Duckworth v. Eagan/Dissent Marshall
Justice MARSHALL, with whom Justice BRENNAN joins, and with whom Justice BLACKMUN and Justice STEVENS join as to Part I, dissenting.
The majority holds today that a police warning advising a suspect that he is entitled to an appointed lawyer only "if and when he goes to court" satisfies the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The majority reaches this result by seriously mischaracterizing that decision. Under Miranda, a police warning must "clearly infor[m] " a suspect taken into custody "that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires." Id., at 471, 479, 86 S.Ct., at 1626, 1630 (emphasis added). A warning qualified by an "if and when you go to court" caveat does nothing of the kind; instead, it leads the suspect to believe that a lawyer will not be provided until some indeterminate time in the future after questioning. I refuse to acquiesce in the continuing debasement of this historic precedent, see, e.g., Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985); New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), and therefore dissent. I also write to express my disagreement with Justice O'CONNOR's uninvited suggestion that the rationale of Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), should be extended to bar federal habeas review of Miranda claims.
* In Miranda, the Court held that law enforcement officers who take a suspect into custody must inform the suspect of, among other things, his right to have counsel appointed to represent him before and during interrogation: "In order fully to apprise a person interrogated of the extent of his rights . . ., it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent-the person most often subjected to interrogation-the knowledge that he too has a right to have counsel present. As with the warning of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of his right can there be assurance that he was truly in a position to exercise it." 384 U.S., at 473, 86 S.Ct., at 1628 (footnotes omitted).
Miranda mandated no specific verbal formulation that police must use, but the Court, speaking through Chief Justice Warren, emphasized repeatedly that the offer of appointed counsel must be "effective and express." Ibid.; see also id., at 476, 86 S.Ct., at 1629 (only a "fully effective equivalent" of the warnings described will pass muster); id., at 444, 86 S.Ct., at 1612 (requiring "other fully effective means"); id., at 467, 86 S.Ct., at 1624 (requiring alternative that is "at least as effective"); id., at 490, 86 S.Ct., at 1636 (stating that "Congress and the States are free to develop their own safeguards for the privilege [against self-incrimination], so long as they are fully as effective as those described above"). A clear and unequivocal offer to provide appointed counsel prior to questioning is, in short, an "absolute prerequisite to interrogation." Id., at 471, 86 S.Ct., at 1626.
In concluding that the first warning given to respondent Eagan, quoted ante, at 198, satisfies the dictates of Miranda, the majority makes a mockery of that decision. Eagan was initially advised that he had the right to the presence of counsel before and during questioning. But in the very next breath, the police informed Eagan that, if he could not afford a lawyer, one would be appointed to represent him only "if and when" he went to court. As the Court of Appeals found, Eagan could easily have concluded from the "if and when" caveat that only "those accused who can afford an attorney have the right to have one present before answering any questions; those who are not so fortunate must wait." 843 F.2d 1554, 1557 (CA7 1988); see also United States ex rel. Williams v. Twomey, 467 F.2d 1248, 1250 (CA7 1972). Eagan was, after all, never told that questioning would be delayed until a lawyer was appointed "if and when" Eagan did, in fact, go to court. Thus, the "if and when" caveat may well have had the effect of negating the initial promise that counsel could be present. At best, a suspect like Eagan "would not know . . . whether or not he had a right to the services of a lawyer." Emler v. State, 259 Ind. 241, 286 N.E.2d 408, 412 (1972) (DeBruler, J., dissenting). 
In lawyerlike fashion, THE CHIEF JUSTICE parses the initial warnings given Eagan and finds that the most plausible interpretation is that Eagan would not be questioned until a lawyer was appointed when he later appeared in court. What goes wholly overlooked in THE CHIEF JUSTICE's analysis is that the recipients of police warnings are often frightened suspects unlettered in the law, not lawyers or judges or others schooled in interpreting legal or semantic nuance. Such suspects can hardly be expected to interpret, in as facile a manner as THE CHIEF JUSTICE, "the pretzel-like warnings here-intertwining, contradictory, and ambiguous as they are." Commonwealth v. Johnson, 484 Pa. 349, 356, 399 A.2d 111, 115 (1979) (citation omitted) (finding inadequate a similar "if and when" caveat). The majority thus refuses to recognize that "[t]he warning of a right to counsel would be hollow if not couched in terms that wou d convey to the indigent-the person most often subjected to interrogation-the knowledge that he too has the right to have counsel present." Miranda, supra, 384 U.S., at 473, 86 S.Ct., at 1627 (footnote omitted).
