VERMONT v. COX

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ORAL ARGUMENT OF SUSAN R. HARRITT, ESQ. ON BEHALF OF PETITIONER

Chief Justice William H. Rehnquist: Ms. Harritt, you may proceed whenever you're ready.

Mr. Harritt: Thank you.

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

This cause is before this Court on a writ of certiorari from a decision of the Vermont Supreme Court.

That Court erroneously held that this Respondent's Fifth Amendment privilege against compulsory self-incrimination was violated by the state's pre-sentence investigative process.

At the pre-sentence investigation interview, where the Respondent was given the choice of participation or not, the Respondent made statements that the Judge considered at the later sentencing hearing.

The Vermont Supreme Court also committed error beyond the compulsion decision when it mistakenly relied on Estelle v. Smith and held that the Respondent's sentence had been enhanced despite the fact that Respondent's exposure to his criminal responsibility remained the same as his exposure following his nolo contendere pleas.

The state's court's decision improperly extended the Fifth Amendment privilege against compulsory self-incrimination on these facts and created an unwarranted obstacle to the individualized sentencing process.

Turning briefly to the facts, the record reveals that the Respondent entered three pleas of nolo contendere at a change of plea hearing, at which time the Court ordered a presentence investigation report.

This order was made in the presence of counsel and Respondent, pursuant to Vermont practice.

Unidentified Justice: Ms. Harritt, does the record indicate whether either the Court or the probation officer told the Respondent the purpose of the interview?

Mr. Harritt: No, the record doesn't indicate whether or not the Respondent was told by the Court or the probation officer.

However, the purpose of the interview is clearly spelled cut in both criminal rules as well as the statutes in addition to Vermont practice.

The pre-sentence investigation report, in fact, follows a prescribed format that is known to all practicing... persons... pardon me... practicing criminal law and certainly since the attorney for Respondent was a public defender, the format was not a surprise to her.

Unidentified Justice: Well, does the record indicate whether the public defender had notice of the time that interview would be given?

Mr. Harritt: No, the record doesn't reveal notice as to the precise time when the interview would take place.

However, it's clear from the practice in Vermont that the interview did not take place immediately after the change of plea hearing, and, so, it was, therefore, incumbent on defense counsel to prepare her client knowing the purpose of the report and the fact that the admissions of the Defendant, had he chose to submit to the interview, should be considered.

Unidentified Justice: Ms. Harritt, do we know where Respondent is?

Mr. Harritt: At this juncture, we do not, Your Honor.

Unidentified Justice: This is why we don't have any brief on his behalf, is that it?

Mr. Harritt: Well, you have a brief on his behalf as filed by the--

Unidentified Justice: I know, but there's no brief of his, is there?

Mr. Harritt: --I'm not--

Unidentified Justice: He had fully served his prison term, had he not?

Mr. Harritt: --Yes.

He--

Unidentified Justice: And he was released?

Mr. Harritt: --Yes, that's correct.

Unidentified Justice: And now he's disappeared.

Mr. Harritt: Well, he's left the jurisdiction.

Unidentified Justice: And he could be dead, couldn't he?

What kind of a case do we have here?

Mr. Harritt: Well, we submit that the case--

Unidentified Justice: A dead case.

Mr. Harritt: --Well, I would respectfully disagree, Your Honor.

We don't believe the case is dead.

The order of the Court below indicated that the decision should be reversed, sentencing should take place with a new report prepared, and with the prospect of new sentencing, the Respondent faces a number of alternatives, one of them being the opportunity--

Unidentified Justice: How can you get him back here if he served, fully served his prison sentence?

Has he?

Mr. Harritt: --The order of the lower court, Your Honor, indicates that he is to be re-sentenced.

There is a benefit and I'm sure--

Unidentified Justice: After he's fully served the sentence that was initially imposed, is that right?

Mr. Harritt: --That's correct.

Unidentified Justice: And now they can bring him back for resentencing?

Mr. Harritt: Well, that's because he might... if he is re-sentenced, he could face not just a lower sentence, but a deferred sentence which, if he were to satisfy the conditions of the deferred sentence, his conviction would be expunged, thereby avoiding any collateral consequences that attend conviction.

Unidentified Justice: But he's the one that has to initiate taking advantage of that option, doesn't he?

Mr. Harritt: Well, the Court, lower court,... there is now a lower court order which mandates that there be resentencing in this case.

Certainly, the state intends to try to obtain his whereabouts and return him to the jurisdiction.

Unidentified Justice: Well, how are you going to return him?

How can you force his return?

Mr. Harritt: Well, it's--

Unidentified Justice: If he's outside of the state?

Mr. Harritt: --Well, it's in his interests to return.

Unidentified Justice: Why is it?

He served his term.

Mr. Harritt: Well, that's true, but I'm sure the Court would agree that if the conviction was expunged for these... if there was no record of these convictions, he would be put in a much better position.

He would have--

Unidentified Justice: Yes, but aren't you overlooking something?

If he comes back in and says please sentence me again, is it not possible that he could get a longer sentence?

Mr. Harritt: --Well, that's an option.

Unidentified Justice: Do you think a lawyer would advise him to come back, saying I realize you've served your sentence, but if you take a shot at getting the whole thing expunged, of course, you might have to spend another year in jail, but what do you want to do?

Can you imagine a lawyer asking for that risk, after he's served his sentence, to go back in and take a chance at getting exposed to another sentence?

Mr. Harritt: He certainly runs that risk, but our understanding of the mootness doctrine is... would have this Court rule on the merits of the case because there still is a controversy.

There is an opportunity or a benefit that could be obtained by the Respondent.

He may not obtain that benefit, but it exists nonetheless.

Unidentified Justice: What benefit can you get out of winning this case, except an opinion that you would like?

I understand the rule of law would be something that interests you.

But as far as your fight with this Defendant, what are you going to get that you haven't already gotten?

