Thurgood Marshall: Yes.

Mr. Carl Ziemba: Yes.

Justice Thurgood Marshall: He cannot be questioned?

Mr. Carl Ziemba: About killing the prisoner, certainly.

Justice Thurgood Marshall: How can he be questioned?

You said this goes on indefinitely?

Mr. Carl Ziemba: No, I did not say indefinitely Mr. Justice.

Justice Thurgood Marshall: You said --

Mr. Carl Ziemba: I feel some intervening --

Justice Thurgood Marshall: You said it applied to other crime?

Mr. Carl Ziemba: I said until some intervening judicial.

In other words, we would not be faced with this situation if the first detective --

Justice Thurgood Marshall: Well, then no judicial like here --

Mr. Carl Ziemba: This is my point Mr. Justice.

We would not be here if the first Detective Cowie had after booking the respondent walked him over to the Court Building across the street and presented him to some judge and have the judge say, young man you have these rights, do you want an attorney and if the respondent had consulted with an attorney or if after Cowie determined that, he had nothing to hold the respondent for and having arrested him for these particular crimes on which he had nothing to hold, had released him, we would not be here, you see.

Justice Potter Stewart: Then if a murder had been committed, then that would Justice Marshall’s hypothetical case --

Mr. Carl Ziemba: Then I would say it is a new --

Justice Potter Stewart: -- then truly he could be apprehended and questioned about that murder?

Mr. Carl Ziemba: Yes.

Justice Harry A. Blackmun: Even though his custody continues unbroken?

Mr. Carl Ziemba: No.

Justice Thurgood Marshall: In my case it was, yes.

Justice Harry A. Blackmun: This is Justice Marshall’s question and I wish you would answer it?

Mr. Carl Ziemba: Well, of course in Justice Marshall’s hypothesis, there was no opportunity for the prisoner wining his freedom.

He is in prison as I understand your hypothesis.

He cannot walk home, you see, after having been questioned about the first offense, but our respondent could have and he should have walked home after refusing to answer any questions because the detective who arrested him had absolutely nothing to hold him for.

Justice Harry A. Blackmun: But what is your answer to Mr. Justice Marshall’s question?

Mr. Carl Ziemba: My answer is that it is a difficult question for the reason that we have this added, we have this added factor that a prisoner in state's prison, I take it you mean Mr. Justice Marshall --

Justice Thurgood Marshall: I am talking about this prisoner?

I am talking about Mosley?

Mr. Carl Ziemba: If Mosley had been taken back to lockup and had murdered somebody?

Justice Thurgood Marshall: Yes.

Justice Potter Stewart: Yes.

Mr. Carl Ziemba: I really do not know.

I really do no know the answer to that one.

Justice Potter Stewart: The answer is pretty clear, is it not?

As a practical matter, it should not be difficult.

Of course, he could be questioned about it, could he not?

Mr. Carl Ziemba: About the second murder?

Justice Potter Stewart: Certainly.

Mr. Carl Ziemba: Can he go back to his first one?

Let us put it his way, certainly, I think you will agree Mr. Justice Marshall that if Mosley had been questioned about the first and had been locked up and had murdered somebody before the first detective questioned him and told the first detective, I do not want to answer any questions about any killings, certainly, he could not be then questioned about the killing inside the jail.

Justice Thurgood Marshall: (Inaudible)

Mr. Carl Ziemba: Yes.

Justice Potter Stewart: But in the hypothetical question, this was a later killing after the interrogation, that is what makes it wholly different from the present case?

Mr. Carl Ziemba: Yes and I would answer that of the top my head that question could with propriety ensue on the second killing, but after exercise of the right to remain silent on the first offense.

The Police officers could not go back to that interrogation.

Any further questions?

Chief Justice Warren E. Burger: Your time is up.

Mr. Carl Ziemba: Thank you.

Chief Justice Warren E. Burger: Mr. Khalil, you have eight minutes left.

Rebuttal of Thomas M. Khalil

Mr. Thomas M. Khalil: I think from the examples that had been given in this particular case, some of the answers that had been given by the respondent to them, indicating that some of the answers are very difficult, I think that the Court can see what a Pandora’s Box would be introduced in this case, should the per se rule stand.