Even if the typical suspect could draw the inference the majority does-that questioning will not commence until a lawyer is provided at a later court appearance-a warning qualified by an "if and when" caveat still fails to give a suspect any indication of when he will be taken to court. Upon hearing the warnings given in this case, a suspect would likely conclude that no lawyer would be provided until trial. In common parlance, "going to court" is synonymous with "going to trial." Furthermore, the negative implication of the caveat is that, if the suspect is never taken to court, he "is not entitled to an attorney at all." 843 F.2d, at 1557. An unwitting suspect harboring uncertainty on this score is precisely the sort of person who may feel compelled to talk "voluntarily" to the police, without the presence of counsel, in an effort to extricate himself from his predicament:
"[The suspect] is effectively told that he can talk now or remain in custody-in an alien, friendless, harsh world-for an indeterminate length of time. To the average accused, still hoping at this stage to be home on time for dinner or to make it to work on time, the implication that his choice is to answer questions right away or remain in custody until that nebulous time 'if and when' he goes to court is a coerced choice of the most obvious kind." Dickerson v. State, 257 Ind. 562, 276 N.E.2d 845, 852 (1972) (DeBruler, J., concurring in result) (finding inadequate a warning identical to the one in this case).
See also United States ex rel. Williams, supra, at 1250; Schade v. State, 512 P.2d 907, 920 (Alaska 1973) (Boochever, J., concurring). That the warning given to Eagan "accurately described the procedure for the appointment of counsel in Indiana," ante, at 204, does nothing to mitigate the possibility that he would feel coerced into talking to the police. Miranda, it is true, does not require the police to have a "station house lawyer" ready at all times to counsel suspects taken into custody. 384 U.S., at 474, 86 S.Ct., at 1628. But if a suspect does not understand that a lawyer will be made available within a reasonable period of time after he has been taken into custody and advised of his rights, the suspect may decide to talk to the police for that reason alone. The threat of an indefinite deferral of interrogation, in a system like Indiana's, thus constitutes an effective means by which the police can pressure a suspect to speak without the presence of counsel. Sanctioning such police practices simply because the warnings given do not misrepresent state law does nothing more than let the state-law tail wag the federal constitutional dog. 
The majority's misreading of Miranda-stating that police warnings need only "touc[h] all of the bases required by Miranda," ante, at 203, that Miranda warnings need only be "reasonably 'conve[yed]' " to a suspect, ibid. (citation omitted), and that Miranda warnings are to be measured not point by point but "in their totality," ante, at 205-is exacerbated by its interpretation of California v. Prysock, 453 U.S. 355, 101 S.Ct. 2806, 69 L.Ed.2d 696 (1981) (per curiam ), a decision that squarely supports Eagan's claim in this case. The juvenile suspect in Prysock was initially told that he had the right t have a lawyer present before and during questioning. He then was told that he had the right to have his parents present as well. At this point the suspect was informed that a lawyer would be appointed to represent him at no cost if he could not afford one. The California Court of Appeal ruled these warnings insufficient because the suspect was not expressly told of his right to an appointed attorney before and during questioning. This Court reversed, finding that "nothing in the warnings given respondent suggested any limitation on the right to the presence of appointed counsel." Id., at 360-361, 101 S.Ct., at 2809-2810.
In reaching this result, the Prysock Court pointedly distinguished a series of lower court decisions that had found inadequate warnings in which "the reference to the right to appointed counsel was linked with some future point in time." Id., at 360, 101 S.Ct., at 2810. In United States v. Garcia, 431 F.2d 134 (CA9 1970) (per curiam ), for example, the suspect had been informed on one occasion that she had the right to appointed counsel " 'when she answered any questions,' " and on another occasion that she could " 'have an attorney appointed to represent [her] when [she] first appear[ed] before the U.S.C.ommissioner or the Court.' " Similarly, in People v. Bolinski, 260 Cal.App.2d 705, 718, 67 Cal.Rptr. 347, 355 (1968), the suspect was advised that counsel would be appointed " 'if he was charged.' " These lower courts had correctly found these warnings defective, the Prysock Court explained, because "[i]n both instances the reference to appointed counsel was linked to a future point in time after police interrogation,"  and therefore did not clearly advise the suspect of his right to appointed counsel before such interrogation. 453 U.S., at 360, 101 S.Ct., at 2810. The initial, conditional warning given Eagan suffers from precisely the same fatal defect. It is highly disingenuous for the majority to ignore this fact, characterizing Prysock as involving only the question whether a particular warning "apprise[d] the accused of his right to have an attorney present if he chose to answer questions." Ante, at 205.
