US Supreme Court Briefs

No. 99-1702

IN THE
SUPREME COURT OF THE UNITED STATES

TEXAS,
Petitioner, v.

RAYMOND LEVI COBB,
Respondent.

On Writ of Certiorari to the
Texas Court of Criminal Appeals



PETITIONER'S REPLY BRIEF





*Counsel of Rccord
JOHN CORNYN
Attorney General of Texas
ANDY TAYLOR
First Assktant Attorney General
GREGORY S. COLEMAN*
Solicitor General
S. KYLE DUNCAN
Assistant Solicitor General
P.O. Box 12548
Austin, Texas 78711-2548
(512) 936-1700
Counsel for Texas





TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ii

ARGUMENT

I. The Sixth Amendment right to counsel protects an accused only as to a charged offense ....

A. The Court has consistently interpreted the right to counsel as extending only to
charged offenses 2
B. The breadth of the attorney-client rela-
tionship cannot describe an accused's
constitutional right to counsel 4

IL The filockburger corollary applies by analogy
to the offense-specific right to counsel 10
III. Cobb is not entitled to the protection of
Michigan v. Jackson 15
A. Jackson should be overruled 15
B. Cobb never asserted his right to counsel 16
CONCLUSION 20



Pag
e
1
7
2, 14





3
2, 11

Cases
ii
TABLE OF AUTHORITIES
Page
Arizona v. Robe rson, 486 U.S. 675 (1988) 16
Blockburger v. United States, 284 U.S. 299
(1932) 10,11
Brewer v. Williams, 430 U.S. 387 (1977) 12
Davis v. United States, 512 U.S. 452 (1994) 15
Dew v. United States, 558 A.2d 1112 (D.C.
1989) 18
Edwards v. Arizona, 451 U.S. 477 (1981)
pass~
m Holloway v. State, 780 S.W.2d 787 (Tex. Crim.
App. 1989) 18
Kirby v. Illinois, 406 U.S. 682 (1972) 1, 3, 5
Maine v. Moulton, 474 U.S. 159 (1985) passim
McNeilv. Wisconsin, 501 U.S. 171 (1991) passlm
Michigan v. Harvey, 494 U.S. 344 (1990) 4,6, 15, 18
Michigan v. Jackson, 475 U.S. 625 (1986) passim
Miranda v. Arizona, 384 U.S. 436 (1966) 16, 17
Montoya v. Collins, 955 F.2d 279 (CAS 1992) 18
Moran v. Burbine, 475 U.S. 412 (1986) passim
Patterson v. Illinois, 487 U.S. 285 (1988) 15, 17, 18
State v. Carter, 664 So.2d 367 (La. 1995) 18
United States v. I Ienrv. 447 U.S. 264 (1980) 8
Watts v. Indiana, 338 U.S. 49(1949) 10
iii

TABLE OF AUTHORiTIESContinued


Frank 0. Bowman, III, A Bludgeon by Any Other
Name: The Misuse of "Ethical Rules" Against
Prosecutors to Control the Law of the State, 9
GEO. J. LEGAL ETHICS 665 (1996)

8
H. Richard Uviller, Evidence from the Mind of
the Criminal Suspect.' A Reconsideration of the
Current Rules of Access and Restraint, 87
COLUM. L. REv. 1137 (1987) 3,9,
10,
16

Rules
Sup. Ci. R. 15(2)



Other Authorities
Constitutional Provisiotis

U.S. CONST. amend. VI


AKHIL REED AMAR. Tiii~ CONSTITUTION AND

CRIMINAL PROCEDURE: FIRST PRINCIPLES
(1997)
BLACK'S LAW DICI1ONARY (6th ed. 1990)


ARGUMENT

This case presents two different visions of the Sixth Amendment right to counsel. According to Cobb, the Sixth Amendment forbids police from
questioning an accused outside his lawyer's presence not only about offenses charged in an indictment, but also about all other offenses that occurred at
the same time as the charged offense) By contrast, Texas believes that the Sixth Amendment only reaches offenses for which a defendant has been
formally accused "by way of formal charge, preliminary hearing, indictment, information, or arraignment," Kirby v. Illinois, 406 U.S. 682, 689 (1972),
and that a defendant must rely on Fifth Amendment guarantees to shield him from questioning about other offensesincluding those arising from the
same transaction as the charged offense.2 Unlike Cobb's position, Texas's position is supported by the text and purposes of the Sixth Amendment, and by
this Court's jurisprudence.

