United States v. Eugene R. Frazier

Judge, BAZELON, Chief Before TAMM, McGOWAN, LEV- WRIGHT, MacKINNON, ROBINSON, ENTHAL, Judges, WILKEY, ROBB, Circuit sitting en banc. Judge:

McGOWAN,Circuit only the court before issue appeal from a conviction in this en banc 2901) robbery (22 D.C.Code of armed § erred in the District Court is whether that, on the evidence be its conclusion it, had sustained fore the Government knowing establishing a its burden right by appellant to inde waiver legal pendent his arrest. assistance Arizona, S. Miranda v. U.S. 1602,16 L.Ed.2d 694 Ct. pan- the case first the was before a District Court affirm the con- When and thought court, majority el of this viction. appearing prosecu- a circumstance tion’s evidence at trial raised a doubt I the state of mind in making seeming waiver, the war- hearing, Sandy At the remand Officer supplementary ranted a for a in- remand Metropolitan Department of the Police quiry. Frazier v. United 136 U. appellant testified that he had arrested S.App.D.C. (1969), 419 F.2d 1161 September un- at 4:15 on P.M. Judge (now Justice) Circuit Chief remand, authority der an arrest warrant the Burger, dissenting. On an evi- robbery respect issued in of a dentiary hearing was held at which the Mike’s business establishment known as presented testimony Government with Carry-Out Shop.1 The arrest made was respect appellant’s capacity to to under- Sandy street, promptly read proper warning concededly stand warning appellant the Miranda on a given him; and the District Appel- card Form known as P.D. findings of fact from which it concluded response say: didn’t lant’s was to “You Although capacity that such existed. place. have to read it to me the first findings rejected by none of these rights.” my Appellant already I know panel on its second consideration of precinct was station then taken to the case, majority reversed convic- booked. where he was searched opinion tion February in an issued Sandy telephoned Detective Keahon Judge 1971, from which Nichols of the Robbery Squad police headquar- Claims, sitting United States Court of procured officer ters—the who had by designation, granted dissented. We re- issuance the arrest warrant —to rehearing sharp en banc because the and port appellant’s asked arrest. Keahon persisting panel differences within office, brought to his suggested although case, some- Sandy and throughout done. testified that that was thing sport facts, of a on its period no fur- this he had important implications respect with appellant; ther conversation with judicial responsibilities definition of the coopera- completely was of law enforcement in the ad- officers tive, apparent himself, command ministration of rule. the Miranda On and not under the influence of alcohol remand,

the record made on we sustain narcotics.2 offense, July that, 1. This committed on effect. He added after same appeal us, precinct is not source of before the search station which robbery up appellant’s person, which involves rather $103.00 turned on August 24, Sandy telephoning Keahon, Meridian Market and while was Appellant, initially pleaded guilty following inter- he had the [McGinnis] arrested, change the crime for which he was with relation with ultimately charge robbery went trial on that still another which had occurred having morning: been committed to St. examination, Elizabeths a mental I asked Frazier: did And Mr. Where competent money which found him stand trial this come from? From hold- up morning? and free of mental disease. Before the me and He looked at finished, however, this, said, going trial “You are not to believe sought plea guilty lady up.” substitute I didn’t hold that He said, leave do so. He sen- “I was store.” He years, guy up to a term tenced of two to seven held them he running concurrently out, said, with the sentence of ran “I ran him.” out after years imposed said, away.” him, got five to fifteen case. He “He I asked judgment appealed. said, you go That has not been “Did back and see lady, got see if she hurt? McGinnis, patrol said, got “No, away, 2. Officer was on 'so I who And he Sandy arrest, going at the time of the testified didn’t back.” bother appel- happened in Keahon’s then described testified Detective P.M. at 5:20 follows: to him delivered lant was sat removed His handcuffs were The defendant A. to write. started Only one at Keahon’s desk. in a chair anything said, “No, put don’t Frazier engaged other other any- said, officer— He “Don’t write down.” Squad large Robbery duties—was office, thing.” other noise or and there was Q. objection strenuous an was How distracting be disturbance that that, your opinion in ? telling hearing. After interfere with me, Well, A. didn’t wasn’t—to he under which warrant said, just objection. seem like an He appel- arrested, read to Keahon had been So, press it “Don’t write.” I didn’t at card, a P.D. and also P.D. 47 lant the that time. warnings the Miranda form which states Q. Why? speak.3 Both to consent and contains a read, admitting to Well, to forms were he A. was if he un- he He was asked warnings, to start hold-ups did. didn’t want and I replied long arguing and as he was derstood with him as specifically talking hold-ups. did. was asked he that he He And about right very truthful, have a law- being if to apparently he understood his be- things yer; again positive, telling and the answer about cause he was me hold-ups didn’t want added that he didn’t know. that I lawyer. testi- stop Keahon’s was further him. didn’t want mony that: said, So, he “Don’t soon as anything “I him if he knew asked pushed writing write,” stopped he could or would be us be away. pencil pad against he him in And used court. in record There is some confusion said, did. T know stated he He ” note-taking incident toas whether this rights.’ my appellant had after before or occurred signed P.D. 54 con- Thereafter robbery participation in told of his sent at P.M. form 5:30 trial court of the Meridian Market. that, proce- Keahon testified as these get pains this matter appeared some completed, appellant in dures were broke up, Keahon cleared because Teddy. Teddy say: “I want clear testifying it occurred on remand that hold-up; in that didn’t shoot the woman admission, Market Meridian robbery I did.” This to a reference was testimony indicated at trial whereas High’s of a Ice store. Thereaf- Cream was asked it had been before. quick ter succes- referred during re- to refresh his recollection cess; including robberies, sion to certain other on this his final Carry-Out Shop Mike’s and Meridian point is as follows: point colloquy At Market. some Q. during Keahon, taking noon re- Lt. Keahon decided that should be you opportunity to said, being cess did have an anything down,” “Don’t write some- zier, request you did he not write thing to that effect. anything down? THE COURT: Was this before he A. he mention- was when started anything mentioned about the Meridi- ing High hold-up, after he Store an Market? rights was after I advised his and Yes, THE WITNESS: I believe it had him read the arrest warrant was. robbery-hold-up about the that he was charged with under the warrant of that, all, Detective Keahon testified in Carry-Out Shop. Mike’s appellant hold-ups told of several and one occasion on which he had shot his Q. you Well, after read to him P.D. roommate. The woman who had been Form 47 and after he had executed High’s robbery shot in the Store topic the Form what was the first brought office, appel- down to the and of conversation? lant reenacted incident a such Well, talking A. I started to him way he convinced her that he was Carry-Out Shop about the Mike’s Teddy her assailant and not one Moore hold-up. being robbery. who was held for that A Q. point you At that had reached for victim of one of the other robberies re- pad pencil a ? by appellant him, counted also identified by No, A. aided at that time. volunteered recital robbery. of that events Q. anything Had the defendant said you taking refraining about from The interview ended P.M. around 7:30 notes at that time ? Keahon testified that had been coherent, only cooperative with No, A. not at that time. signs or of emotional disturbance Q. us, then, just hap- Tell what physical At the discomfort kind. pened ? end, by indicated Keahon’s Well, A. it margin, appellant reject- was after that. I don’t forth set in the conversation, suggestion out, know the exact but I ed a or he write talking sign was ry-Out. to him version, about Mike’s Car- written had a of what he

