Eugene Keith Sulie v. Jack Duckworth
689 F.2d 128
7th Cir.
1982
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*2 CUDAHY, Before ESCHBACH and POS- NER, Judges. Circuit POSNER, Judge. Circuit Eugene was convicted in an Indiana Sulie first-degree state court of murder and sen- imprisonment. tenced to life After ex- hausting remedies, his state see Sulie v. State, 269 Ind. 379 N.E.2d 455 petition corpus. he filed a for federal habeas appealed. It was denied and he has The question is whether presented us liberty without deprived Sulie was of his due of law because the officer who custody while was in questioned him he testify after his arrest was allowed This attorney. asked to see an evi- Sulie dence was used to show that was sane Sulie when he killed his victim. question whether it is a violation of a

criminal defendant’s constitutional to a testify speak that he asked to interrogated when he arose in Jacks v. Duckworth, 1981), and this court held that it was not. opinion lays heavy emphasis But court’s alleged on the harmlessness of the error in case, of that and we are the circumstances certain that if there was error here it less go We shall therefore be- was harmless. yond simple citation of Jacks. Arizona, Miranda held that “the to have counsel interrogation is in present at custodial] [a protection of the Fifth dispensable to the to remain silent dur privilege” argues interrogation. ing such an Sulie present dur that the interrogation would be inhibited if ing an that an being interrogated knew person could attempt to exercise sanity. trial as evidence of in his criminal be admis his silence would not Evidence of criminal trial. against him in his See The John Marshall Law sible Kamp, Allen n. Ill., Miranda, at 468 School, petitioner-appel supra, Chicago, Ohio, 426 Doyle v. at 1624 n. lant. express right, No the Fifth argues right against compulsory his more—Sulie self- —should incrimination, infringed. be admissible. deciding apply whether to this enforce- analogy But we do not find the device in present we have to compelling. jurors likely Because are quite first *3 consider how much guilt to infer a refusal from defendant’s to to a right remain silent would be deterred if give a to police, statement the the admissi knew suspect that a for a bility of such a refusal in evidence sanity. be used of could as evidence his the defendant would be a substantial deter much, in opinion. Not our New criminal rent to the of exercise his constitutional insanity. defendants raise the of right during to silent custodial defense remain a still, imagine, already plan- we are interrogation. The deterrent in this Fewer effect arrested, their first ning case is more The consti defense when tenuous. ultimate them, though may tutional in as in Sulie be one of since the right involved this case silent; right Miranda is the to remain it is victim’s husband testified Sulie had right, not the easy to counsel. That told him that it to beat a murder which derives from the if rap insanity plea you Sixth knew how and is to the states the due through sophisticated to the fool doctors. The sus- of the pect clause Fourteenth Amend foresight whose makes him hesitate to ment, see v. Wainwright, Gideon a he ask for is afraid that 792, 795-96, 9 L.Ed.2d will insanity his undermine his de- not attach a does until criminal at trial present fense does not need counsel prosecution commenced, been by has as the protect to his constitutional to remain Illinois, filing charge. silent; of a planner formal Moore such an advance will not out damaging blurt admissions involuntari- interrogation merely Mere ly, present. because counsel is not of a suspect filing any charge, the before of Against slight inhibiting the ef as in bring into does the fect on of silence of play. Duckworth, supra, Jacks v. 651 F.2d permitting that a criminal testimony de at 483. It is true that some decided cases requested interroga fendant at his hold, citing since Moore but without Moore tion, weigh we must the value to the state or elaborating holding, the basis of their being interroga able to when show that the to counsel Sixth crime, after the ted soon defendant who any attaches prior filing charge. to he now claims was insane when he commit See, McDonald, e.g., United States v. sufficiently crime was to ted the lucid ask 1980). But these for a Under Indiana law at the regarded decisions cannot be as authorita prosecution time of Sulie’s trial the had the tive, Moore; in light of are cer they and of proving beyond burden a sanity reasona tainly circuit, light not the law of this in of ble doubt once the defendant raised the Jacks. State, insanity, Riggs defense of 264 Ind. present to