I. THE SIXTH AMENDMENT RIGHT TO COUNSEL PROTECTS AN ACCUSED ONLY AS TO A CHARGED OFFENSE.

Cobb and his amici contend that the Sixth Amendment right to counsel has more than one trigger. They accept the familiar rule that an indictment
activates the right to counsel as to the offenses charged. But, going further, they argue that formation of the attorney-client relationship also triggers the
Sixth Amendment as to offensesas yet unchargedthat arise from the same transaction as a charged offense. See. e.g., Defense amici, at 12-18. They
unjustifiably warn that, without this additional rule, attorneys will be unable to defend their clients, because the police will exploit unfettered access

'See, e.g., Respondent's Brief, at 11-14; Brief of Amici Curiae the National Association of Criminal Defense Lawyers and the National Legal Aid and Defender Association
(l)efense amici), at 12-20.
2 See, e.g., Petitioner's Brief, at 20-30.


2 3

to uncounseled defendants and will wring confessions from
them at will. See, e.g., Defense amici, at 14-15. Nothing
could be further from the truth. Bringing charges against an
individual invokes a variety of constitutional protections.
But charging a defendant with one crime while the police
continue to investigate another factually related but
uncharged crime does not deny the defendant the guidance of
counsel nor otherwise put him at a disadvantage. If anything,
it disadvantages the police by ensuring that a previously
unrepresented defendant will have the benefit of counsel, not
only for the charged offense which the Sixth Amendment
protects, but also as a practical matter for the uncharged
offense. In any event, Cobb's view of Sixth Amendment
attachment was rejected by the Court over a decade ago. See
Moran v. Burbine, 475 U.S. 412,429-30(1986).

A. The Court Has Consistently Interpreted the
Right to Counsel as Extending Only to
Charged Offenses.

~The Sixth Amendment reserves its cluster of rights only for
"criminal prosecutions."3 The text refers to a distinct
procedural event, i.e., to "an action or proceeding instituted
in a proper court on behalf of the public, for the purpose of
securing the conviction and punishment of one accused of
crime." BLACK'S LAW DICTIONARY 374 (6th ed. 1990).
That language, combined with the amendment's references to
the "accused" and the "accusation," confirms that Sixth



"In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impanial jury of the State and district
wherein in the crime shall have been committed, which district shalt
have been previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted with the witnesses
against him; 10 have compulsory process for obtaining witnesses in
his favor, and to have the Assistance of Counsel for his defence." U.S.
CoNST. amend. VI.
Amendment rights are "accusation-based." AKHIL REED
AMAR, THE CONSTITUTION AND CRIMINAL
PROCEDURE: Fti~sT PRINCIPLES 102-03, 139 (1997). Its
promises accrue only when the government "accuses" by
initiating a "criminal prosecution." Id., at 102-03.

The Court has reinforced this reading by consistently
holding that the Sixth Amendment right to counsel is
triggered only by "the initiation of adversary judicial criminal
proceedingswhether by way of formal charge, preliminary
hearing, indictment, information, or arraignment." Kirby,
406 U.S., at 689; see McNeil v. Wisconsin, 501 U.S. 171, 175
(1991) (quoting Kirby). This rule is "far from a mere
formalism" because "it is only then that the government has
committed itself to prosecute, and only then that the adverse
positions of the government and defendant have solidified."
Kirby, 406 U.S., at 689-90 (emphasis added). indeed, this line
of demarcation is 'fundamental to the proper application of
the Sixth Amendment right to counsel." Moran, 475 U.S., at
431 (emphasis added). Consequently, "[wihen the suspect is
not yet 'accused' in the constitutional sense, the sixth
amendment bestows no protection whatsoever." I-I. Richard
Uviller, Evidence from the Mind of the Criminal Suspect: A
Reconsideration of the Current Rules of Access and Restraint,
87 COLtJM. L. REV. 1137, 1156 (l987).~

Thus, only when the criminal prosecution reaches a
certain procedural stageone where the positions of
government and defendant have "solidified"do Sixth
Amendment rights begin to flower. Kirby, 406 U.S., at 690.
The Court's use of the words "solidified" and "committed"
implies that there are investigatory phases leading up to a
prosecution to which the


~ See also Id., at I 164 (iTIhe offer of the sixth amendment
remains dormant until the actual commencement of legal
proceedings against (a defendant 1. By its terms, and by consistent
judicial reading, the constitutional guarantee of counsel accrues only
to the charged
defendant.").