said.4 you pre- put 4. Q. Did make a second effort I and will it the form of a state- pare ment, typewritten statement, the written statement in a you sign events ? would it?” said, said, A. After he had finished and “I’m not told us 1-Ie “No.” He Robbery Squad sign Office, going anything.” he finished and said, it; said, “AVell, you “That’s all I that’s know Then what up. going you.” me, going that’s all I am to write it I’m to tell told him, said, sign you give you I asked “Will us a AVill read it?” your handwriting, said, “No, going sign statement I’m not own And he you repeat you anything will at all.” what have told me ap- opinion morning to be that he present next stated Keahon was pellant unquestionably under- “could taken before comprehend” appreciate stand Commissioner United States meaning. charge. testi- their Carry-Out Mike’s proceeding the record fied—and Stammeyer cross-examination, Dr. On that, as to his full advice recites— agreed although reported that, he had rights, appellant that he wanted “stated finding ap- Elizabeths with pellant St. get hearing he wanted now—that trial, competent to stand not want a he did over with and that personally had not shared view Legal lawyer Aid.” choice or own —of mental disorder. was without Wertleb testified Commissioner pas- disorder as a He characterized that appearance showed that notes of aggressive personality, contributed sive affirmatively that he appellant “stated pattern, per- unsatisfactory life any lawyer.” did not want haps part med- to recurrent due some including problems, cell ane- presented sickle ical third witness A Although closely Durkey. pressed de- mia. Officer Government was light of these disclo- fense counsel He that on March testified modify opinion charge as to sures to his earlier appellant on as- had arrested appellant’s ability gun, to understand then and that sault warnings given Stammeyer’s him, Dr. P.D. 47 card both read to copy keep. was “on basis final conclusion him of it to and a man, my saying I re- not what know about this that he had been Aside from viewing gun, appellant psychological examination possession in of the having going giving record over the and response to the no further conference, participated warnings. in I the staff see no believe that he could reason to at the first witness The Government’s fully comprehend, not did not have Stammeyer, hearing Dr. remand was fully competency capability com- psychologist on the clinical staff St. prehend to him.” read statement Testifying from Elizabeths. the records The no compiled by defense offered evidence at time St. Elizabeths at the hearing. Appellant’s counsel appellant remand was committed for a mental place he stated on the record that would in the examination on December appellant inquiry Stammeyer case, if the the stand Carry-Out Mike’s Dr. at- appellant could be limited to “what his mental testified was at “a man alleged abilities,” average titude the time of the was at least low native or go “possibly higher.” confession and not into the elements even He somewhat elements of the confession or the said that there was “no indication of significant its impairment crime.” The court indicated doubt that would relevant significantly that such matters would be percep- interfere with his out, any event, but, tion;” even if came and no evidence was found of understanding represented “any organic pathology any court its brain such could problems time, the law to be that acute emotional at that against appellant in trial significantly be used never that would interfere with Although guilt defense functioning.” or innocence. his intellectual The warn- repre- accept ings appeared this witness, counsel P.D. were read to the writing Well, I some of it into reduced A. Q. Did he ever indicate that he did not night I you home. was everything, though? went before want to tell working No, tour of the 8:00 A.M. 4:00 A. sir. briefly writing duty. Now, into you reduced Q. did there come a time that my superior, Inspector Sul- the benefit reduced the substance of this conversation livan, writing? he have a brief so that would place summary took on his of what desk A. Yes. morning. came into work in Q. was that? When consulting sentation, against client after with his oral confession would used reported him, replied desire did not that he testify. any- knew thing did that but still not want some ad- written down. Absent The District found Court as facts comparable quali- evidence, ditional adequately repeatedly however, ty, waiver, exposed requisite been Miranda ” his . confession cannot stand . . warnings; he not under the influ- was (Emphasis supplied.) ence of alcohol or narcotics at the time arrest; argument of his the noise level in the In his oral to the court for Rob- bery Squad room to in- reversal ing, appellant’s hear- such as close remand hear; capacity terfere with him- counsel contented warnings gave saying unmistakably simply that, there notice that self with since says, one what from one evidence adduced as distinct what signs, supplemented writes or can and in had written will be used court; appellant’s panel, by mental abilities were manner referred to carry comprehend such him to the Government had “failed to enable meaning; heavy Appeals in no burden Court of has way subjected placed involuntary on its .”5 or forced shoulders. . . extraction of evidence. which the Govern burden was, carry had to on placed how characterized ment ever, remand having “gushed upon admissions as out one that was warnings, ap- Supreme Miranda, numerous Court parently put starting [ap- Supreme court. an effort As the pellant] it, person adequate to clear friend of an arrested must be ly “anything apprised crime that ... committed and said can not, his friend had and then will be used continued individual crimes, appar- he, these other court.” 384 U.S. 86 S.Ct. at ently, 1625, started, decided that once he had L.Ed.2d And the Govern might includes, as well proof make a clean of.” ment’s burden of breast addi warning circumstances, Under tion to of concluded the fact such a court, showing the question there could no the issue be of is raised—-that —if knowing person capable the the standing intentional of warned was of under nature appellant’s purpose rights forego it. available to him. question There was no in this case as panel opinion ordering In the remand, warning. to the fact of concern (at it p. F.2d): said 1169 419 prompted panel the to remand capacity Appellant’s “. . . appellant’s ban on note- was state —the taking inveighs against intelligent understanding respect mind and with waiver, warning. opinion but this to the inference be terms of the Its overcome, example, Sergeant if indicated that should further there be light Keahon admonished him evidence taken on that even an which would shed approach 5. This had been foreshadowed Keahon made a further admonition of very beginning hearing. panel that, the of the remand kind referred Stammeyer presented prove Dr. When as a if the Government could that he not witness, objected had, counsel reversal must ensue: testifying ground interpose expert surely on the You THE COURT: testimony appellant’s capacity being compre- as to the defense of unable to comprehend only would be relevant to a hend or understand? guilty by disagree. defense not in- reason of MR. O’MALLEY: sanity. following colloquy not, you If THE between COURT: do Appeals court and counsel is indicative Court did. apparently object fact counsel MR. O’MALLEY: I would believed only purpose testimony. of the in- remand introduction of this quiry Sergeant was to determine whether THE COURT: will admit it. adding we, hearing,” appellant, Simmons citations question; unlike that, 389-394, States, 377, saying opinion 390 U.S. v. United as do not read (1968), 19 L.Ed.2d that he testified S.Ct. Detective unless Bailey U.S. language of the on had elaborated (1967), gloss legal