It poses no great burden on law enforcement officers to eradicate the confusion stemming from the "if and when" caveat. Deleting the sentence containing the offending language is all that needs to be done. See United States v. Cassell, 452 F.2d 533, 541, n. 8 (CA7 1971). Purged of this language, the warning tells the suspect in a straightforward fashion that he has the right to the presence of a lawyer before and during questioning, and that a lawyer will be appointed if he cannot afford one. The suspect is given no reason to believe that the appointment of an attorney may come after interrogation. To the extent one doubts that it is the "if and when" caveat that is the source of the confusion, compare the initial warning given Eagan, quoted ante, at 198, and the crystal-clear warning currently used by the FBI, quoted ante, at 202, n. 4. The majority's claim that the two warnings are indistinguishable in the message co veyed to a suspect defies belief. I dissent. 
Not content with disemboweling Miranda directly, Justice O'CONNOR seeks to do so indirectly as well, urging that federal courts be barred from considering Miranda claims on habeas corpus review. In Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the Court held that a state prisoner may not seek federal habeas corpus relief on the ground that evidence was obtained in violation of his Fourth Amendment rights if the state courts had provided a full and fair opportunity for litigation of that claim. I joined Justice BRENNAN's dissenting opinion in that case, in which he warned that the majority's rationale "portends substantial evisceration of federal habeas corpus jurisdiction." Id., at 503, 96 S.Ct., at 3056. Justice Powell, writing for the Stone majority, dismissed as "misdirected" the "hyperbole of the dissenting opinion," id., at 494, n. 37, 96 S.Ct., at 3052, n. 37, insisting that his opinion was based on considerations unique to the exclusionary rule. Today, however, Justice O'CONNOR seeks to extend Stone beyond the Fourth Amendment even though this issue was not raised by petitioner Duckworth below or in his petition for certiorari. Her concurring opinion evinces such a palpable distaste for collateral review of state-court judgments that it can only be viewed as a harbinger of future assaults on federal habeas corpus. 
Stone was wrong when it was decided and it is wrong today. I have read and reread the federal habeas corpus statute, but I am unable to find any statement to the effect that certain federal claims are unworthy of collateral protection, or that certain federal claims are more worthy of collateral protection than others. Congress did not delineate "second class" claims when it created federal habeas jurisdiction. Stone, supra, 428 U.S., at 515, 96 S.Ct., at 3062 (BRENNAN, J., dissenting). On the contrary, Congress deemed all federal claims worthy of collateral protection when it extended the writ to any person "in custody pursuant to the judgment of a State Court . . . in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). At a time when plain language is supposed to count for something, Justice O'CONNOR's suggestion that the Court carve out an exception that has no rooting in the text of the habeas statute is difficult to justify.
Under Article III of the Constitution, Congress-not this Court-determines the scope of jurisdiction of the inferior federal courts. Congress is undoubtedly aware that federal habeas review of state criminal convictions might disserve interests of comity and finality and might make the enforcement of state criminal laws more difficult. Congress has determined, however, that the individual's interest in vindicating his federal rights in a federal forum outweighs these concerns. Federal courts, not state courts, thus have the "last say." Brown v. Allen, 344 U.S. 443, 508, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953) (opinion of Frankfurter, J.). Regardless of whether we believe this congressional scheme accords too little respect to principles of federalism or other values, ours is not the choice to make. See Stone, supra, 428 U.S., at 511, 96 S.Ct., at 3060 (BRENNAN, J., dissenting) ("[A]s between this Court on certiorari, and federal district courts on habeas, it is for Congress to decide what the most efficacious method is for . . . asserting the primacy of federal law") (emphasis in original); see also Jackson v. Virginia, 443 U.S. 307, 323, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979); cf. Mincey v. Arizona, 437 U.S. 385, 402-405, 98 S.Ct. 2408, 2418-2420, 57 L.Ed.2d 290 (1978) (MARSHALL, J., concurring).
That Justice O'CONNOR's position is driven by general hostility toward collateral review of state court judgments is apparent. She writes:
"[L]ower federal courts often sit in 'review' of the judgments of the highest courts of a state judicial system. This situation has always been a flashpoint of tension in the delicate relationship of the federal and state courts, and this exercise of federal power should not be undertaken lightly where no significant federal values are at stake. Perhaps most troubling is the cost to society in the efficient enforcement of its criminal laws. Excluding probative evidence years after trial, when a new trial may be a practical impossibility, will often result in the release of an admittedly guilty individual who may pose a continuing threat to society." Ante, at 211 (concurring opinion).