The have counsel N.E.2d and therefore, is, at a interrogation custodial as psychiatry such an exact science that passage quoted earlier from Miranda it be counted on defeat every can effort clear, merely ancillary supplemen makes feign insanity. difficulty or of reliably The silent, tary determining which by litigation remain the methods of derives from Fifth Amendment’s self- a whether criminal defendant is insane lies exclusionary principle incrimination clause. Like the judge behind that “the trial cases, rule in search seizure Miran be free in all possi should his admission of da conferred directly bly to counsel is not relevant evidence” the issue of insan on by judge- Hartfield, a ity. Constitution but rather is States v. assuring made 1975). Although prin- device for enforcement ciple defendants, invoked usually to Amendment to remain during silent a cus- justify the admission of evidence of insani- interrogation. todial But in this case the good we cannot think ty, any reason that interrogation came 30 hours after the it should not be available to the state to crime. justify the evidence of sanity, admission of law, As so often in the it is all a matter of especially where the state has the burden of balancing competing particular values in proving beyond reasonable circumstances. Here the balance sufficient- might virtually doubt —a burden some think ly admissibility per- inclines in favor of criminal, impossible case of suade us that the defendant’s constitutional aberrant, implies behavior. Evidence infringed. judgment were not of a lucidity at or near the time denying petition corpus for habeas may of the crime important therefore be therefore preventing acquittals grounds erroneous on Affirmed. insanity, legitimate important so- *4 goal. cial preventive That effect must be burden, weighed against the which we have CUDAHY, Judge, dissenting. Circuit indirect, said is on the exercise of the Fifth writing slate, If we were on a clean I right against compulsory self- could find some plausi- common sense and incrimination. bility in the majority’s balancing analysis. All not suggest this is to that evi I too request see little to deter a for a dence that a criminal defendant asked for a lawyer subsequent in the threat of use of lawyer when he questioned was first is ad request prove sanity. Perhaps, to as generally. Many missible decisions have contends, majority partic- state has See, e.g., held such evidence inadmissible. testimony ular need for about a defendant’s States, Fagundes v. 340 United request for a lawyer lucidity. to show his (1st 1965); Liddy, Cir. United v. States argue But there are also those who would (D.C. 1974); 509 F.2d 443-45 Unit request entirely that such a is consistent Williams, (D.C. ed States v. event, with lunacy. any asking for a 1977); McDonald, v. su States lawyer is proof not either of

pra, People Schindler, 620 F.2d at objective guilt or of sound mental condition. Cal.App.3d 170 Cal.Rptr. analysis Be that as it may, an based on quarrel We have no balancing deterrence of the constitutional except these decisions the last. right to against the state’s interest Schindler alone involved the use of such testimony seeking about a an is prove sanity. evidence to Where evidence approach clearly foreclosed to us that the defendant a lawyer asked for is Supreme Court. For the Court’s decision in but, used prove, sanity, example, Ohio, Doyle v. U.S. guilt, probative slight (it its value is basically contrary 49 L.Ed.2d 91 true guilty person that a would want analysis both mode of lawyer present have a when he was holding. to its The ultimate constitutional being questioned by police); but here it notes, is, majority at issue here as the so, great. adopt Even we decline to a require- to remain silent. admissibility. rule of blanket If the inter (which warning ment of a Miranda advises rogation place takes months after crime, a defendant of both the to remain an inference of at the time of counsel) crime, prophy- silent and the is a request drawn from a for counsel designed safeguard lactic rule Fifth