App.D.C. 389 F.2d 305 warnings by putting a formal reassuring appel purpose of no the obvious fail upon it, must Government nothing in that testi he said forth- lant evidence was other matter what prove mony used him could be coming. offenses. of criminal the commission hearing, the Gov remand At the out, appellant it turned chose not As task. to this itself ernment addressed leaving testify, no court with di- regard was principal witness in this Its appellant himself evidence from rect ex Stammeyer, as an testified who Dr. why he had his statements asked that precise question of pert witness noted down. be Confronted capacity to appellant had the whether situation in which an similar meaning of the understand testify hearing failed to whether given. unrebut That Miranda, rights he had waived his surely com ted, District warning, Hayes, 385 United States v. F. finding it that no error mitted cert, (1967), denied, 2d 375 capacity. But appellant possessed such L.Ed.2d 106 capacity exists, some it is even where (1968), Circuit, speaking the Fourth be can true that times through Judge (at Sobeloff, p. Although fully faulty able or mistaken. ’ 378): plain words to understand “ appel produced warning, may [Appellant] . have been that . . putting through quirk ap- lant, misinforma witnesses some parent otherwise, did them at take tion or intellectual endowments. Moreover, noteworthy value. that at no their face stage proceedings ap- has issue, course, there was On pellant ever denied that understood only who could useful— one witness warnings given him, and while a himself. and this was obligation defendant does not unlikely member seems most testify himself or to offer testimo- thought remanding panel than other ny, supply cannot evidence critically im- would be a ” lacking . . . hearing. portant on the remand witness here, appellant panel So has opinion majority never asserted In the was at its “ misinterpreted that he pains [Ajppellant, misunderstood or to some remark that warning.6 given testify course, may the words of of the wish at that When to appellant U.S.App. McNeil, the fact that had testified at In United States v. pretrial suppression hearing, (1969), the and that 433 F.2d the de D.C. judge accept pretrial suppression “the could at face value a testified at fendant appellant’s testimony hearing hearing not, contrary own at the that he had sign acknowledgement given that he did arresting testimony, the officer’s been form, any warnings requisite not for stated reason that the Miranda at the warnings, police did not understand the but arrest. Both time of his the officer simply sign because was adverse to and defendant also testified at that hear ing anything ing latter, at all . . .” also See the that the after arrival Pettyjohn U.S.App. stationhouse, sign refused a form to denied, (1969), acknowledging D.C. 419 F.2d cert. that the he understood trial, warnings. 25 L.Ed. U.S. the At renewed counsel (1970), appellant’s suppress, asserting 2d 676 testi where that defend motion to mony sign anything sign he had refused to indicated that ant’s refusal the form urged establishing warnings. lack of his he did not understand the warnings. rejection of This the of The District Court’s persuaded by upon court was not con argument affirmed court doing so, tention. appeal. stressed In this so, opportunity protec- under to do the we think Neither do hearing, any tions of the conviction theory be reversed on remand he failed to should Contrarily, shabbily take it. the evidence was so supported police was before the District dealt with that emanations Court finding capacity understand, point from the Due Clause to of his Process any appears clearly as well of wards as an absence coercive or that result. confusing from influences the record that had al communica- ready police. most tions with the Under confessed his serious crime these cir- (the High’s cumstances, robbery not see armed Store we do how the Dis- employee) trict which he Court can be faulted its shot a female before conclu- episode note-taking sion that occurred. From has Government sustained establishing standpoint, pro knowing its Detective burden of Keahon’s began voluntary cession of admissions which waiver. primary follow were of interest as clear In its consideration of the case after ing records, secondary police remand, majority panel ap- importance appellant’s terms hav peared to that, the view since Kea- ing voluntarily put himself in the toils expand hon failed testimony to in- purpose of the ing in reach law. Keahon’s clude a statement that he had in fact ex- was, pencil paper as he tes plained legal that the rules tified, simply keep track what was governing admissibility of evidence pouring from mouth distinguish do not between oral and High’s heels of Store confession. confessions, written was, there within stopped been Had the interview meaning opinion, of the remand note-taking, appellant objected to the “additional evidence” relevant to waiver utility of would not have that confession forthcoming. Further, majority ap- Thus, been it does not affected. seem pears to that, have concluded absent suggestion us that there can be testimony, such an element of coercive- deliberately luring appellant Keahon was ness least unfair treatment dangerous deeper into the more wa picture. has entered the Appellant ters criminal admissions. already plunge. think, contrarily, We taken that that Dr. Stam meyer’s testimony signifi highly was a Moreover, remind that one of the obviously piece cant and relevant of “ad purposes of was to introduce Miranda evidence,” basing ditional as it did a period regular- post-arrest into the more finding capacity had the eliminating high procedures, ized de- comprehend gree informality variability finding, were tainly to him. That cer heavily which contributed to the evils of in the absence of interrogation. Witness the stationhouse appellant, speculation remits to sheer Supreme care with which the Court spoke why appellant reason as he did spelled precise out the character note-taking. with relation to doWe given, warning to be words of and the think speculate required the District wide extent to law enforcement it, about nor do we. isWhat authorities embodied such warn- have interpretation clear is that which ings printed on cards hetec verba panel majority placing insists in arresting by be used officers. We doubt upon simply specula it is of one several of Miranda the warmest friends hypotheses might indulged tive which be days in, by wish to when see a return of which means all are incom patible although officers, lawyers legally with sufficient such a waiver.7 understanding supra, McNeil, of the warn- In this court said lated to an note 6 readily Judge ings.” Nichols’s dissent envision see “one can reasons And sign acknowledg- panel’s decision after this for a declination an ease from warnings entirely ment are remand. of unre- legal themselves, free advice prisoners. to their is case the admissibil- At issue ity legal made Fra- place certain statements a It was not for police during the interro- language zier course interpretation of Miran- on gation. undisputed give, that Frazier is directed to he was da rights under Miranda suspend of his was advised the interview or to to continue Arizona, interpreta- v. what that in accordance with prior (1966), the on- 16 L.Ed.2d 694 He had warn- tion be. interrogation. it also signi- And ings of the set agreed required; as signed state- that he a written and his wish fied his protection waiving of those present; ment lawyer talk without interrogating rights. already But as soon as most se- confessed a had indeed attempted is, course, “Confessions,” Supreme pelling admissible of the influences Court ” proper of Miranda,, P. 384 . . . 478 element in law in evidence “remain a U.S., “given p. enforcement;.” any of 86 S.Ct. 1630 and statement voluntarily any freely corn- without

