On petition for writ of certiorari to the Supreme Court of
Colorado. The motion of Duane Woodard, Attorney General of
Colorado, et al., for leave to file a brief as amici curiae is
granted. The motion of respondent for leave to proceed in forma
pauperis is granted. The petition for writ of certiorari is
granted. In addition to the question presented by the petition for
writ of certiorari, the parties are requested to brief and argue
the following question: Did respondent's mental condition render
his waiver of Miranda rights ineffective? The application for stay,
presented to Justice WHITE and by him referred to the Court, is
granted pending the issuance of the mandate of this Court.
Memorandum of Justice BRENNAN, with whom Justice STEVENS
joins.
This grant of certiorari is yet another instance supporting the
concern that the Court shows an unseemly eagerness to act as "the
adjunct of the State and its prosecutors in facilitating efficient
and expedient conviction. . . ." Wainwright v. Witt,
469 U.S.
412, 463, 872 (1985) (BRENNAN, J., dissenting). Most often,
this concern has been evoked by the Court's overly narrow
interpretations of the Constitution's fundamental guarantees and
the laws established to secure relief from violations of those
guarantees. See ibid.; United States v. Leon,
468 U.S. 897, 928-929,
3430 (1984) (BRENNAN, J., dissenting). However, the Court's
willingness to take special judicial action to assist the
prosecutor has not been limited to its interpretations of
substantive law. For example, in New Jersey v. T.L.O.,
469 U.S. 325 (1985),
reargument was directed on a constitutional question not raised by
either party because it provided a broader basis for upholding the
State's action. Similarly, two Terms ago, Justice STEVENS noted the
"quite striking" fact that during the preceding two-and-a-half
years the Court had summarily reversed, without briefing or oral
argument, 19 criminal cases-every one on the petition of the warden
or the prosecutor and every one in his favor. Florida v.
Page 474 U.S.
1050 , 1051
Meyers,
466 U.S.
380, 385-387, and n. 3, 1855-1856, and n. 3 (1984) (STEVENS J.,
dissenting). Nothing has changed in the year and a half since that
decision, for, although in the immediate wake of Justice STEVENS'
dissent the Court did summarily reverse a few convictions on the
petition of a criminal defendant, the trend to grant summary
dispositions only in favor of the prosecutor has resumed and the
record now stands at 26-4.1 No particularly informed understanding
of statistics is required to appreciate that the likelihood of
courts so consistently erring in favor of defendants is truly
remote and that only a one-sided exercise of discretion can explain
these results.
The Court's treatment of this case provides another clear
example of why there is concern that the Court engages in
injudicious efforts to assist prosecutors. Today, the Court takes
the unprecedented step of rewriting a prosecutor's certiorari
petition for him, enabling him to seek reversal on a ground he did
not present himself. [
Footnote
2]
Respondent approached a uniformed police officer and stated that
"he had killed someone" and wanted to tell the officer about it.
Before questioning respondent about the killing, the officer
informed respondent of his Miranda rights. Respondent waived
Page 474 U.S.
1050 , 1052
his rights and proceeded to confess to the murder of a young
girl. After being charged with murder, respondent moved to suppress
his statements as made involuntarily. A psychiatrist testified that
respondent believed that the voice of God had commanded him to
confess or commit suicide. The psychiatrist testified that
respondent was suffering from "chronic paranoid schizophrenia" and
"command auditory hallucinations" when he confessed and that
respondent's actions were not the product of a free will. The trial
court suppressed statements made both before and after the Miranda
warnings were given on the ground that respondent's mental state
rendered these confessions involuntary and tainted his waiver of
the Miranda rights. The Colorado Supreme Court affirmed, and this
petition followed. The prosecutor carefully limited his petition to
this Court to challenge only the suppression of respondent's
initial, unsolicited statements. The petition expressly states that
"[respondent's] later confession, which involves a Miranda issue,
is not an issue in this petition." Pet. for Cert. 15. Despite this,
the Court directs the parties to brief and argue that issue.