Mr. Harritt: Well, we would like the opportunity to have the case resolved, and we would like the sentence not vacated--

Unidentified Justice: Will you ask for a more severe sentence if he comes back?

Mr. Harritt: --Well, the Attorney General's office was not the prosecuting entity.

A different--

Unidentified Justice: If you don't, you don't have any interest in the outcome of the case.

Mr. Harritt: --What I'm--

Unidentified Justice: You don't want to have to go about complying with the order, do you?

Mr. Harritt: --I'm sorry, Your Honor?

Unidentified Justice: You're under an order, aren't you?

Mr. Harritt: Yes.

Unidentified Justice: Well, you don't want to have to comply?

They can't comply.

Well, I know, but there's the order.

There is the order.

What are you going to do about it?

Mr. Harritt: Well, if this Court were to--

Unidentified Justice: Extradite him?

You can't extradite him.

Mr. Harritt: --Well, we might be able to obtain his whereabouts.

Unidentified Justice: Is he on parole, by any chance?

Mr. Harritt: No, he's not on parole, Your Honor.

Unidentified Justice: He's been released?

Mr. Harritt: Yes.

He has... incidentally,--

Unidentified Justice: I still don't understand.

How can you force him back to the state?

Mr. Harritt: --Well, if he were to return to the jurisdiction, he certainly would--

Unidentified Justice: If he were.

He'd be a wise man to return, wouldn't he?

Mr. Harritt: --Well, he runs--

Unidentified Justice: You would have him committed to an insane asylum.

Mr. Harritt: --I would like to continue with the facts, if I may.

At the change of plea hearing, the pre-sentence investigator report was ordered, and as I've stated, counsel and the Respondent did have notice and opportunity to consult concerning whether or not the Respondent should submit to the interview and they also had a chance to confer concerning its scope and application to the sentencing process.

At a later unspecified time, the probation officer arrived at the Correctional Center where the Respondent was incarcerated and attempted to start the interview.

At that time, the Respondent sought to postpone the interview asking that the probation officer wait until the arrival of the defense investigator.

At that juncture, the probation officer indicated that she could not wait but that the Respondent had the choice of continuing in the absence of the defense investigator or foregoing the interview at that time.

Unidentified Justice: Does the record show why she couldn't wait?

Mr. Harritt: No, there is not a specific explanation given for that.

Unidentified Justice: Wouldn't have taken very long, would it?

Mr. Harritt: We don't know that, Your Honor.

Unidentified Justice: Well, the investigator was on the way, wasn't he?

Mr. Harritt: That's what was stated, but we, of course, don't know whether he would have arrived in ten minutes or in two hours.

Turning to the compulsion argument, it's clear that the Court must find compulsion in order for the privilege against self-incrimination to have been violated.

There is no compulsion in this case.

The Respondent was Given the option of going ahead with the interview or foregoing the interview.

The probation officer made no threats concerning whether or not if he exercised the choice some dire consequence would attend.

Unidentified Justice: And you say that is not coercion of any kind?

Mr. Harritt: No.

It certainly put the Defendant to a choice, but it's not coercion.

Unidentified Justice: How would you feel if you were incarcerated and this was thrown at you?

Would you feel that you were a little pushed at all?

Mr. Harritt: Well, it's a choice.

There are certainly weighty decisions that all persons make when they're involved in the criminal process, and I'm sure it would give me some reason to pause, and I would try to consider my options, but I don't think--

Unidentified Justice: Well, it certainly is a little different than the ordinary day-to-day decisions.

He was incarcerated.

Mr. Harritt: --We don't think that his situation as an incarcerated individual created any additional pressure or coercion.

Unidentified Justice: Just like you and I living outside?

Mr. Harritt: Well, the individual had been at the Correctional Center for a few months.

He had had the opportunity to confer with counsel, to decide whether or not to submit to the interview process in the first place, and the probation officer said, if you'd like to go ahead now,--

Unidentified Justice: But the record doesn't tell us whether the Defendant was ever told about the purpose of the interview or whether he could participate in it or not.

Mr. Harritt: --Well, it--

Unidentified Justice: Does it?

Mr. Harritt: --It doesn't, but we submit that--

Unidentified Justice: Does the record tell us anything about the purpose of the state in refusing to wait or why it put the Defendant to the immediate choice it did?

Mr. Harritt: --No, the record doesn't speak to that, Your Honor.

Unidentified Justice: Does the State of Vermont law make it optional with a defendant to participate in a PSI interview?

Mr. Harritt: Yes, it does.

The criminal rules permit the Court to dispense with the pre-sentence investigative report if the defendant or respondent does not wish to participate.

So, that was certainly his option.

It would be unreasonable for the Defendant to have assumed that there would be a penalty here.

He lost nothing because there are alternative means by which he can put forth a picture of who he is, so the Court can consider his mitigating characteristics at sentencing.

As this record demonstrates, defense counsel submitted written affidavits from the victims, and there is nothing in the rules that precludes even the submission of a written statement from the Defendant himself.

So, there clearly exists documentary roots by which material can be presented for the Court's consideration at sentencing.

Additionally, the rule provides for an opportunity for allocution, both from defense counsel as well as the Respondent, and at the sentencing hearing, Respondent can rebut the accuracy of any material that is conveyed in the presentence investigation report.

Unidentified Justice: Can I ask you... I'm sorry to interrupt your argument on the merits, but is it correct, the Respondent had already served his sentence at the time the case was decided by the Vermont Supreme Court?

I noticed their decision was in 1986, which it seems to be about three years after the sentencing date.

Mr. Harritt: I am not certain, Your Honor.

At the time that the case was briefed, I think he was still serving his sentence, but I'm not certain.

Unidentified Justice: His sentence was eighteen months, wasn't it?

Mr. Harritt: Yes, with credit for time served.

Unidentified Justice: And he was sentenced in 1983, I think.

Mr. Harritt: He was sentenced in January of 1984, if I'm not mistaken.