900 hold-ups. . . about . off [H]e does not understand is better things telling nothing hold-ups me about that I is told all. than one who stop understanding, didn’t know. I didn’t want full the Without warn 2 So, said, ings “preliminary simply him. soon ‘Don’t ritual.” are

write,’ stopped writing pushed majority today Fra The concedes that away.” pad the may zier not the have understood warn ings But before he made his confession. interrogator, the Thus commenda- nonetheless, finds, the the that candor, absolutely ble clear government meet its burden —and can because he of was aware the offering proof by it has met misunderstanding here — not to risk elected warnings have been any clarification fear showing making the issue “a talking. stop —if Moreover, would is of person ca warned was raised —that importance critical trial court’s warnings. pable understanding” of findings did not indicate the court had supra. Majority opinion at 896 significance even considered the Fra- of notetaking. Accordingly, zier’s ban on posed course, problem by this Of when the case returned court for warnings case exist would not if time, gov- the second we held that possessing no one so clear prov- ernment not of met its burden intelligence possibly could even minimal ing that Frazier’s statements were capacity to misunderstand them. But product intelligent knowing of a warnings does not understand waiver, and we held the statements guarantee ac means will inadmissible.1 is that decision which tually em The available be understood. has now béen overturned the court en pirical clearly evidence indicates banc. most, many, do not un if not defendants purpose warnings The of the Miranda warnings,3 derstand the even where convey suspect. is to information intelligent well are defendants Plainly, something one who is told The likelihood of under- educated.4 panel opinion repro- 1. The Interrogation, in this case is and Police Powerlessness Appendix opinion. duced as an (1969) to this ; 314 see 60 J.Crim.L.C. & P.S. Note, Interrogations in Haven: The New Arizona, 2. Miranda v. 384 86 U.S. Impact Miranda, of Yale 1519 L.J. (1966). 16 L.Ed.2d 694 (1967). study Supreme recently 3. The authors of an extensive field reversed the The Court implementation perjury of Miranda in of a movie conviction well-known jurisdiction producer unresponsive arising concluded: from his ratings per misleading question The indicated cent answer to a “post-Miranda of the 85 defendants” bank accounts. Chief Justice Swiss right Court, Burger, writing failed to understand the to silence for a unanimous warning, per cent failed to understand observed that: warning right presence pressures the counsel, and tensions [u]nder per interrogation, cent failed to under- uncommon for ap- right give stand the pointed the most earnest of witnesses to entirely counsel. are answers responsive. Medalie, Alexander, & Zeitz Custodial a witness does Sometimes Interrogation Capital: question, may in Our Nation’s not understand Attempt Implement Miranda, apprehension The an excess of caution or (1969). Mich.L.Rev. too much or little it. read too into possibility authors also considered the Bronston v. United methodological study. bias in their Their 93 S.Ct. 34 L.Ed.2d 568 anything, conclusion was “if our results underestimate the rate defendants’ went to observe that where misunderstanding warnings.” interrogating lawyer is confronted with possible misunderstanding: Id. at n. 101. In another article such a data, on the same based different methods . . . the examiner’s awareness analysis unresponsiveness led to the same conclusion. should lead him to . Zeitz, Anomie, Alexander, press & Medalie another or reframe his interrogation, where, where, necessarily time of the standing reduced the is something says suspect suf- 28-year here, has the or does old defendant the as put for a man on notice cell anemia ficient to reasonable with sickle afflicted been many drugs warnings may to not been years used narcotic the though mitigate a pain.5 even waiver understood signed, interrogation stop un- the must however, say, Mi- is not That all til matter been clarified or the has every inquiry case requires in randa in- statements elicited thereafter will be capacity special understand into the panel a The concluded that admissible. case, warnings. the the If that were the government police officer would have de- reasonable validly contend that could on of ob- termined the basis Frazier’s police to panel the the “forces decision may jective not have behavior that he then blames become mind-readers meaning warnings. grasped the the of wrong.” fact, guess In the they if them requiring police from Far the officer government’s rests a com- contention mind, our read Frazier’s earlier decision misunderstanding panel the plete of required only up that the officer a clear opinion. possible misunderstanding would designed prophylac as a Miranda was any apparent have been ob- reasonable precise purpose of avoid rule for the tic police server—as it was to the interro- ing into the courts the morass gator here. attempting slipped by previously fact, judge, in from the the —and II swearing between contest evitable today to what and the accused as court That the should carve out subjective highly transpired precise damaging exception state a 6—the to a funda- every principle disquiet- con mind defendant whose mental of Miranda involuntary. challenged ing enough. as But the court’s en banc de- fession was disturbing a waiver ob cision here is re- In the usual written another case gard. panel a full and The coercion after decision this case tained without meaning substantial, explanation occasioned hostile comment accurate Plainly, rights widespread consequences waiv the news media. ing gov meet criticism of a decision is cause them neither a is sufficient regardless nor a alarm reason to insulate sub ernment’s burden suspect sequent did from re-examination. What decision claim exceptional But this case told. makes what he was understand just pro- precision. greater the two eases. But Miranda initial judge speculating a hibits from Id. waiver, validity juxtaposition of a so Bronston that decision with “conjecture”. prohibits jury a this one cause some confusion about heavy meaning principle “Equal is the re- central concern of both imposed government justice sponsibility recog- under law”. If courts self-incriminatory “pressures it seeks to in- nize use and tensions” on a prominent prosperous professional formation solicited from a defendant. The undergoing interrogation, concern for individual reflected man who is opinion dispositive be Bronston should should be at least as when the solicitous person interrogation poorly case as well. under is a educated and downtrodden individual such report appeared in This information going require If as Frazier. courts are ' to the district St. submitted interrogators precision display Hospital Elizabeths on Feb. questioning Bronston, caution in Samuel predicate perjury conviction, leaves no room or as a 6. The Miranda rule choosing demanding to believe either should at least as occasion those Eugene precon- questioning Frazier, that he did naked assertion defendant’s warnings, or inter- understand dition to a waiver constitutional rights. rogator’s that he believed naked assertion recognize danger had understood. of misunder- the defendant standing arises in different contexts 902 highest officer, nation’s law enforcement -X1 -X- -X- (cid:127)X- (cid:127)X* (cid:127)X* Attorney General, justice ought