interrogation, at the time of the might well Tucker, Michigan rights. be too allowing tenuous to warrant evidence, given into that its admis U.S. (1974). Doyle sion that one though could have held probably some— only slight response by effect on the exercise a defendant to the Miranda —deterrent the defendant’s under not be warnings remaining the Fifth silent —could — trial the defendant even for with the implicitly at assurances that accom- purpose impeaching the limited pany warnings, the de- the Miranda the majority’s testimony. attempt fendant’s trial The Court of- distinguish Doyle must fail.1 First, fered two reasons for this result. a dismissing Doyle ap- In the course of as defendant’s silence in the wake of these asserts, plicable precedent, majority as I warnings “insolubly ambiguous indicated, the proper mode of of what the is required State to advise the inquiry is to ask whether a defendant’s person arrested.” 426 at exercise of the to remain silent would (footnote omitted). is, at 2244 That a de- be unnecessarily deterred if the State were fendant’s silence may nothing more than permitted to use the as the exercise of the Miranda to remain majority evidence at trial. The concludes Second, silent. the Court observed that at least the admission into “while it warnings is true that the Miranda evidence of the defendant’s for a contain no express assurance that silence only “slight inhibiting would have will penalty, such assurance is effect” on the exercise of the constitutional implicit to any person who receives the right. Ante at 130. empirical As an mat- warnings.” at S.Ct. at ter, I suggested, probably as have this is reasons, 2245. For these the Court held assessment; accurate existing prece- under it fundamentally would be unfair and dent, however, I do not believe that it is an deprivation of due to allow a assessment we are entitled to make. The silence to be used at trial. “penalty” analysis Doyle derives from

These same considerations apply Supreme when the Court’s decision in Griffin v. the defendant’s response California, 609, to the Miranda 1229, 380 U.S. 85 S.Ct. warnings is not request silence but a L.Ed.2d 106 prose- which held that a contact a Because the is State cutor’s comment jury concerning to the the required under Miranda to advise an ac- testify defendant’s failure to violated the cused of right both the to remain silent and Fifth privilege because it was counsel, the exercise of the latter “a penalty imposed by the courts for exer- “insolubly ambiguous” is as as the cising a privilege. constitutional It cuts right. impor- former More privilege making down on the by its asser- tantly my principal point, just for as the costly.” tion at S.Ct. at Miranda warnings implicitly assure an ac- broadly 1232. Griffin holds “at least cused that exercise the context, of announced ques- in the criminal the relevant will carry penalty, silence no so too particular must tion is whether the defendant has they implicitly give assurance that a de- by been harmed the use of the fact State's fendant’s exercise of the announced engaged constitutionally protect- to that he in carry penalty. conduct, whether, counsel will no particular Because the ed the Doyle Court in was concerned not with the persons generally, defendant or for the precise particular source of the rights con- activity reference to such has or will State’s tained in the warnings Miranda but rather burden the exercise of the constitutional ambiguity the inherent right.” a defend- United States ex rel. Macon v. ant’s rights and, exercise of those crucially, Yeager, (3rd cert. reading Doyle prosecution’s by post-arrest 1. This is that confirmed the the use of Supreme Thus, fundamentally key Court’s recent decision in Fletcher v. is the unfair. silence Weir, exclusionary 455 U.S. Doyle giving 102 S.Ct. 71 L.Ed.2d to the rule of is the (1982) (per curiam). Fletcher, warnings the Court of Miranda and not the constitutional Doyle prohibit held that did not the use of the rights source of the various announced in those post-arrest impeach defendant’s silence for warnings. Because the State’s assurances con- purposes ment where the defendant had not cerning the defendant’s silence warnings. empha received Miranda The Court indistinguishable to counsel are under the only sized that it is when the defendant re Doyle warnings, terms of the Miranda the rule ceives “the