Unidentified Justice: January of '84.

So, then, by October of '86, he would have served his sentence.

Does the Vermont Supreme Court have jurisdiction as a matter of state law to render advisory opinion or do they have the same kind of doctrine we do?

Mr. Harritt: I think it's similar to this Court, Your Honor.

Unidentified Justice: It is.

Mr. Harritt: Since the Respondent had the opportunity to forego participation at the pre-sentence interview and had these alternative means by which he could supply the Court with a picture of who he was, it was unreasonable for the Respondent to assume, even if he did assume, and there is the absence of an assumption on his part, on the record, that he would incur a substantial penalty if he chose to forego the interview, we believe the state court's decision in regard to the compulsion aspect of this case is clearly erroneous as a result.

Moreover, in order for there to be a situation of compulsion, the Respondent must assert his privilege against compulsory self-incrimination in a timely fashion, absent certain exceptions.

Respondent may assert that one of those exceptions attends here; that is, the one relating to custody.

Petitioner respectfully suggests that in this instance, given the purpose of the pre-sentence investigator report and the comments that were made to Respondent at the Correctional Center, that this is not a situation involving custody, so as to excuse the assertion of the privilege.

Unidentified Justice: What was the maximum sentence he could have gotten?

Mr. Harritt: Originally, Your Honor, he was charged with a felony count that carried a twenty-five year maximum.

Unidentified Justice: When do you deliver the maximum?

Mr. Harritt: Well, he entered pleas of nolo contendere to reduce charges of simple assault, which carried a one-year maximum.

So, instead of receiving one year for each count, he received nine months.

Unidentified Justice: And how many... well, how many were the maximum number of months he could have gotten?

Mr. Harritt: He could have gotten thirty-six months, if my mathematics are correct.

Unidentified Justice: So, were arguing about two years.

Mr. Harritt: The reason this is not a situation involving custody is that despite his residence at the Correctional Center, he was told by the probation officer that he did not have to participate at the interview.

Certainly, this is a situation where his will was not overborne.

He was given the opportunity to participate in an interview which would give him a chance to put forth his point of view or he could forego the interview and rely on other means later for presenting his mitigating characteristics.

Certainly, this should not be a situation given the philosophy underlying Miranda to warrant the exception to the assertion of the privilege.

Unidentified Justice: But he had asked for counsel?

Mr. Harritt: No, Your Honor.

He had asked that the interview be postponed until the arrival of the defense investigator.

Unidentified Justice: But I thought the Vermont Court found that that was a request for counsel.

Mr. Harritt: It would appear that they did, Your Honor, but we submit that that was an erroneous determination.

Certainly, this Court has--

Unidentified Justice: We don't have that question before us here, do we?

Mr. Harritt: --Well,--

Unidentified Justice: I thought we just had to assume that was correct.

Mr. Harritt: --The Respondent has filed or asked this Court to enlarge the scope of the examination by raising the Sixth Amendment claim.

So, that question may be before you, Your Honor.

Unidentified Justice: Have they responded to that?

Mr. Harritt: Yes.

In his brief, he has asserted his Sixth Amendment claim.

Unidentified Justice: I thought we didn't have his brief.

Mr. Harritt: His cause here--

Unidentified Justice: Has the Respondent himself, the now-missing Defendant,--

Mr. Harritt: --No.

The now-missing Defendant did not file a brief with this Court.

Moving to the incrimination aspect of the privilege against self-incrimination, we would ask this Court to consider our argument under the heading of Enhancement.

We submit that even if the Court found both compulsion and excuse the failure to assert the privilege that the Respondent suffered no incrimination.

By incrimination, the state means an enhanced penalty.

The privilege is violated when a witness is compelled or a respondent to testify against himself and the result is exposure to a penalty or to some criminal responsibility.

Here, by pleading nolo contendere, Respondent faced particular terms of imprisonment and/or fines, and when he entered his pleas, he would be sentenced in the Court's discretion at the sentencing hearing.

His exposure remained the same whether or not he participated at the pre-sentence investigation interview.

In the absence of some enhanced penalty, we submit that unlike the situation in Estelle v. Smith, it was wrong for the Court to conclude that the Respondent's sentence had been enhanced where the Government had no burden of proof and where there is no additional element that had to be required prior to the imposition of sentence.

If there are no further questions at this point, I wish to save the remainder of my time for rebuttal.

Chief Justice William H. Rehnquist: Very well, Ms. Harritt.

We will hear now from you, Mr. Larkin.

Mr. Harritt: Thank you.

ORAL ARGUMENT OF PAUL J. LARKIN, JR., ESQ. AS AMICUS CURIAE SUPPORTING PETITIONER

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

I would like to start, first, by addressing a point Justice Blackmun raising.

It's true, Your Honor, that a person in prison is in a different situation than a person who is at liberty and then taken into police custody.

Unidentified Justice: I am glad to hear you admit it.

Mr. Larkin: There is no question the restraints a person suffers in prison or in jail are quite real and quite tangible, but the fact that he is literally in custody in that sense, we do not believe requires that the Court automatically hold he's also in custody for Miranda purposes.

When a person in the words that Miranda used is "swept from a friendly environment" into a hostile environment, dominated by police, he is in a position which there is a risk, Miranda believes, a great risk, Miranda believes, that he will be subject to trickery or intimidation or other types of ploys that would work on his free will.

Unidentified Justice: So, if he's already there to begin with, the situation is different?

Mr. Larkin: It's not necessarily the same.

There are circumstances, of course, and we freely recognize it, in which a person in prison would also be in... yes, we would not say that the decision in the Mathis case automatically mandates Miranda rulings, excuse me, Miranda requirements for every prisoner before he is questioned in custody.

Unidentified Justice: You are going to tell us what the difference is here?

Mr. Larkin: The difference, we believe, is this: the restraints that a person has on him in custody imposed the background environment in which he must live, but those restraints are not of the type that would necessarily in every case lead a person to believe that he had no alternative but to confess when he is confronted with someone who is asking him questions.