the then fit The delicate saw scales of agitated publicly panel willfully out decision lash at the to be by any from with- government’s petition participants respon- while the for re- out of the hearing pending en banc was sible for the of the before fair conduct trial.9 speech court.7 In delivered the Na- Judges Circuit J. WRIGHT SKELLY Association, Attorneys tional District Attorney ROBINSON, and SPOTTSWOOD W. singled it out as General “Case III, concur in Part of this dissent and explanation No. 1” in his of what he un- panel’s majority opinion attached fortunately “public’s sees as the los[s appendix. hereto anas ability confidence in of the of] dispense justice.” courts to I had un- APPENDIX Department derstood that of Jus- Opinions February 24, 1971, issued professed was, policy wisely, tice’s to re- 24, 1971, by September on vacated pending frain from comment on cases the Court en banc: argument and to make its court.8 BAZELON, Judge, Before Chief Attorney General’s deviation from ROBINSON, Judge, Circuit and NIC endangers clearly that sensible rule HOLS,* Judge, Court of United States integrity judicial process. Claims. appeal contempt In an from a convic- public tion of a defense counsel for his Judge: BAZELON, Chief pending case, comments on a Mr. Justice The sole before us is the ad- following Frankfurter issued the warn- missibility of certain statements made ing: by appellant police Frazier interrogator.1 appeal,2 prosecutor In an earlier If we this case had felt strong by hampered rulings found record indications some of the “knowingly judge, the judge did not trial and had assailed the rulings intelligently” for waive his constitutional such at a mass meet- ing, privilege against self-incrimination, followed, a conviction had consequently that his statements were thinkable that inadmissible Court would under Miranda v. Arizona.3 have found that such con- Appellant agreed initially speak prosecutor duct was a constitu- tionally protected interrogator, to the but refused exercise of his free- speech, or, indeed, dom of continue if the officer took written would have “inveighs refusal, said, allowed the notes. This we conviction to stand ? presumed specifically, suggest any judge 7. it must be do not of this Department Attorney aware court was moved Gen- petition rehearing rehearing eral’s Justice had filed a remark to vote for en still that was before the court. tono or reversal on the merits. The vote rehearing completed April 15, Sawyer, 622, 666-667, 9. In re 360 U.S. 1971, long Attorney before the General’s 1376, 1398, (1959) 3 L.Ed.2d speech on June 1971. The order (Frankfurter, J., dissenting). granting rehearing en tone was issued * Sitting by designation pursuant to Title speech, however, after the and the case has U.S.Code, 293(a). Section been under consideration this court expect since then. We cannot that our Appellant robbing was convicted of knowledge that we did not bow to external Market, a term Meridian and sentenced to pressure is known either to the years, § 22-2901. see D.C.Code public. Therefore, or to the that we did U.S.App. 2. Frazier v. not bow does not make less sub- (1969). 419 F.2d D.C. damage public stantial con- integrity fidence of our decision- 1602, 16 L.Ed. 86 S.Ct. making process. 2d 694 Attorney 8. Since the General and his aides critically saw fit refer to this case so average mentality, waiver,” re- told the officer intelligent rights he did hearing specifically af- understood manded for lawyer. He distract- opportunity not want a the Government ford being given any way the ed in while waiver present evidence Judge warnings. remand, District On valid. disagree. waiver, we but a found valid Sergeant then started to ask Keahon plain the Government think We Carry appellant Out about the Mike’s discharge “heavy burden” did robbery, appellant interrupted him establishing that imposed Miranda robbery shooting to at and admit intelligently knowingly appellant and According High’s to the Ser- Market. rights. Amendment his fifth waived admitting geant, appellant per- in to clear another this crime order I charged already with son been who had hearing Govern- pad remand it. for a At The officer reached showing the Ap- pencil evidence introduced to ment transcribe confession. following Appellant pellant, was arrest- however, facts.4 “Don’t write said: Sep- you anything the afternoon tell about 4:15 on down. will ed about I n any- for the 1966, you 7, a warrant on this but I don’t to write tember want Appellant put Carry thing Sergeant robbery Out. Keahon of Mike’s down.” nothing. Appel- to rights,5 pad and taken of his down the and said was advised arriving, Squad office, description aft- Robbery of the lant continued his briefly p. High’s episode, m. processing, touched about 5:20 Market er at then, crime, on about five another Sergeant read Detective transcrip- minutes he had barred after appellant6 and to Miranda statements, Me- admitted the tion of his warnings, gave which copy of the him a robbery, which ridian Market the crime ap- Sergeant read then he read. A little while underlies this conviction. form,7 Speak” pellant “Consent High’s appellant re-enacted the later signed at 5:30 appellant read which robbery for the benefit of sever- p. at least low Market Appellant, m. a man anyway.” De- Appellant in other cases admissible at offered evidence replied prepared Appellant’s “I hearing. counsel : am not fense failure remand accept colloquy continued testify may that.” The result of con have been the conferring appellant then, part appellant on the fusion times, counsel announced: several defense that could be the use counsel Honor, although testimony, I in have counseled with “Your we had of his appeal prior and he at this time does the rules defendant dicated on States, take the desire to stand.” v. 390 U.S. of Simmons United (1968) 377, 967, 19 L.Ed.2d 1247 88 S.Ct. officer when 5. A testified that U.S.App. Bailey States, 128 v. United appellant warnings, appellant gave (1967), 354, 389 F.2d 305 would D.C. read it “You didn’t said: stand, protect appellant take the if he did place. already my first know me 2, States, supra note Frazier v. United Appellant rights.” had been 36, U.S.App.D.C. n. 419 F.2d at 188 136 by police, copy warning form used n. 36. 