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INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)⁽¹⁾ is a nonprofit California corporation organized to participate in litigation relating to the criminal justice system as it affects the public interest. CJLF seeks to bring the constitutional protections of the accused into balance with the rights of the victim and of society to rapid, efficient, and reliable determination of guilt and swift execution of punishment.

The present case raises key issues concerning the police's ability to continue to investigate a suspect's additional criminal conduct after that person is charged with one crime. The Texas Court of Criminal Appeals has given a very expansive reading of the confusing term "closely related," improperly allowing the right to counsel to extend to uncharged crimes. It has made this decision without regard to the interrogation's minimal effect on the representation of counsel for the charged crime, with only some simple factual relation to the previously charged crime. This hostility to interrogations needlessly hampers legitimate police investigation, depriving courts and juries of voluntary, highly probative confessions. The Texas court's needless limits on good police work is contrary to the rights of victims and society which CJLF was formed to serve.

SUMMARY OF FACTS AND CASE

The facts are stated in the opinion of the Texas Court of Criminal Appeals and the trial judge's findings on the suppression motion. On December 27, 1993, defendant burglarized the residence of Lindsey and Margaret Owings in Walker County, Texas. App. to Pet. for Cert A-3. He stole a stereo system, videocassette recorder, and other things. Ibid. Defendant then intentionally killed 22-year-old Margaret Owings and 16-month-old Kori Rae Owings. Ibid. He stabbed Margaret in the home and buried her in the woods some two to three hundred yards from the home. Id., at A-9 (McCormick, P. J., dissenting). He also took Kori and buried her alive with her mother. Id., at A-9 to A-10.

Cobb confessed to the burglary in July, 1994. Id., at A-4. The validity of this confession is not challenged. He was indicted for burglary and was appointed counsel. Ibid. "Appellant made bond in the burglary case and moved to another town [Odessa]." Id., at A-10 (dissent).

Over a year later, while the burglary case was still pending, Cobb confessed the murder to his father, who then told the police. The Odessa police administered the Miranda warnings, as did the magistrate. Id., at D-3 and D-7 (trial court findings 8 and 24). Cobb understood and waived his rights "and voluntarily took officers to the area where the remains of Margaret Owings and the clothing of Kori Rae Owings were found." Id., at D-3 (finding 8).

Defendant was convicted of intentionally killing two people in a single criminal transaction and was sentenced to death. Id., at A-1. The burglary was originally included in the murder indictment, but that allegation was abandoned before trial. Id., at D-4 (findings 10 and 13). The Texas Court of Criminal Appeals reversed the conviction, holding that the Odessa interrogation violated defendant's Sixth Amendment right to counsel, as the murders were "factually interwoven with the burglary" charge, to which his right to counsel had attached. See id., at A-7 to A-8.

SUMMARY OF ARGUMENT

This case is largely resolved by asking the proper question. The issue in this case is not whether there is an "exception" to the offense specificity of the Sixth Amendment, but rather what is the scope of the rule of exclusion of evidence obtained in violation of the Sixth Amendment.

The basic Sixth Amendment rule, as established in Massiah v. United States, 377 U. S. 201 (1964) and McNeil v. Wisconsin, 501 U. S. 171 (1991), is that once a person has been charged and asks for representation, the police may not question that person with regard to the charged offense without the consent of counsel. Questioning related to uncharged offenses, however, is acceptable. This clear rule should not be obscured by the largely unexplained results in Maine v. Moulton, 474 U. S. 159 (1985) and Brewer v. Williams, 430 U. S. 387 (1977).

A close reading of Moulton dispels any notion that it supports an exception to the Sixth Amendment rule. That decision never mentions any Sixth Amendment exception, but instead consistently ties the right to counsel to the charged offenses. The analysis centered on the state's purpose behind its post-indictment investigation and whether the investigation constituted impermissible interrogation of the defendant. These points also formed the bulk of the argument in the briefs of both Maine and the United States in Moulton. Neither brief argued to separate the uncharged burglary offense from the charged offenses that had been reversed by the Maine Supreme Court. Moulton's unargued, unanalyzed reversal of the uncharged burglary is not precedent for a Sixth Amendment exception.

Nor should Brewer v. Williams support the exception. As in Moulton, the analysis centered on another issue, waiver. Once again, the Court did not discuss any exception to the general rule. The result in this case is best explained by a rule that if material evidence is obtained in violation of Massiah with regard to a pending charge, that evidence is not admissible at the trial of the pending charge or of any charges that may be brought later.

This explanation brings these decisions in line with Sixth Amendment precedent. This Court has consistently tied the Sixth Amendment right counsel to charged crimes. The initiation of judicial proceedings is no mere formalism, but instead essential to the proper application of the right. Since the "closely related" exception has sown confusion in the courts, it should be abandoned.

Instead of any "closely related" exception to offense specificity, exclusion should be limited to evidence that is material to guilt of the charged offense. The Sixth Amendment prevents the state from circumventing the right to counsel in the charged offense. If evidence is not material to the charged offense, then the Sixth Amendment is not violated, regardless of how it is obtained. Circumvention is prevented by extending Massiah's exclusionary rule to cover use of material evidence obtained in violation of Massiah in the trial of a related offense. Finally, this rule avoids the two evils of unduly hindering investigation and excluding probative evidence discovered in good faith by police who inadvertently step over an ill-defined line.

Because the criminal investigation cannot be neatly segmented, some legitimate investigations will turn up evidence relevant to previously charged offenses. Instead of throwing out valid, highly probative confessions for the slightest taint, the balance of interests warrants a more restrained approach. The materiality standard of Brady v. Maryland, 373 U. S. 83 (1963) provides the correct middle way. Instead of asking whether the charged and uncharged crimes are "inextricably intertwined," courts should ask whether confidence in the defendant's guilt of the charged offense reasonably would have changed if the statement had not been obtained.

This test would provide a much cleaner path to the same result in most of those cases that have grappled with the "inextricably intertwined exception." The path to the correct result in this case is similarly clear. Since Cobb had all but pled guilty to the charged burglary before his murder confession, his second interrogation did not prejudice his Sixth Amendment right in the burglary.⁽²⁾

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1. This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.

2. In our brief supporting the petition for writ of certiorari, we argued that the rule of Michigan v. Jackson, 475 U. S. 625 (1986) should not apply to invalidate an otherwise valid waiver which follows both a break in custody and actual consultation with counsel. We do not brief that point here because it is not within the questions to which the Court limited its grant of certiorari. We suggest that an express reservation of the point would be in order to preclude any inference that it is decided sub silento in this case. Cf. California v. Hodari D., 499 U. S. 621, 623, n. 1 (1991) (reserving point); Illinois v. Wardlow, 528 U. S. __, 145 L. Ed. 2d 570, 120 S. Ct. 673 (2000) (deciding point).