That is the situation that Miranda faced and that is the situation to which Miranda addressed its warnings.

A person who is questioned about an unsolved crime in the basement of a police station house not only has a restriction on his freedom of movement, but he also has a dislocation that accompanies the change in the environment from which he was into the one he is in now, and there is also the insinuation by the inquisitor that the questioning will not cease until a confession is obtained.

Those factors are not necessarily present in every type of prison questioning.

For example, here, the only course or factor that the Vermont Supreme Court pointed to was the fact that Respondent may forfeit the opportunity to engage in the interview with the probation officer.

That factor tends to indicate that the Vermont Supreme Court and Respondent saw the interview not as a burden but as an opportunity.

Not as a burden in which he had to fend off police efforts to try to get him to incriminate himself, but an opportunity to persuade the probation officer to write a favorable report.

In addition, as the Court recognized in Minnesota v. Murphy, one of the risks associated with questioning a person in custody is that the questioning may lead the person to believe that he has no free will to decide not to answer a question, that it will go interminably.

That wasn't the situation here.

From the record and from the opinion below, the probation officer gave the Respondent the opportunity to decide whether to go forward with the interview at the appointed time in the absence of legal representation or to forego the interview at all.

Now, that may be a difficult choice for someone in Respondent's position to make.

Unidentified Justice: Kind of an unnecessary choice, too, isn't it?

Mr. Larkin: Not necessarily, Your Honor.

We don't know the reason why.

Unidentified Justice: Well, who has the burden of demonstrating the reason?

Maybe she had an appointment to fix her hair or something.

Mr. Larkin: We would believe that since Miranda establishes an exception from the general rule that all relevant evidence is admissible, the burden of showing that Miranda is applicable should be on the person invoking that exception.

In other words, the Defendant would normally, we believe, have the burden of establishing that he war in custody and, in this case, the only factor that Vermont pointed to to show that he was in custody was he might forfeit this opportunity.

That doesn't seem to us to be comparable to the type of questioning that Miranda was addressing.

Respondent,... an amicus in support of Respondent, rather, have pointed to the fact that the questioning was performed by someone who is outside the normal prison environment.

It wasn't a guard.

It wasn't a therapist.

It was a probation officer.

But that fact also does not necessarily amount to the type of compulsion that Miranda was designed to deal with.

It is true, he had a difficult choice to make, but the fact that he had a difficult choice to make--

Unidentified Justice: Mr. Larkin, would you defend a rule that said that we will have these interviews for a person's presentence report without counsel only and if the defendant wants counsel, he can't have the interview?

Would that be a permissible rule?

Just as a general state policy.

The only way they will have them is without counsel, it's up to the defendant to decide whether to take advantage of it or not.

Mr. Larkin: --Well, it's not a rule that would arise in the Federal system because--

Unidentified Justice: I understand.

Mr. Larkin: --the probation office does object to it.

Unidentified Justice: That's, in effect, what happened here because he had asked for a lawyer and she said... you acknowledge it's the equivalent of asking for a lawyer, I think.

Mr. Larkin: Yes.

We have taken the position and the state disagrees.

Unidentified Justice: And that is considered irrelevant as a matter of law?

Mr. Larkin: We don't think forcing him to that choice, even if that was that type of rule, would violate his Sixth Amendment right, If there was a violation, what it would amount to is a violation of perhaps his right whether to go forward with allocution or something along those lines.

Unidentified Justice: If there is no constitutional right to a lawyer at an interview of this kind, basically?

Mr. Larkin: No.

He would have a constitutional right to have his lawyer present if he wanted, but it's not unlawful to force him to make this type of choice.

If he wants to have the attorney present and--

Unidentified Justice: You say he would have a constitutional right to have a lawyer present?

Mr. Larkin: --We believe that this would be a critical stage of the proceedings The state disagrees with that.

If he wants to have an attorney present in the Federal system, the probation office doesn't object.

Unidentified Justice: Yes.

Right.

Mr. Larkin: But it is not unlawful, we think, to put him to a choice like this.

This isn't the type of attempt to circumvent his right to counsel that the Court has had in the other types of right-to-counsel cases, like Messiah or like Henry or like Moulton.

There was an attempt to avoid--

Unidentified Justice: You either go ahead without the lawyer or you don't have it.

Why isn't that circumventing the right to have a lawyer present?

Mr. Larkin: --Because they were open and up front and put all their cards on the table.

They didn't... for whatever reason, the probation officer said, according to what we know, that we will have the interview now or if you want your lawyer present, we'll have to forego it.

That doesn't mean he didn't have an opportunity to speak to the Judge.

He had a right of allocution.

It doesn't mean he didn't have an opportunity to speak to the probation officer because we know from the--

Unidentified Justice: He did not have the opportunity to have a pre-sentence interview with the lawyer present.

Mr. Larkin: --At that time.

Even if there were an absolute rule--

Unidentified Justice: Or at any other time because she said it's either now or never.

Mr. Larkin: --Even if they had adopted that rule, we would say that it would not violate his Sixth Amendment right.

Of course, there's some reason to doubt that that was actually the rule because actually what happened here, because at page 14 of the--

Unidentified Justice: That's this case.

That's this case.

You can either forego the interview or... you can either forego a lawyer or the interview, can't have both.

Mr. Larkin: --On those facts, we would say it would not violate his Sixth Amendment right to counsel.

If it violated anything, it would be a right to present evidence at sentencing.

So, it may be a different circumstance in the type of situation we had here where he's being interviewed outside of the actual allocution stage and when he would be in court, if the judge said you can talk now or wait till your lawyer shows up.

Unidentified Justice: But I thought you said you agreed this was a critical stage of the prosecution?

Mr. Larkin: Yes.