4
Sixth Amendment does not apply. See, e.g., Moran, 475 U.S.,
at 429-30. To be sure, other constitutional guarantees may
come into play. For instance, if a suspect is arrested and
interrogated, he is entitled to an array of procedural
safeguards arising from the Fifth Amendment ban on self-
incrimination. See, e.g., Edwards v. Arizona, 451 U.S. 477,
484-85 (1981). And, of course, a pre-indictment suspect
may hire an attorney and be advised how to deal with the
police in the event he is questioned. But the constitutional
right to counsel does not arise until the govemment
formalizes its intent to prosecute.

Against this backdrop, McNeil articulated what was
already implicit in the Court's jurisprudencethat the Sixth
Amendment right to counsel, and its prophylactic
counterpart, are "offense specific." 501 U.S., at 175; see
Michigan v. Jackson, 475 U.S. 625, 636 (1986). That is, their
protection is only as broad as the formal criminal
proceedings that give them life. See Petitioner's Brief, at 11,
21. Thus, a charged offense would be covered by the Sixth
Amendment, while an uncharged offenseeven a "new or
additional crime" committed by the defendant under
indictmentwould not. See Maine v. Moulton, 474 U.S. 159,
180 & n.16 (1985).

B. The Breadth of the Attorney-Client
Relationship Cannot Describe an Accused's
Constitutional Right to Counsel.

Cobb and his amici propose an additional rule of Sixth
Amendment attachment. In their view, the attorney-client
relationship itself causes the constitutional right to counsel
to attach to offenses that have not been charged, but that
arise from the same factual transaction as a charged offense.
See, e.g., Respondent's Brief, at II; Defense amici, at 14-16.
Without this "same transaction" rule, they argue, the police
will have unfair access to criminal defendants and their attorneys
will be unable to defend them adequately. See
5

Respondent's Brief, at 11-14; Defense amici, at 29. The rule
is supposedly grounded in the "lay impressions" of criminal
defendants, in the practical necessities of defense counsel,
and in the typically coordinated nature of police
investigations. Defense amici, at 14-15. Amici cite a number
of circuit and state cases as support for the rule, and their
primary authority in this Court's jurisprudence appears to be
Moulton's statement that the Sixth Amendment "guarantees
the accused, at least after the initiation of formal charges,
the right to rely on counsel as a 'medium' between him and the
State." Defense amici, at 7 (quoting Moulton, 474 U.S., at
176).

But as explained above, none of the Court's precedents tie
attachment of the right to counsel to the formation of the
attorney-client relationship, instead, the cases uniformly peg
attachment on reaching a definite procedural stagethe
"initiation of adversary judicial criminal proceedings." See
Kirby, 406 U.S., at 689. Moulton's observation that an
accused can rely on counsel as a "medium" simply describes
the role of counsel once adversary criminal proceedings have
begun. See 474 U.S., at 176. In no sense does Moulton
redefine the point at which the constitutional right to
counsel attaches.
The Court rejected Cobb's expanded attachment argument
fourteen years ago. In Moran, the Court considered whether
formation of the attorney-client relationship itself triggered
the Sixth Amendment right to counsel. 475 U.S., at 428-29.
The defendant argued that the Sixth Amendment should
protect the "integrity of the attorney-client relationship"
regardless of the stage of the proceedings and that the Sixth
Amendment ensures "the right to noninterference with an
attomey's dealings with a criminal suspect." Id. The Court
rejected these notions, explaining that the defendant's
argument
"misconceives the underlying purpose of the right to
counsel. The Sixth Amendment's intended function is




6
not to wrap a protective cloak around the attorney-
client relationship any more than it is to protect a
suspect from the consequences of his own candor. Its
purpose, rather, is to assure that in any 'criminal
prosecutiolinlj,' U.S. CONST. Amdt. 6, the accused shall
not be left to his own devices in facing the prosecutorial
forces of organized society." 475 U.S., at 430 (citations
omitted).