sort of affirmative assurances em rights. apply must to both warnings,” in bodied the Miranda 102 S.Ct. at denied, not see how we can balance 94 S.Ct. the need State’s (1973) (emphasis original). L.Ed.2d 104 in for evidence of rationality against plac- the us, In the scarcely ing penalty ease before it can of a on the defendant’s exercise penalized doubted that the defendant was of his to counsel. For if the State’s this sense when the challenged State need for the evidence an ap- is consider, him at trial on the issue of his propriate factor fact that he asked to contact a lawyer. rights would be honored when their is exercise of no benefit to the accused. I Consequently, I think we have to inter- am compelled therefore to conclude that the pret Doyle to forbid the from prosecution prosecution’s use of the defendant’s introducing into evidence the fact that to contact an attorney violated the Fifth rights defendant exercised of the con- Amendment as to the states under warnings. tained in the Miranda There is the Fourteenth Amendment.2 failing no reason for employ penalty analysis in By reading Although the case before us. question of harmless error close, rights, defendant his Miranda agree majority State seems I with the implicitly assured him that exercise of those the case before us is not controlled Jacks rights penalty. Duckworth, would The prose- 1981), subsequently cution violated this assurance 454 U.S. 102 S.Ct. when it used the defendant’s emphasized counsel against insanity Here, believe, him to rebut his harmlessness of the error. I defense guilty ap- and secure a verdict. I the error cannot be deemed be harmless preciate doubt, must, the difficulties both of asserting yond a reasonable and I there defense, defeating insanity fore, but I respectfully do dissent. Jersey, majority’s holding 2. The Johnson v. New infringed Fifth Amendment were not squarely here is in conflict with a number of question I also dismissal of the decisions that have held that the Fifth Amend defendant’s Sixth Amendment claim. The ma (and, prosecutions, proc state due jority claims that the Sixth Amendment Amendment) ess clause of the Fourteenth bearing has no all assistance at prosecution permitted violated when the at *6 explicit guarantees because the this case trial to show that the defendant asked to see a yet that amendment had not attached at the See, Williams, e.g., United States v. time the defendant made his for coun 65, (D.C. Cir.) (per curiam), 556 F.2d 66-67 Illinois, 220, sel. See Moore v. 434 U.S. 226- denied, 972, 2936, cert. 431 U.S. 97 53 S.Ct. 27, (1977); 424 98 S.Ct. 54 L.Ed.2d (1977); L.Ed.2d 1070 United States v. Faulken Illinois, Kirby 406 U.S. 92 v. S.Ct. bery, 879, denied, (9th Cir.), 472 F.2d 881 cert. (1972). 32 L.Ed.2d 411 970, 2161, 411 U.S. 93 36 692 L.Ed.2d conclusion, however, is at odds with (1973); Nielsen, United States v. 392 F.2d 849 holding long that an accused’s line of cases (7th 1968); Schindler, People Cir. v. 114 Cal. arrest, lawyer, attempt to contact a even before 178, App.3d Cal.Rptr. (1980); People 170 461 v. may consistently with the Sixth Amend 857, Kennedy, Ill.App.3d 33 338 N.E.2d 414 support at trial to an inference of McDonald, be used (1975). All of these cases involved custodial See, e.g., guilt. 620 United States v. interrogations during the defendant re 559, Solem, (5th 1980); F.2d 564 Cir. Zemina v. quested speak lawyer, with a the same situa 455, aff’d, F.Supp. (D.S.D. 1977), presented tion in this case. curiam); 1978) (per F.2d 1027 Cir. cases, majority, Two other cited found 428, (D.C. Liddy, v. 509 F.2d Cir. States requests similar to see a inadmissible denied, 911, 1974) (en banc), 420 U.S. cert. identifying without the source of the constitu- U.S., (1975); United States L.Ed.2d tional involved. Baker v. 1966); U.S., (3rd Fagundes Yeager, 13 -14 ex rel. Macon v. (1st 1965). Fagundes relied 414 U.S. 94 S.Ct. principally Supreme decision in on Court’s the exercise of Because Illinois, Escobedo v. 378 U.S. 84 S.Ct. cases came before to counsel these 12 L.Ed.2d 977 a Sixth Amend- the formal attachment of Sixth superseded by ment case that was Arizona, Miranda v. Moore, guarantees Kirby deci under these 1602, 16 L.Ed.2d 384 U.S. 86 S.Ct. with the in conflict are sions par- 689, subsequently limited to its majority’s understanding of the Sixth Amend facts, Illinois, Kirby ticular ment. (1972);