We would say that he would have a right, if he demanded to have his lawyer there, not to be questioned in the absence of the lawyer, but they didn't question him--

Unidentified Justice: But you're defending the state's right to say we can force you to go through the critical stage of the prosecution.

If you want to have the benefit of a critical stage of the prosecution, you must have it without a lawyer present.

That's what you're saying.

This isn't a required interview.

Mr. Larkin: --That's right.

I mean, he could have foregone the interview entirely, and if he wanted the lawyer present, he could demand it, but it does not, we think, violate the Sixth Amendment to offer him the opportunity to go forward in the absence of his lawyer, which is essentially what happened here.

Now, the Sixth Amendment issue is not one that was addressed--

Unidentified Justice: To require somebody to do something in the judicial process without a lawyer does not touch the Sixth Amendment?

Mr. Larkin: --No, we didn't say that.

He wasn't required.

He wasn't required to go forward with the interview.

He was given the option.

He was given the option of using that time to help persuade the probation officer that he deserved probation or some other lighter sentence or to abandon that opportunity at that time and talk to the probation officer.

I mean, there is evidence in the record, for example, at page 14 where it indicates that the probation officer called the Defendant later to verify an allegation that was made by someone else that would go into the pre-sentence report, the allegation being that the Respondent was a member of a gang.

So, it doesn't necessarily seem that this was a now or never situation even with the probation officer.

Unidentified Justice: Supposing it was a trial, he wanted to put on his defense, he says my lawyer isn't here yet, the judge said you either put on your defense by yourself or you can't put on a defense, would that be a fair choice for a critical stage?

Mr. Larkin: No.

The trial is--

Unidentified Justice: That's an even more critical stage.

That's the point.

Mr. Larkin: --It is quite a different stage entirely.

Unidentified Justice: The difference there, I take it, is that you would say you have to give the man a trial.

You don't have to give him this opportunity.

If you give it to him, it's critical, but there's nothing in the law that requires you to give him this allocution.

Mr. Larkin: There is nothing that requires a presentence report be conducted.

There's nothing that requires that an interview with the Respondent be part of the presentence investigation.

Unidentified Justice: So, the failure or the refusal to go ahead without a lawyer, you say, if it violates anything, doesn't violate the Sixth Amendment but some right to having that interview--

Mr. Larkin: That's right.

Unidentified Justice: --just as in the trial case just given, if there were any violations, what you would have been deprived of was not your right to a lawyer but your right to the trial.

Mr. Larkin: That's right.

Unidentified Justice: This is a Fifth Amendment case.

Mr. Larkin: It is primarily a Fifth Amendment case, and that's the only issue that was addressed below.

Chief Justice William H. Rehnquist: Thank you, Mr. Larkin.

We will hear now from you, Mr. Hinton.

ORAL ARGUMENT BY HENRY HINTON, ESQ. AS AMICUS CURIAE, BY INVITATION OF THE COURT SUPPORTING JUDGMENT BELOW

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

The decision of the Vermont Supreme Court in this case is correct on at least two separate grounds.

First, the Court's finding of a Fifth Amendment violation, that is, improper compulsion to give up the right to remain silent, correctly decides that Mr. Cox was required by the probation officer unnecessarily to give up a right recognized by the Vermont Supreme Court that he had to make the important decision about participating in the pre-sentence investigation interview whether to participate, whether to not participate, or to what extent to participate, only after consultation with counsel.

Because Mr. Cox was told by the probation officer that he could not make a counsel but only an uncounselled decision about participation in the interview, a choice which wasn't even a correct statement, much less a legitimate statement of his options under state law, his disclosure--

Unidentified Justice: Wasn't a correct statement of his options under state law... why didn't the Supreme Court of Vermont go on that ground rather than raising a federal constitutional question?

Mr. Hinton: --I think they felt that depriving, Mr. Chief Justice, depriving him of a state law benefit, if it be only a state law benefit to have the right to counsel before being required to participate in the pre-sentence investigation interview, was a valuable state benefit, and as this Court has held in its Fifth Amendment penalty cases, when you seek to retain a valuable, albeit state-created benefit, and the Government says you're going to lose that benefit, if you claim the Fifth Amendment, then the Court has found that that is compulsion.

It makes a choice in the face of that choice to speak involuntary.

Unidentified Justice: I hadn't read the Supreme Court of Vermont opinion quite that way.

Mr. Hinton: Well, I think that is at least a permissible reading.

I do argue that there is a Sixth Amendment violation directly here as an alternative affirming ground.

Unidentified Justice: Well, I guess the Court below didn't address that at all, did it?

Mr. Hinton: The Sixth Amendment?

No, no, Your Honor, the Court didn't decide the case on any basis, any federal basis, other than the Fifth Amendment.

The fact that the State of Vermont uses the presentence investigation process at all, I think we can concede, is a decision that they would have to undertake as a matter of federal constitutional law or possibly as a matter of federal constitutional law, they wouldn't have to say that in order to be given a valid opportunity, you have to be able to give the counsel an opportunity to participate in the process.

But even if these rights are only guaranteed by state law, that doesn't lessen the impropriety of conditioning the right, the federal right to remain silent on giving up these state benefits.

In the Court's other cases, holding that states may not condition exercise of Fifth Amendment rights on forfeiture of a benefit, the benefit is typically state-created, the right to employment as a police man or sanitation worker, the right to bid on and to get government contracts, or the right to hold political office.

The Solicitor General and the State of Vermont seem to argue that this right isn't very important, that it's minimized as a right that isn't important or isn't that important, so that to lose that right amounts to compulsion to speak.

Well, the ABA Standards in the Vermont Court's own decision, I think, as well as its rules and its practice indicate that most people think that for a defendant who has been convicted, there is nothing more important than a presentence investigation report and possibly there is nothing more important about that report than what the defendant does in response to his opportunity to offer a statement or decline a statement to that report.

Unidentified Justice: Well, all he was coerced into doing was attending the pre-sentence interview, right?