This logic sweeps within its broad compass claims far beyond those based on Miranda. Once the specter is raised that federal habeas review may lead to the release of guilty criminals, it is difficult to imagine any non-guilt-related claim that would be worthy of collateral protection. What Justice O'CONNOR ignores is that Congress believed that defendants have rights, often unrelated to guilt or innocence, that are worthy of collateral protection despite the apparent costs to society. Thus, in Rose v. Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61 L.Ed.2d 739 (1979), we refused to extend Stone to preclude a federal habeas c aim of racial discrimination in the selection of a state grand jury foreperson, even though the defendants' culpability for the murders charged in that case was not disputed. Under Justice O'CONNOR's view that federal habeas review should extend only to guilt-related claims, however, the claim raised in Rose, along with claims such as prosecutorial misconduct, double jeopardy, or the right to a speedy trial, could never be cognizable on federal habeas.
It is not only disapprobation for federal habeas review that pervades Justice O'CONNOR's concurring opinion, but also a profound distaste for Miranda. How else to explain the remarkable statement that "no significant federal values are at stake" when Miranda claims are raised in federal habeas corpus proceedings? Ante, at 211 (concurring opinion) (emphasis added). But irrespective of one's view of the merits of Miranda, the critical point is that Miranda is still good law. With few exceptions, prosecutors in state courts may not introduce statements taken from a criminal suspect in violation of his Miranda rights. If a state trial court permits the introduction of such statements, federal constitutional error has been committed. Unless the defendant's conviction is reversed, he is indisputably being held "in violation of the Constitution . . . of the United States." 28 U.S.C. § 2254(a). This is true whether the defendant challenges the introduction of the statements on direct appeal or on collateral review, for the federal violation does not "suddenly vanis[h] after the appellate process has been exhausted." Stone, 428 U.S., at 511, 96 S.Ct., at 3060 (BRENNAN, J., dissenting); see also id., at 536-537, 96 S.Ct., at 3071-3072 (WHITE, J., dissenting).
Even assuming that Stone was correctly decided, and that the question is therefore whether the benefits of the suppression remedy for Miranda violations on federal habeas outweigh its costs, I would still reject Justice O'CONNOR's conclusion that "the scales appear . . . to tip further toward finality and repose in this context than in Stone itself." Ante, at 209 (concurring opinion). In Stone, Justice Powell did not rest his "cost" analysis solely on the fact that the exclusionary rule operates, like the Miranda requirements, to prevent juries from considering highly probative evidence. Justice Powell's analysis was far subtler than that, for he focused on evidence that was both probative and "typically reliable." 428 U.S., at 490, 96 S.Ct., at 3050. The erroneous admission of this type of evidence, he explained, does not cast doubt upon the state trial court's "truthfinding process." Ibid.; see also id., at 497, 96 S.Ct., at 3053 (BURGER, C.J., concurring). Like evidence that a habeas petitioner challenges under the exclusionary rule-"a pistol, a packet of heroin, counterfeit money, or the body of a murder victim," ibid.-a self-incriminatory statement that a habeas petitioner challenges under Miranda is ordinarily highly probative. But unlike physical evidence seized from a suspect in violation of his Fourth Amendment rights, a statement taken from a suspect in violation of his Miranda rights is presumptively unreliable. See New York v. Quarles, 467 U.S. 649, 664, 104 S.Ct. 2626, 2629, 81 L.Ed.2d 550 (1984) (O'CONNOR, J., concurring in judgment in part and dissenting in part) ("When police ask custodial questions without administering the required warnings, Miranda quite clearly requires that the answers received be presumed compelled . . ."). Thus, when Miranda claims are raised on federal habeas, "the integrity of the factfinding process" of the state trial court is called into question. Brewer v. Williams, 430 U.S. 387, 414, 97 S.Ct. 1232, 1247, 51 L.Ed.2d 424 (1977) (Powell, J., concurring). This is precisely the situation in which collateral review is most appropriate.
Justice O'CONNOR's extension of iStone overlooks another difference between claims based on the exclusionary rule and claims based on Miranda. According to the Stone majority, the primary justification for the exclusionary rule is the deterrence of police misconduct. 428 U.S., at 486, 96 S.Ct., at 3048; but see id., at 510, and n. 9, 96 S.Ct., at 3059, and n. 9 (BRENNAN, J., dissenting). By contrast, the rights secured by Miranda go to the heart of our accusatorial system-"a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth." Rogers v. Richmond, 365 U.S. 534, 541, 81 S.Ct. 735, 739, 5 L.Ed.2d 760 (1961). Justice O'CONNOR recognizes as much, acknowledging that the privilege against self-incrimination reflects the longstanding belief that "the extraction of proof of guilt from the criminal defendant himself is often an adjunct to tyranny and may lead to the conviction of innocent persons." Ante, at 209 (concurring opinion). Unlike the exclusionary rule, which purportedly exists solely for deterrence purposes, the Miranda requirements thus serve to protect "a criminal suspect's exercise of [a] privilege which is one of the distinctive components of our criminal law." White v. Finkbeiner, 687 F.2d 885, 893 (CA7 1982) (declining to extend Stone to Miranda claims).