1169 6, infra, note when had been see case, After the Government rested its arrested March 1966 for another (not offense, 19, counsel his counsel see note infra. appeal) said: Department read The Police Form 47 inquiry If could limit to what printed Pettyjohn his mental condition was at the time of U.S.App.D.C. 69, 136 70 go alleged confession and not into (1969), 651, n. cert. n. F.2d the elements of the or ele- confession denied, 90 S.Ct. n place crime, ments of would L.Ed.2d 676 on the defendant stand. proba- gave Department The court then its view of the 7. The Police Form concluding scope examination, signed printed ble read and something Pettyjohn States, supra even does “if come out about note v. United activity], [criminal would not be n. 419 F.2d at 653 n. 4. [it] at 71 identify who unable to mit his al witnesses statements be reduced to writ- sight. ing, questioning despite emphasis point ended him our prior opinion. p. view, m. said: our In our the evi- about 7:30 it; I know and that’s “That’s that’s all dence introduced the Government going you.” Sergeant support appel- all I am to tell cannot the conclusion knowingly intelligently Keahon then to write lant asked waived sign rights. out or to a statement himself his Fifth Amendment typewritten summary of his confession. Miranda the warn teaches that after “No, Appellant refused, saying: I’m not ings given, “the is en have been accused going sign anything.” He was then titled to the assistance of counsel before Throughout taken to cell. the entire his questioned and, effect, any he is investigation appellant cooperated with confession he in exclusive makes while police courtesy and was treated with police arraignment custody prior by them. ”9 presumptively . . . . inadmissible When the continue to II suspect in the absence of counsel a con if, only if, fession the ac The “can stand trial court concluded that affirmatively standingly “heavy cused and under Government carried its burden” rights.”10 establishing validly waives his In order for a against privilege effective, waived his self-incrimi- waiver be the accused must consequences realize the particular nation. that conclusion was based his act—in Since any on the uncontroverted facts he must understand that record, thing says and not on an can be used assessment and will against credibility witnesses, only “It is settled him court. good through position we are in as the Dis- conse an awareness Judge quences trict to determine the effect of that there can be assurance significant highly intelligent that evidence.8 It is of real ex 11 Furthermore, privilege.” in this the District connection that ercise of the Judge govern gave express heavy consideration “a burden rests per- appellant’s the effect of refusal to ment to that the defendant demonstrate States, U.S., See, g., Miranda, supra v. at 469 8. e. Judd 89 U.S. note 3 of 436 United 649, (1951) App.D.C. 190 F.2d 652 at 1625 of 86 S.Ct.: (“The surrounding in- real issue is whether the evidence circumstances Government, custody interrogation operate very taken at full can offered required standard.”) ; value, quickly meets to overbear the will of one States, merely privilege by F.2d made Weed v. United 340 827 aware of his (10th 1965). interrogators. Therefore, right also E. F. Drew Cir. See 679, (2d present Reinhard, interroga- & F.2d 684 have counsel at the Co. v. 170 1948) ; Land, U.S.App. indispensible protection Cir. Dollar v. 87 tion is to the 248-249, 214, 217-218, 245, privilege F.2d the Fifth Amendment under D.C. 184 denied, 884, today. system rt. 340 71 S.Ct. we delineate Our U.S. ce 198, (1950) ; L.Ed. aim is to assure that individual’s 95 641 States United (7th right Ziemer, 100, v. 291 F.2d 103-105 to choose between silence 877, speech throughout Cir.), denied, unfettered cert. 368 U.S. 82 remains S.Ct. interrogation process. 120, (1961) (Hastings, J., L.Ed.2d A once-stated 7 78 C. ; Corp. warning, dissenting) delivered Wabash v. Ross those who will (2d interrogation, Corp., 577, cannot itself Electric F.2d 598-603 conduct 187 U.S, among Cir.), denied, 820, to that end those who cert. 342 72 suffice S.Ct. require 38, (1951) J., knowledge rights. (Frank, most of their 96 L.Ed. 620 con curring dissenting). g., But e. of. States, supra Frazier note Stephens, 325, Maxwell v. 348 F.2d 336 U.S.App.D.C. 185, 2, at F.2d art (8th Cir), denied, 944, cert. (emphasis added). 15 L.Ed.2d 353 supra Arizona, supra 9. Frazier v. United note 11. Miranda v. note 3 U.S.App.D.C. U.S., 419 F.2d at of 436 at 1625 of 86 S.Ct. Supreme said writing knowingly intelligently write,” stopped pushed waived privilege against pad away. self-incrimination.”12 A the accused determination whether says The Government it dis requires valid waiver charged “heavy its burden” evidence particular facts and cir- examine “the interrogated was not surrounding cumstances [the] case,”13 oppressive subjected manner nor appeal ap- physical coercion; prior psychological in the