Moreover, the Court rejected the notion that Moulton
supports this "attorney-client" rule of attachment. 475 U.S.,
at 431 ("[Bjecause Moulton already had legal representation,
the decision all but forecloses respondent's argument that the
attorney-client relationship itself triggers the Sixth
Amendment right."). The Court has since confirmed these
principles by stating, in Michigan v. Harvey, that "nothing
in the Sixth Amendment prevents a suspect charged with a
crime and represented by counsel from voluntarily choosing,
on his own, to speak with police in the absence of counsel."
494 U.S. 344, 352 (1990).
In arguing that the right to counsel extends to an entire
transaction, amici seriously misread the "offense specific"
requirement of McNeil. Defense amici, at 13. Amici admit
that McNeil interprets a defendant's request for counsel at
arraignment as indicating that he "might be willing to speak
to the police without counsel present concerning many
matters, but not the matter under prosecution." Id. (quoting
McNeil, 501 U.S., at 178) (emphasis added). But instead of
taking this statement at face value, amici construe it as a
gloss on what "offense specific" means. Namely, they
believe that "offense specificity" must take into account an
accused's subjective perceptions about how far his request for
counsel extends. Thus, amici contend" 'offense specific' . .
.mean[sl only that the crime about which the state wishes to
question [the defendant] is unlikely to be totally immaterial
to the defendant's determination of whether he needs the
guiding hand of counsel." Defense amici, at 13 (emphasis in
original). Amici have turned McNeil on its head.
7

Their principal error lies in the belief that "offense specific"
refers to a defendant's invocation of the right to counsel. Id.
McNeil does not say that. Instead, McNeil emphasizes it is
the Sixth Amendment right to counsel that is "offense
specific":

"The Sixth Amendment right lito counsel] . . . is offense
specific. It cannot be invoked once for all future
prosecutions, for its does not attach until a prosecution
is commenced . . . . And just as the right is offense specific,
so also its Michigan v. Jackson effect of invalidating
subsequent waivers in police-initiated interviews ts
offense specific." 501 U.S., at 175 (citations omitted).

McNeil then links the content of the phrase "offense
specific" to the objective, verifiable offense under
indictment, and not to anything as malleable as an accused's
secret, subjective belief about what his invocation meant to
cover. See id., at 175-76 (quoting Moulton, 474 U.S., at 180
& n.16; citing Moran, 475 U.S., at 431); see Petitioner's Brief,
at 21. Contrary to amici's argument, McNeil discussed the
accused's probable state of mind merely to emphasize that
his Sixth Amendment request for counsel is, as a factual
matter, not equivalent to a Fifth Amendment request. 501
U.S., at
178.

Expanding on their misreading of McNeil, amici speculate
about the possible contours of "offense specificity." First,
they would expansively rely on the accused's "lay impression"
that his request for counsel covers the entire factual
transaction and not just the crime for which he has been
indicted. Defense amici, at 13-14. But defining the scope of
the Sixth Amendment's protections in subjective terms would
be disastrous and utterly unworkable. An investigating officer
can objectively understand the prophylactic scope of a Fifth
Amendment Edwards invocation and, once an accused is
charged with a particular





8 9

crime, an officer can understand a Sixth Amendment
invocation objectively defined by the scope of the charge.
But any expansion of the scope of the Sixth Amendment
invocation unnecessarily forces a subjective determination,
and amici's proposition would require an investigator to
undertake the impossible task of determining the accused's
subjective state of mind before attempting to interrogate
him. That radical assertion has no support in the text of the
amendment, the Court's Sixth Amendment precedent, or
logic. So interpreted, the Sixth Amendment would become
nothing more than a charter for criminal evasion.5

Second, Cobb and amici warn that a charged-offense rule
will hamstring defense attorneys' ability to effectively
represent their clients as to factually-related but uncharged
crimes. Respondent's Brief, at 12-13; Defense amici, at 14-
15. This argument again confuses the scope of the attorney-
client relationship with the scope of the constitutional right
to counsel. The Sixth Amendment does not constitutionalize
the attorney-client relationship; rather, it entitles an accused
to rely on counsel's aid in defending against a criminal charge.
Moran, 475 U.S., at 429-30; Moulton, 474 U.S., at 180 &
n.16.6 But in effectively representing a client, defense