He wasn't coerced into saying anything that would be against his penal interests, was he?

He could have attended the interview and only said nice things about himself, couldn't he?

Mr. Hinton: That's correct.

Unidentified Justice: Was there any coercion to provide any incriminating statements about himself?

Mr. Hinton: There was coercion for him to seize the opportunity to make a statement, I maintain, and the only opportunity offered him because he was told by the probation officer that he would never have another chance, he made, we contend, an ill-advised decision without counsel to offer material that counsel well and probably should have advised him not to give.

Unidentified Justice: Well, that relates to the counsel violation, which is a different one.

I mean, I understand that had counsel been present, he might not have answered some questions the way he did answer them.

But, still and all, he was not... there was no coercion for him to make any incriminating statements.

There was only coercion for him to go to the pre-sentence interview.

Isn't that an accurate statement?

Mr. Hinton: I think that being told that you would never have another chance, incorrectly told that he would never have another chance because the Vermont Court said, in fact, that wasn't an appropriate choice to put him to, was coercive in that--

Unidentified Justice: Coercive of what?

Coercive of his going to the interview?

Mr. Hinton: --And, also, when there, Your Honor, I think--

Unidentified Justice: But he could have gone to the interview and said, you know, just nice good things.

Was there any coercion for him to make an incriminating statement or to provide evidence against himself?

Mr. Hinton: --The coercion was the loss of the opportunity to make a decision whether to offer any sort of material with counsel.

He would have, in any scenario, had to make a decision at some point whether to participate or not.

We're not arguing as the State and Solicitor General suggests against the necessity of having to make a choice.

What we're arguing against is the necessity to have to make an uncounselled choice and that inappropriate pressure put on him by the requirement of that choice, we contend, contributed to his decision to speak ill-advisedly.

Unidentified Justice: Mr. Hinton, as a matter of practice in these Vermont pre-sentence investigations, I take it would you say ordinarily a defendant does attend with counsel?

Mr. Hinton: My understanding is that there's no rule in Vermont that says that you can or cannot.

My knowledge of the situation is that sometimes counsel does attend, sometimes counsel confers with the individual and decides to let the defendant go on his own.

Unidentified Justice: From what you know, is it customary for a lawyer to sit there and then the probation officer to ask questions and the lawyer to advise the defendant not to answer on the grounds it might incriminate him?

Mr. Hinton: I am not aware if that is commonly done or usually done.

Unidentified Justice: It strikes me that whatever the abstract constitutional right of the situation may be, this is not a very good way for a defendant to get a favorable pre-sentence report.

Mr. Hinton: As a matter of fact, I think, Mr. Chief Justice, you might be correct.

I think that it might be decided and maybe in many cases would be decided that the best way to prepare for this is to confer maybe beforehand and then, in part, to suggest to the probation officer that the defendant isn't trying to somehow shield himself with counsel to have a defendant go on his own.

In this case, the Vermont Supreme Court found that although I don't see a problem in the usual case in having counsel present during the interview and the Vermont Supreme court didn't seem to think it was a problem, in this case, what defense counsel asked for or said we were seeking to do and it was short-circuited, was the right to confer.

Mr. Cox said he didn't want to talk to the probation officer until the investigator for the defense counsel's office arrived.

It wasn't clear that he necessarily wanted that person to participate and be with him throughout or only to give him some information beforehand about what--

Unidentified Justice: And this is the equivalent of counsel in the views of the Vermont Supreme Court, an investigator from the defense counsel's office?

Mr. Hinton: --For the purposes of Fifth Amendment argument, I think that they certainly feel like and have decided that the investigator at least should have a right to investigate.

They don't view that as being anything less important in this case than counsel.

For the purposes of looking at it as a federal question, whether a request for an investigator is a request for counsel, I've argued that primarily in contrast to a few other cases, the Fare case and a 7th Circuit case, Franzen, that just as in those cases, asking for probation officer shouldn't be something that automatically equates to seeking to remain silent or seeking an attorney; asking for defense investigator should be treated that way.

Unidentified Justice: We've never held that, have we?

Mr. Hinton: No, Your Honor, you've never held that.

I essentially would maintain that unlike Fare and Franzen, where the probation officer clearly is not, as this Court has held in Minnesota v. Murphy, is not only a friend, but also maybe a person with adverse interests to the defendant, a defense investigator under Vermont law has... is, under the rules of Vermont evidence, considered a representative of the attorney and comes within Evidence Rule 502 as a person who has privileged communications.

Also, as Vermont public defense system uses defense investigators, they're paralegals.

They're trained in advising.

Unidentified Justice: Why do you need a lawyer?

It's not sworn testimony.

You use hearsay.

You use toilet paper written on.

You use anything.

Am I right?

Mr. Hinton: I think that's correct, that the rules of evidence don't apply at sentencing.

Unidentified Justice: Don't apply to the probation report.

The probation officer goes around and talks to the bartender.

Mr. Hinton: The probation... well,--

Unidentified Justice: He talks to anybody.

He doesn't need a lawyer.

Mr. Hinton: --The probation officer... we're not asserting the right, Justice Marshall, to have the probation officer accompanied by a defense investigator or a lawyer in all of his or her investigative efforts.

Unidentified Justice: Well, why do you need it with your client?

Mr. Hinton: The reason is that's a confrontation between the accused and an agent of the state in which, as happened in this case, the accused can, through inadvertence or lack of knowledge, incriminate himself.

Unidentified Justice: And can also get himself a low sentence.

Mr. Hinton: That's right.

Client stands to possibly benefit or possibly disadvantage him or herself in that context.

In this particular case, Mr. Cox obviously disadvantaged himself in that context.

Unidentified Justice: Well, merely incriminating himself isn't enough to make a Fifth Amendment case.

You've got to have some compulsion.

Mr. Hinton: That's correct.