We said pellant’s note-taking that he ban on creates several strong times, them, implication said he understood and had “[t]he thought capacity his confession sufficient mental to understand against long them. Absent taking could not used him so ban on note- be nothing indeed “[t]here was committed to noth [would be] writing.”14 ing surrounding implication We circumstances But we added:16 parable Absent some additional waiver, however, him, evidence anything written down.15 oral confession monished stand. knew that but still that] [that] overcome, [appellant] quality, would be Sergeant his confession that even an evidence, did not want example, used replied cannot com- [by ad- ' possibility ment could make no tion, or otherwise. ment that he was otherwise informed officers, by prior to his may tion that the officers said he was told.” peculiarly susceptible should have alerted the well have consent court, appellant misapprehended attached a of a thought misunderstanding. speak, experience,19 -there is use peculiar that the Govern a condition that officers an oral state interpreta by educa condition evidence what But He forthcoming. No such evidence was appel The contends Government crystal The record makes it clear note-taking lant’s ban sarily does not neces appellant’s the officers failed to correct apparent misunderstanding by explain- mean that failed to un — consequences derstand the of an oral ing to him that an oral was confession says Appellant, confession. Govern damaging as a written one—because ment, “may have reasoned that if he stop were afraid he would talking.17 ever his decision to decided recant Sergeant Keahon stated with commenda- talk, deny he could . . . ble candor that anything [,] it then his and would be arguing against police didn’t want to start with word that of the [in telling about [appellant] hold-ups. me things long . as he was . hold-ups . [H]e talking that I number of conceivable lation fits the court].” ^[20] At facts best, however, only as well as explanations. this specu stop example, appellant didn’t know. I didn’t- want For So, thought barring said, transcription him. as soon as he “Don’t 475, States, supra Pettyjohn 12. Id. at 86 S.Ct. at 1628. note 18. v. United U.S.App.D.C. 76, 6, 419 F.2d at 136 Zerbst, 458, 464, 13. Johnson v. (footnote (Robinson, J., concurring) 658 58 S.Ct. L.Ed. omitted). supra 14. Frazier v. United note previously 19. That been U.S.App.D.C. 419 F.2d at only made arrested in March 1966 and 1168. exculpatory not demon- statement does 15. Id. at 419 F.2d at 1169. that he knew that an oral con- strate against him fession could be used 16. Id. court. Compare Appellee (footnote Nielsen, United States v. Brief for at 9-10 (7th , 1968). omitted). F.2d Cir. meaningful protection clear a friend make that his statements he could education, charged neither been with a crime21 man who has experience, who had preventing the the counsel that would at the same time nor while police against informed deci- using confession enable him to -make an his being any event, specula- mere technicali- him. In sort sion. Far from ty, this system it of a tion cannot meet the Government’s bur- touches heart ruling justice purports of its treat all case law as den—established waive his well inference that affirmative and as the law this case as set down prior appeal Fifth appellant did not convincing evidence the Amendment —of rebutting privilege.22 validly with preliminary then Miranda were satisfied here: citizens If we were Miranda would indeed equally ritual.” under uphold the law. For the forms of confession, become offi- “a suspect warnings, cer purported read Ill rights. But Mi- to waive his plain requires interrogat- rule us of Miranda requires randa more of the Supreme ing requires only reverse conviction. them officers. has often that waiver stated warnings, also recite the right is self-incrimination questioning the accused certain before any doubt ineffective if rights, there realizes that he understands his understanding of the full speaking, with consequences intel- ample there voluntarily Since privi- ligently waives consequences.23 to doubt understand- lege police reason offi- of silence.26 Where ing here, improper for the dealing cers ill-educated are statement, er- spe- officers to suspects, they receive have a uncounselled it. signs for the trial to admit obligation ror cial be alert incriminate himself his own The Fifth Amendment ple sons teaching do we would be It is speak so, fundamental ; the Miranda rule it ensures not our will.” Miranda of Miranda. But in the unfettered ^[24] role to to a democratic compelled to conclude “unless he chooses no individual reflects a protects is exercise of designed to all society. princi plain need per him in terms bring such misunderstanding an oral confession would be used until ings. officers had the accused understood Yet court, admonishing- appellant could lawyer warnings clearly comprehend. took no further halting could ample or confusion. home reason obtained—to questioning the warn- him in steps— doubt Here even 893, supra. by appellant’s page own 21. See sign nothing,” simply 140 U.S. “wouldn’t speak Appellant’s if the officer refusal 22. App.D.C. 7, n. 433 F.2d at 1113 23. at distinguishes case from Capitol Americans For Travel Charter In- Inc., Airways, ternational Intervenor. AIR