And I think that it is clear on that basis why so many states and so many federal jurisdictions in this country have rejected that rule.

It is not a workable rule.

That the more workable rule is the totality of circumstances test and many of the examples given by counsel for the respondent are examples of bad faith of the police.

For example, a failure to take no for an answer and coming back ten times to a particular defendant to get him to waive his rights under the constitution, I think that --

Justice William H. Rehnquist: Mr. Khalil, when you say totality of circumstances, you mean totality of circumstances as to whether the Miranda Rights have been waived and not totality of circumstances as to whether the confession is involuntary under pre-Miranda instead?

Mr. Thomas M. Khalil: That is correct, Your Honor.

Justice Potter Stewart: Your point, a gross deliberate violation of the letter and spirit of Miranda than the confession should be inadmissible regardless of whether or not the confession was in fact involuntary, in fact and in law involuntary under old Due Process Standard?

Mr. Thomas M. Khalil: That is correct, Your Honor.

The Due Process Clause will take care of those situations.

Justice Potter Stewart: Yes, but Miranda case was not decided under the Due Process Clause?

Mr. Thomas M. Khalil: That is correct, Your Honor.

Justice Thurgood Marshall: Let me ask you one thing.

If we should agree with you and remand it and the Michigan Court says that this violates Michigan Law, that would be alright?

Mr. Thomas M. Khalil: That is correct, Your Honor.

We have no objection with what the Michigan Court does based on the Michigan Constitution, but we are here today because the Michigan Court took it upon itself to interpret the Federal Constitution more strictly than this Court itself has ever interpreted that document.

Justice William H. Rehnquist: Can there be an infringement of one's Miranda Rights that is in the language of Justice Stewart, sufficiently gross, so that it would require exclusion of a confession under Miranda, but nonetheless, the statement would be voluntary under the pre-Miranda holdings of this Court?

Mr. Thomas M. Khalil: I think there could be Your honor.

I think that a certain behavior by the Police Department, for example, overreaching, overbearing incessant questioning, badgering of a defendant and obtaining a waiver of rights might result in a violation of Miranda.

Justice Potter Stewart: You cite the cases so holding in your brief?

Mr. Thomas M. Khalil: That is correct, Your Honor.

Justice Potter Stewart: Those cases as you say that they are typified by refusing to take no as an answer?

Mr. Thomas M. Khalil: That is correct, Your Honor.

The cases are legion and we have them I believe all cited --

Justice Potter Stewart: Even though there is not a holding that they were involuntary confessions under the Due Process Clause?

Mr. Thomas M. Khalil: That is correct.

I would also like to point out to the Court that in this particular case, there was no approach by the police telling Mr. Mosley, your rob partners has confessed, come on and waive your rights.

In this particular case, no questioning whatever was undertaken by the Detective Hill, until a waiver of rights was obtained, and thereafter, Mr. Mosley was confronted with his confession and I think in the words of Mr. Mosley, the reason he confessed in this case was because he got scared because of that involvement put on him by Mr. Smith.

One other point that I would like to point out to the Court is that the issue of the arrest has been raised in this particular case.

It has been our position all through these proceedings that the arrest was valid.

There are additional factors which counsel for the respondent has not pointed out to the Court.

I will not take up the Court’s time with those factors necessarily except to say that the information that Detective Hill got from Anthony Smith, at that particular point in time probable cause existed to arrest Mr. Mosley for the murder of Leroy Williams and I think that this Court under the analysis undertaken in Brown versus Illinois, could very well find that indeed the confession was not violative of Miranda.

It was not the result of any illegal arrest, even assuming that the arrest were unlawful in the first instance, any taint would have sufficiently attenuated and would have made the confession proper in this case.

I just like to say that in this particular matter, I do not think that there could ever be a case presented to this Court in which the waivers that around this record, the waivers that had been introduced in Court and the conduct of these officers that are on the record here could be anymore admirable than is here.

The waivers are crystal clear, razor clean.

The behavior of Detective Hill, I think is without question, that of an officer showing respect for Miranda.

The question came from the bench earlier as why the rights were given twice.

I think that the reason could be.

if we hearken back to Miranda itself, I think that Miranda in this case has taught the police officers to give the rights.

Those rights were fully complied with here and we would ask this Court to reverse the Michigan Court of Appeals.

Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.