Contrary to amid's arguments, the charged-offense rule demands
no deep legal "sophistication" from criminal defendants. Id., at 14. The
rule requires that an accused merely be able to understand the nature of
the charges. Cobb surely understood that the burglary charge to which
he had confessed did not encompass the murders for which he was
ultimately convicted. See Petitioner's Brief, at 23-24.
6Amici's invocation of the ABA's "no-contact" rule, Defense amici,
at
29 n.8, is a red herring. This Court has never indicated that ethical
recommendations should govern the contours of the Sixth
Amendment, and has in fact strongly suggested to the contrary. See
Moran, 475 U.S., at 427-28 (rejecting as constitutional standards the
"subconstitutional redommendations" of the ABA): United States v.
Henry, 447 U.S. 264, 275 n.14 (1980) (indicating thai DR 7-104(a)(l)
"does not bear on the constitutional question in this case"). See
generally, Frank 0. Bowman,
counsel undoubtedly will consider the possibility that the
client may be more of a criminal than initially thought.
Counsel may also urge a client to disclose the full extent of
his criminal liability for the transaction in question. And
counsel may advise a client that, if questioned by police about
the yet-uncharged offenses, he should end the interview
immediately by invoking his (Fifth Amendment) right to
counsel. Thus, the charged-offense rule cannot prevent a
lawyer from "guiding" his accused client as to police
Investigations of related but uncharged crimes. See, e.g.,
Defense amici, at 15. But the Sixth Amendment will not
assist in that endeavor until his client is actually indicted for
those crimes.7

Amici wrongly suggest that this is a "textbook" case for
applying some form of "same transaction" or "closely
related" exception to McNeil. Defense amici, at 16. The
assertion that Ridley "behaved as though his attorney-client
relationship with Cobb extended to all same transaction
charges" sorely misrepresents the record. See Petitioner's
Brief, at 2-3, 6-7, 29, 45-46; see infra Part IH.B. Further,
Texas has always conceded that the police believed all along
that Cobb knew something about the disappearances. See,
e.g., Petitioner's Brief, at 3, 29, 46 n.l0. But the police's
subjective suspicions cannot influence either attachment of
the right to counsel or its scope. Even if the police and
Ridley assumed there was a pre-existing attorney-client
relationship covering the murder investigation, that merely


III, A Bludgeon by Any Other Name: The Misuse of "Ethical Rules"
Against Prosecutors to Control the Law of the State, 9 GEo. I.
LEGAL
ETHICS 665, 732-33 (1996); Uviller, supra, at 1176-83.

Amici illogically suggest that the coordinated nature of police
investigations should also influence the scope of an accused's right
to counsel. Defense amici, at 15-16. But, again, the scope of the
right depends on the offense charged and not on the degree of police
"cooperation" among different investigations.





10
begs the question whether the attorney-client relationship
describes the scope of the Sixth Amendment right to counsel.
The Court's precedents answer that question with a definitive
"no." See McNeil, 501 U.S., at 175-76; Moran, 475 U.S, at
429-30; Moulton, 474 U.S., at 180 & n.16.

The expansive attachment rule urged by Cobb and his
amici would transform the Sixth Amendment into a device
for outlawing voluntary confession to crime. It would place
an attorney at the defendant's elbow, even if he did not ask
for one, during any interrogation concerning a crime even
remotely related to a previously charged offense. The plain
resultgiven that "any lawyer worth his salt will tell the
suspect in no uncertain terms to make no statement to police
under any circumstances"would be to muzzle confessions
altogether. Watts v. Indiana, 338 U.S. 49, 59 (1949)
(Jackson, J., concurring in part and dissenting in part).5 This
would be a strange and destructive interpretation of the
constitutional right to counsel, particularly in light of the
Court's recent statement that "the ready ability to obtain
uncoerced confessions is not an evil but an unmitigated
good." McNeil,501 U.S.,at 181.

II. THE BLO~KBURGER COROLLARY APPLIES BY
ANALOGY TO THE OFFENSE-SPECIFIC RIGHT
TO COUNSEL.

Cobb and his amici's attack on application of the charged-
offense rule and a "same elements" Blockburger corollary to
measure the extent of the Sixth Amendment right to counsel,
Respondent's Brief, at 27-34; Defense amici, at 20-29,
misapprehends Texas's position. the record, or both. The
charged-offense rule arises directly from this Court's


- "See also Uviller. supra. at 1161 ("to hold that an accused
defendant shall not be interrogated, or even given the opportunity to
speak to the police . . . except with a lawyer on hand. ~% simply to direct
that they shalt not be heard to speak their minds. period.).
II

consistent interpretation of the Sixth Amendment right to
counsel. The same-elements corollary, which mirrors the
familiar Blockburger double jeopardy test, simply reinforces
the charged-offense rule. See Petitioner's Brief, at 26;
J3lockhurger v. United States, 284 U.S. 299, 304 (1932).
The corollary would protect criminal defendants against
mechanical circumvention of Sixth Amendment attachment.
Moreover, its application to this case is fair, contrary to
amici's distortion of the undisputed record.