NATIONAL CARRIER ASSOCIA- TION, INC., al., Petitioners, et

v. BOARD,

CIVIL AERONAUTICS Respondent, al.,

Dan-Air Services Ltd. et Intervenors.

AVIATION CONSUMER PROJ- ACTION Petitioners, ECT,

v. BOARD,

CIVIL AERONAUTICS Respondent,

Capitol Inc., Airways, International

Intervenor. People Defore, Medalie, Alexander, 27. See In- N.Y. & Custodial Zeitz Capital: (1926) (Cardozo, J.). terrogation 150 N.E. Our Nation’s empirical Miranda, study Attempt Implement For an Mich. which concludes spirit the letter of Miranda are L.Rev. jurisdiction, often violated see notes what was portions of the read from pad pencil. certain for reached What you “Anything say can be used P.D. P.D. 47 and 54 contain the same you language warning rights; in court. and advice right have to talk to law- “You and there no issue raised as to the re- yer question you sponsiveness language advice before to the you during ques- requirements. and have him with Miranda tioning. included these statements relevant lawyer you appeal: afford a “If cannot issue which is raised on this lawyer provided right one, a will be “You remain want silent. you.” required say anything You are not any any to us time or to answer questions. original transcript something trial this re- He did mention gard? that afternoon. And then he started saying, “Well, care,” I don’t some- Yes, A. sir. thing effect, to that and he started Q. your And has that refreshed rec- High’s hold-up, into the Store where ollection as the events which took Teddy Teddy he said was involved and place September the afternoon woman; didn’t shoot the shot the “I 1966? woman.” Yes, A. sir. At that time was when I did reach Q. September excuse me. pad for the to take notes. started Going events, sir, to those back will At that time he stated he didn’t you your point tell in- us at what said, want notes taken. He defendant, terview Mr. with the Fra-

Notes

notes objected to take written officer to Kea- rious crime before he statements, starting Frazier refused on cannot Frazier’s take notes. We hon’s However, circumstances, the officer how, to continue. see under notes, making contemporaneous allowing appellant pursue ceased Keahon’s talking keep did further statements. make desire to on Frazier his evident deceptive here issue confession at tac- The either an unreasonable falling during period part, involved a the latter short tic on Keahon’s liberty the notetak- concepts not discussed before which crime those of ordered ing concept in this case of due incident. are at the core whether, present- process. unusual facts “heavy ed, government met bur- its the waiver administration of Wise proving the waiver was den” of course, is, of central the Miranda rule intelligent. knowing and importance to the health continued promulgated itself, first reached When the case the rule which was court, panel explicit that Frazier’s upon premise it could concluded validly police unwillingness his statements to have waived.8 When writing may signalled here, faithfully have, the ex- followed recorded part Supreme procedure prescribed assumption on his act mistaken Court, used only could be inferior courts should be slow written statements enlarged respon- against mandate, fact, him. Frazier after the U.S.App.D.C. F.2d 1161 to the duties and sibilities alien training event, policemen. remanded In We therefore gov- us for see no in the record before to the trial court afford basis case overturning opportunity resolu- to meet its bur- the District Court’s ernment knowing upon intelli- showing re- tion of the issue entrusted to den gent demonstrating, for exam- mand. waiver ple, had been admonished that Frazier Affirmed. would be oral confession that “even an replied he] him and [that used BAZELON, Judge (dissenting): Chief not want but still did knew that However, anything written down.” I dissent from the decision interrogator remand, stated today because seems to me man- why Frazier: he did not admonish ifestly error, but I am also concerned arguing with “I didn’t want to start the circumstances under talking long [appellant] as he was this decision has been rendered.

notes took States, supra Arizona, supra Pettyjohn v. note 23. v. note 3 United Miranda McNeil, U.S., 1602, 6, 140 L.Ed. v. U.S. 86 S.Ct. 16 States 475 of 436 United (1969). Alabama, 3, App.D.C. 694; In Blackburn 361 433 F.2d 1109 2d v. cf. U.S, 208, 274, Pettyjohn only 199, of misunder 4 L.Ed.2d indication 80 S.Ct. Zerbst, standing appellant’s (1960). refusal was the 242 also v. See Johnson States, 13; sign typewritten supra statement note Glasser v. United after Pettyjohn 60, 70-71, 457, L. had made. The 86 confession been S.Ct. U.S. specifically distinguished (1942). case Ed. 680 ground, 136 Frazier’s on this U.S. from Hogan, Malloy 24. v. U.S. App.D.C. 655. Similar 419 F.2d at 1489, 1493, 12 L.Ed.2d 653 only ly indication of mis in MeNeil refusal was the Arizona, supra 3 at 25. v. note Miranda sign acknowledging a form U.S., 86 S.Ct. 1602. 476 of 436 warnings, again understood the supra v. Frazier made. The inference See confession been U.S.App.D.C. n. at 185 had mis note this refusal that McNeil negated n. 24. at 1166 F.2d understood recognize vulnerable we are We AIRLINES, INC., TRANS WORLD should the old criticism that criminals Petitioners, go blunder.27 for the constable’s free v. case involved But the error BOARD, egregious AERONAUTICS CIVIL ordinary blunder. Respondent, constitutional basic failure to observe a al., Lynn et Intervenors. M. Tschirhart ready to requirement. we are When type, we will of this overlook errors AIRWAYS, PAN AMERICAN WORLD effort all the once abandoned Petitioner, INC., justice quality to all extend the same v. ignorant edu persons, as well as the BOARD, CIVIL AERONAUTICS cated, poor the rich. as well as Respondent, Reversed. Association, Carrier National Air al., Inc., et Intervenors. Petitioner, INC., AIRLINES, AMERICAN v. BOARD, CIVIL AERONAUTICS Respondent, Association, Carrier National Air AIRWAYS, INC., Petitioner, SATURN al., Inc., et Intervenors. v. 72-1908, 72-1905, 72-1904, 72-1942 Nos. BOARD, CIVIL AERONAUTICS to 72-2044. 72-2042 Respondent, Appeals, United States al., Dan-Air et Services Ltd. Circuit. District Columbia Intervenors. Jan. Lynn Michelle TSCHIRHART and Paul Jeffrey Tschirhart, Petitioners, BOARD, CIVIL AERONAUTICS Respondent,

Case Details

Case Name: United States v. Eugene R. Frazier

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jan 26, 1973

Citation: 476 F.2d 891

Docket Number: 23528

Court Abbreviation: D.C. Cir.