Justice O'CONNOR attempts to elide this distinction by advocating that only "nonconstitutional" Miranda claims be barred on federal habeas. Ante, at 212 (concurring opinion). By this she presumably means those claims that are based on so-called "voluntary statements." Oregon v. Elstad, 470 U.S. 298, 307, 105 S.Ct. 1285, 1292, 84 L.Ed.2d 222 (1985) (emphasis in original). I have never accepted the proposition that there is any such a thing as a "nonconstitutional" Miranda claim based on "voluntary" statements. The explicit premise of Miranda is that, unless a suspect taken into custody is properly advised of his rights, "no statement obtained from the [suspect] can truly be the product of his free choice" as a matter of federal constitutional law. 384 U.S., at 458, 86 S.Ct., at 1619; see also id., at 445, 86 S.Ct., at 1612. As Justice Douglas explained: "Miranda § purpose was not promulgation of judicially preferred standards for police interrogation, a function we are quite powerless to perform; the decision enunciated 'constitutional standards for protection of the privilege' against self-incrimination." Michigan v. Tucker, 417 U.S. 433, 465-466, 94 S.Ct. 2357, 2374-2375, 41 L.Ed.2d 182 (1974) (dissenting opinion), quoting Miranda, 384 U.S., at 491, 86 S.Ct., at 1636. Granted, Miranda "is an area of the law filled with technical rules, and the protections it affords defendants might at times be perceived as technicalities," Jones v. Thomas, 491 U.S. 376, 387, 109 S.Ct. 2522, 2529, 105 L.Ed.2d 322 (1989), but fundamental principles embodied in the Self-Incrimination Clause are at stake whenever a Miranda claim is raised. See Orozco v. Texas, 394 U.S. 324, 326, 89 S.Ct. 1095, 1096, 22 L.Ed.2d 311 (1969) ("[T]he use of . . . admissions obtained in the absence of the required warnings [is] a flat violation of the Self-Incrimination Clause of the Fifth Amendment as construed inMiranda ").
Even if it were possible to identify a class of "nonconstitutional" Miranda claims, there will be little gained in attempting to extend Stone to these claims. It is simply not possible to know in advance which habeas petitioners raising Miranda claims will have their statements found "voluntary" and which will not. Federal habeas courts therefore will be obligated to inquire into the nature of each habeas petitioner's Miranda claim before deciding whether Stone should apply. Moreover, many habeas petitioners will have coupled their Miranda claims with trad tional involuntariness claims based on the Due Process Clause, thereby making such inquiries inevitable. See Cardwell v. Taylor, 461 U.S. 571, 573, 103 S.Ct. 2015, 2016, 76 L.Ed.2d 333 (1983) (per curiam ) ("[I]f the statements were involuntary, and therefore obtained in violation of the Fifth Amendment, . . . the federal courts [could] grant relief on collateral review"). Such claims require significant judicial attention because "[d]ifficulties of proof and subtleties of interrogation technique [make] it impossible in most cases for the judiciary to decide with confidence whether the defendant had voluntarily confessed his guilt or whether his testimony had been unconstitutionally compelled." Quarles, 467 U.S., at 683, 104 S.Ct., at 2646 (MARSHALL, J., dissenting). The purported "costs" of collateral review in the exclusionary rule context, such as preventing finality and overburdening the federal courts, see Stone, supra, 428 U.S., at 491, n. 31, 96 S.Ct., at 3051, thus will still exist even if Stone is extended to "nonconstitutional" Miranda claims.
In any event, I vehemently oppose the suggestion that it is for the Court to decide, based on our own vague notions of comity, finality, and the intrinsic value of particular constitutional rights, which claims are worthy of collateral federal review and which are not.  Congress already engaged in that balancing process when it created habeas review and extended the federal courts' jurisdiction to all claims based on a violation of federal law. The federal courts have been reviewing Miranda claims on federal habeas for 23 years, and Congress has never even remotely indicated that they have been remiss in doing so. To the extent Justice O'CONNOR is unhappy with Miranda, she should address that decision head on. But an end run through the habeas statute is judicial activism at its worst.