Unidentified Justice: And in the usual arrest and interrogation situation, where counsel isn't present, the impression the officers give is that we're going to keep you here till you answer, and that's what triggered the right to have counsel present.

But, here, it's just the opposite, if you don't want to stay here, take off.

Mr. Hinton: That's correct, Your Honor, and I don't maintain that you have to presume as in the Miranda context in this case compulsion.

I maintain that there was, in fact, compulsion here based on the probation officer's choice put to Mr. Cox that he would lose the chance to make an informed decision, which the Vermont Court said he had the right to, without participation or declining to participate.

Unidentified Justice: Well, he could make his choice, which is worse for him, being quiet or speaking, and that's the kind of choice that people have to make at trial all the time.

Mr. Hinton: That is the kind of choice people have to make at trial.

I think the McGautha v. California decision indicates that there's a lot of hard choices.

All we're asking for in this case or all we're complaining about isn't the necessity to make a choice, but the necessity to make a choice without advice.

Unidentified Justice: Well, it seems to me that's just your Sixth Amendment claim, not the Fifth Amendment claim.

That the Fifth Amendment claim, I find hard to see what the coercion is, but I understand what you're arguing about is the... being forced to make the decision without advice of counsel about whether to speak or not, whether to participate or not, and that would be a Sixth Amendment claim, right?

Mr. Hinton: That's correct, but the way the counsel issue, Justice O'Connor, fits into the Fifth Amendment argument is that even if you assume that there is no Sixth Amendment right to counsel conferred by the federal Constitution, which we maintain there certainly should be a critical stage like a PSI interview, but even if you assume there's not, there's a Vermont law right to confer with counsel which the probation officer in this case did not respect, and because the probation officer offered an alternative or a set of alternatives to Mr. Cox that the law of Vermont doesn't even find to be permissible, he made an unfree, if you will, or a coerced choice when he went ahead and spoke.

Unidentified Justice: Well, the Vermont Supreme Court, though, went to the Fifth Amendment.

Why didn't they just set the sentence aside as violation of Vermont law?

Mr. Hinton: Well, I asked them to, Your Honor.

In a way, I wish they would have.

Unidentified Justice: You argued the case in the Vermont court--

Mr. Hinton: In the Supreme Court of Vermont, but not in the trial court.

Unidentified Justice: --Well, was your office, what is it, the--

Mr. Hinton: The Defender General's office?

Unidentified Justice: --Yes.

Was that in at the trial stage?

Mr. Hinton: The public defender in Burlington, the public defender office, represented Mr. Cox at trial and then at the--

Unidentified Justice: Did it represent him at the time of this interview with the probation officer?

Mr. Hinton: --That's correct.

They were counsel for him at that time.

Unidentified Justice: But we don't know whether or not they advised him to act as he did when he submitted--

Mr. Hinton: From the record, we only know that since counsel claimed that she didn't get an adequate opportunity to advise Mr. Cox and unlike what counsel for the State of Vermont represented, we can't assume from this record that there was some period of time after the guilty pleas or the nolo pleas or some reasonable period of time before she showed up for the interview.

We don't know that.

We don't know but what that--

Unidentified Justice: --Tell me, you were not amicus in the Vermont Supreme Court, were you?

Mr. Hinton: --I am only amicus in this Court, Your Honor.

No.

I'm amicus for my own client, essentially here, because I'm not able to find the man and was unable to have him sign an informal pauper's affidavit and--

Unidentified Justice: And you can't find him because he served his sentence and he beat it?

Mr. Hinton: --He's gone from Vermont.

I don't know where he is.

I had the same investigator try to find him.

Unidentified Justice: Would it be good sense for him to come back to Vermont after he served his sentence?

Mr. Hinton: I think not.

I think the possibilities suggested by the state that he could get a deferred sentence is so unlikely that he would be, I think, foolish to come back.

Unidentified Justice: If he calls you up and says can I come back, I take it you would tell him, if you can make a living somewhere else, please do?

Mr. Hinton: I think that's probably what both I would tell him and probably the prosecuting authorities would be happy with.

Unidentified Justice: Then, why did you press his case in the Supreme Court of Vermont once he had served his sentence?

I gather he had served his sentence before that case was argued.

Mr. Hinton: I can't recall exactly, Justice Scalia, the chronology.

At the time I argued the case, I think some time in 1985, he was still in custody.

It was quite a period of time, and I would have to look back to reconstruct it.

It was quite a number of months between the time it was argued and the time it was decided.

In that interim, I really didn't keep in touch with Mr. Cox.

I tried to get back in touch with him when the decision came down, and I couldn't find him.

Unidentified Justice: If he comes back and commits another crime, he's going to get another sentence, right?

Mr. Hinton: Well, he's going to get sentenced--

Unidentified Justice: I don't think there's any possibility of him coming back.

Mr. Hinton: --I think he'd be foolish to come back.

I agree with you, Justice Marshall.

I think that the possibility of him having the benefit of a deferred sentence is not realistic, number one.

That's a procedure where you're essentially on probation and then if it's completed successfully, you have your conviction expunged.

It can only be offered with the consent of the prosecutor and it's rarely offered to someone like Mr. Cox who independent of these cases that we're here on had a substantial criminal record.

It's usually offered to first offenders.

So, I don't think he's under any inducement really to come back.

Unidentified Justice: If he does come back, though, the state is, on this decision of the Vermont Supreme Court, bound to give him another sentencing hearing?

Mr. Hinton: I think if he presses--

Unidentified Justice: So, it's entirely up to him.

It's conceivable that he could commit another crime in Vermont, be prosecuted under a repeat offender law, at which point it would be very much in his interests to get his first conviction expunged.

Mr. Hinton: --Yes, it would be in his interests, but I think the likelihood of getting a deferred sentence, because he's got a prior record of criminal offenses that existed in other states way before these three simple assaults.

Unidentified Justice: Mr. Hinton, let me ask you a variation of these questions.