We do not know why the prosecutor chose not to seek review of
the Miranda issue. But, whatever the reason, review was not sought,
and it is hardly for this Court to "second chair" the prosecutor to
alter his strategy or guard him from mistakes. Under this Court's
Rule 21.1(a), "[o] nly the questions set forth in the petition or
fairly included therein will be considered by the Court." Given
petitioner's express disclaimer that the Miranda issue is
presented, that question obviously is not " fairly included" in the
question submitted. The Court's direction that the parties address
it anyway makes meaningless in this case the provisions of this
Rule and is plainly cause for concern, particularly since it is
clear that a similar dispensation would not be granted a criminal
defendant, however strong his claim. In asking the parties to
address issues that the State chose not to present in the petition
for certiorari, the Court goes beyond a mere philosophic
inclination to facilitate criminal prosecution: the Court gives the
appearance of being not merely the champion, but actually an arm,
of the prosecution. [
Footnote
3]
Page 474 U.S.
1050 , 1053
I realize that, in itself, this order is not a matter of great
significance. But even matters of small effect can cloak issues of
great moment. In making the specific guarantees of the Bill of
Rights a part of our fundamental law, the Framers recognized that
limitless state power afflicts the innocent as well as the guilty,
that even a crime-free world is not worth the fear and oppression
that inevitably follow unrestricted police power, and that a truly
free society is one in which every citizen- guilty or innocent-is
treated fairly and accorded dignity and respect by the State. Of
course, the Framers could not foresee the shape our society would
take as the Nation developed. Nor could they foresee how the police
function would evolve to keep pace. Rather, it has fallen to this
Court- the "ultimate interpreter of the Constitution," Baker v.
Carr,
369 U.S.
186, 211, 706 (1962)-to enforce the rights enshrined in the
Bill of Rights and preserve the principles established in 1789.
Ours is the duty to prevent encroachment on these principles by
over-zealous police in the discharge of their great responsibility
to prevent crime. Every law-abiding citizen shares with the Court
the belief that the prevention of crime is an essential
governmental function. However, the Members of this Court have the
special responsibility to recognize that, as essential as is the
goal of preventing crime, "the Court must be ever mindful of its
primary role as the protector of the citizen and not the warden or
the prosecutor." Florida v. Meyers, 466 U.S ., at 387 (STEVENS, J.,
dissenting). This Court has, sadly, lost sight of this role, to the
detriment of the rights of each of us. I can only repeat: "One can
only hope that this day too will soon pass." Wainwright v. Witt,
469 U.S., at 463 (BRENNAN, J., dissenting).
Footnotes
Footnote 1 The four cases
since Florida v. Meyers decided in favor of a criminal defendant
are: Payne v. Virginia,
468 U.S. 1062 (1984)
(per curiam ); Thompson v. Louisiana,
469 U.S. 17 (1984) (per
curiam ); Smith v. Illinois,
469 U.S. 91 (1984) (per
curiam ); and Lanier v. South Carolina,
474 U.S. 25 (1985) ( per
curiam ). The seven cases decided in favor of the warden or
prosecutor during that same period are: Massachusetts v. Upton,
466 U.S. 727
(1984) (per curiam ); Florida v. Rodriguez,
469 U.S. 1 (1984) (per
curiam ); United States v. Woodward,
469 U.S. 105 ( 1984) (per
curiam ); United States v. Gagnon,
470 U.S. 522 (1985) (per
curiam ); United States v. Benchimol,
471 U.S. 453 (1985) (per
curiam ); Delaware v. Fensterer,
474 U.S. 15 (1985) ( per
curiam ); and Pennsylvania v. Goldhammer,
474 U.S. 28 (1985) (per
curiam ). Payne, Thompson, and Smith followed closely after Justice
STEVENS' dissent in Florida v. Meyers. Since Smith was decided on
December 10, 1984, however, five of the last six summary
dispositions have been in favor of the prosecution.
I am not suggesting that all the summary judgments awarded to
the State were incorrect or improper, although I did not agree with
the result in many of the cases. It is the Court's selective
employment of its summary disposition power only in favor of the
prosecution that is most disturbing.
Footnote 2 This action is
even less justifiable than the improper decision to order
reargument in New Jersey v. T.L.O.,
469 U.S. 325 (1985),
since here the Court cannot even point to having heard oral
argument as justification for revising the issues presented to suit
its own desires.
Footnote 3 I express no
views about the merits of the issues on which certiorari is now
granted. See Ohio ex rel. Eaton v. Price,
360 U.S. 246 (1959)
(statement of BRENNAN, J.).
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