Supposing he were to call you up and say I've got lots of money now, so I don't have to have public counsel, how much would it be worth to me to hire a lawyer to defend this judgment, what would you tell him?

Nickel, dime, quarter.

How much interest does he have in the outcome of this case?

Mr. Hinton: Very little.

Unidentified Justice: He doesn't have any, does he?

There's no way in the world he'd go back in and say I want to get re-sentenced, is there?

Mr. Hinton: I can't imagine, unless it was something that if he like negotiated from afar so that he didn't subject himself to anything unless and until it was all worked out and he came to the Vermont--

Unidentified Justice: He certainly would not pay a lawyer a usual and customary rate to argue this case for him, would he?

Mr. Hinton: --I don't think so, Your Honor.

The reason why I think independent of the Fifth Amendment argument, which I think I've presented on the assumption that there is no necessary federal right to counsel at this stage, is that there's a state right to counsel and that was burdened by the choices offered.

But I also think independent of that, this Court should decide that where there's a guilty pleading or nolo pleading defendant or in any case where there's a conviction and there's no sentence that for the pre-sentence investigation process should be subject to the Sixth Amendment only in this respect, and that is in the respect that when the defendant is interviewed, that defendant, just like in post-indictment lineup, he's confronted with agents of the state who can do things, just like in a post-indictment interrogation, he's confronted with agents of the state in which he needs to make those fine distinctions about what may or may not incriminate him, in the same way that what happens at a line-up or what happens at a post-indictment and pre-trial interrogation can seal the fate of the defendant making the trial a formality, the sentencing hearing in the same way can become a walk-through, if the defendant has essentially operated without counsel during his interview with the probation officer.

I think the Court could very well find and given the analogy, I think, to the other processes by which the Court has determined that critical confrontations outside of court between a defendant and the government are... those kinds of things which Sixth Amendment protects, was designed to protect, I think the Court can support the decision of the Vermont Supreme Court strictly on the basis of the Sixth Amendment.

Unidentified Justice: Again, as matter of practice, is it common in a situation like this for a defendant not to participate in the interview with the probation officer?

Mr. Hinton: If the defendant has got a very terrible record and is very unlikely to do anything more than make it worse, I think non-participation would be what would be called for.

Unidentified Justice: And that's the advice that the public defender of Chittenden County would give to somebody like that, I take it?

So, it's a fairly recognized practice in Vermont criminal jurisprudence that a certain number of defendants are not going to participate in these interviews.

Is that what you're saying?

Mr. Hinton: Some... I think that's true.

I'm not sure what the percentages are.

I think some maybe will refuse to participate even if they're advised to participate, but--

Unidentified Justice: Do you think that there's still... do you think we have jurisdiction to decide this case?

Do you think there's still a case for controversy between you and the state?

Is the case moot?

Mr. Hinton: --As a practical matter, I don't think there is--

Unidentified Justice: As a technical matter, is this moot or not?

Mr. Hinton: --As a technical, theoretical matter, it might be.

Unidentified Justice: If we just dismiss it as moot, then the order on the state still stands.

Re-sentence him.

It may be that they still have to contend with that order.

Mr. Hinton: Well, they have the order outstanding.

Unidentified Justice: I know, but you don't think it means very much as a practical matter.

Mr. Hinton: I don't think they have... they don't have to do anything other than worry about it if he comes back.

Unidentified Justice: Well, worry about it now.

They've got an order.

So, you don't think... technically, is it moot or not?

Mr. Hinton: I think that only in the most technical way is it not moot.

Unidentified Justice: Well, mootness is technical in itself.

But is it correct that if he doesn't come back, the state doesn't have to do anything?

They won't be in contempt of any order.

Mr. Hinton: They don't have to grant him a re-sentencing unless he seeks it and--

Unidentified Justice: Would you object to if the state said... want back and asked to be relieved from that order?

Mr. Hinton: --On the grounds of mootness?

Unidentified Justice: Well, just on the ground that you say there's nothing to the case.

Why do you care whether the order is outstanding or not?

Mr. Hinton: I only care if he comes back.

Unidentified Justice: I guess you care enough then.

Mr. Hinton: Well, perhaps--

Unidentified Justice: But you told me that if he came back, he wouldn't ask for anything anyway.

He'd be foolish to ask for anything under the order.

If he asked for your advice, you'd tell him to stay home, wouldn't you?

Mr. Hinton: --Right.

Unidentified Justice: But, then, he wouldn't ask for anything, but if he came back, the police would... the state would pick him up, pick him up and re-sentence him pursuant to this order.

Mr. Hinton: I don't know if they would force a re-sentencing on him if he didn't ask for it.

I really doubt that that would be the case.

Unidentified Justice: The only thing we have is the man is gone.

And has served his sentence.

And has served his sentence.

I don't know what we're all talking about.

Mr. Hinton: Well, it wouldn't bother me if you all were to find this was a moot case, Your Honor.

Unidentified Justice: I know.

I don't blame you.

Mr. Hinton: Thank you.

Chief Justice William H. Rehnquist: Thank you, Mr. Hinton.

Ms. Harritt, you have two minutes remaining.

ORAL ARGUMENT BY SUSAN R. HARRITT, ESQ. ON BEHALF OF PETITIONER -REBUTTAL

Mr. Harritt: Thank you, Your Honor.

I want to leave the Court with this impression, which is that it certainly wasn't a coercive situation.

We have an individual who had had the opportunity to consult with counsel.

It's clear that he made a decision.

He thought that he could score some points and possibly persuade the probation officer that he had a particular personality or mitigating circumstances that he thought should be conveyed in the pre-sentence investigation report.

This Court should not prohibit him from exercising his own judgment.

Rightly or wrongly, we don't think he scored any points, but he thought that he did and he should not be precluded from having that opportunity to make that judgment and present what he thought was in his best interests.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Ms. Harritt.

The case is submitted.

The Marshal: The Honorable Court is now adjourned until tomorrow at 10:00.