Amici attempt to establish textually that the gulf between
the Fifth Amendment phrase "same offense" and the Sixth
Amendment phrase "criminal prosecution" forecloses
analogy between the two. Defense amici, at 20-21. Without
citing a single authority, amici conclude that the "narrower"
provisions of double jeopardy are inapposite to the "broader"
Sixth Amendment provisions. Id. Had amici consulted a
dictionary, they would have discovered that the two phrases
share close kinship. "Offense" means, among other things,
the "violation of law for which penalty is prescribed," and,
specifically in the double jeopardy context, "the term means
the same crime BLACK'S LAW DICTIONARY 1081(6th
ed. 1990) (emphasis added). Similarly, "prosecution" refers to
"a proceeding instituted and carried on by due course of law. . .
for the purpose of determining the guilt or innocence of a
person charged with crime." Id., at 1221 (emphasis added).
These definitions confirm what common sense suggests: an
"offense" and a "prosecution" both center around a particular
"crime." But more importantly, this Court has described the
scope of the Sixth Amendment right to counsel as "offense
specific" precisely because its attachment depends on the
formal initiation of a "criminal proceeding." McNeil, 501
U.S., at 175-76. Text, context, and precedent thus reveal closer
ties between the two clauses than amici wish to admit.





12

Amici's argument that precedent forbids cross-pollination
between the clauses focuses on Moulton and Brewer v.
Williams, 430 U.S. 387 (1977). They contend that both cases
preclude a charged-offense or a same-elements rule because in
each the Court, finding right-to-counsel violations, reversed
not only charged offenses but also factually related,
uncharged offenses. Defense amici, at 21-22. In its opening
brief, Texas examined these cases at length, Petitioner's
Brief, at 14-19 (Moulton); 19-20 (Brewer), and showed that
(I) neither case addressed the relatedness issue, (2) the state
neither raised nor briefed the issue in either case and even
conceded Sixth Amendment attachment in Brewer, and (3)
there were alternative explanations for reversal of the
uncharged offenses. See also Brief of Amicus Curiae United
States, at 19-24. Contrary to amici's implicit assertion,
Texas does not contend that Brewer and Moulton were
wrongly decided. Rather, the lengthy treatment in Texas's
brief reveals that its argument was, instead, that lower courts
have read these cases for propositions they do not contain.
See, e.g., Petitioner's Brief, at 20.

Amici also draw inapt distinctions between the respective
"purposes" and "interests" served by the double jeopardy and
right to counsel clauses. Defense amici, at 24-25. It is unclear
what pertinent difference there is between the purpose of
double jeopardy (avoiding "successive prosecutions and ...
multiple punishments for the same offense") and the right to
counsel (protecting an unaided defendant "at critical
confrontations with his adversary"), at least regarding the
definition of "offense." Id. The textual differences between
the clauses are negligible now that McNeil has explicitly
linked a Sixth Amendment "criminal proceeding" with a
specific offense. 501 U.S., at 175-76. But in any event, to
prove the alleged contrast amici must grossly overstate the
interest protected by the Sixth Amendment. According to
amici, that interest is "in having an expert assist [an accused]
in all dealings with a sophisticated and committed adversary."
13

Defense amici, at 25. But this description far exceeds the
narrower, charge-limited focus of the constitutional right to
counsel found in McNeil, Moran, and Moulton.

Without any textual, precedential, or policy reasons to
support their Sixth Amendment interpretation, amici
improperly hypothesize that the police manipulated the
murder investigation in order to deprive Cobb of his
attorney's guidance. But contrary to amici's assertion, the
record contains not even the slightest hint of police
manipulation. Walker County detective Judy James became
involved in this case in January 1995, long after Cobb had
confessed to the burglary. R.2.207. She met Cobb's appointed
counsel, Ridley, in September 1995, when Cobb appeared in
Huntsville to plead on the burglary charge. R.2.21 1-12. At
that time, Ridley told James that he did not object to her
talking to Cobb about the disappearances, although nothing
came of the subsequent interview. R.2.212-17.

In early November 1995, Cobb's stepmother Deborah left
a telephone message with the Walker County District Attor-
ney's Office. R.2.218. The message was given to James, who
called Deborah back. R.2.218-19. Deborah asked James to
speak to Charles (Cobb's father), who told James that he was
worried about Cobb and "wanted to know what he could do to
help his son." R.2.220. James testified: "I told him if he
wanted to help him, that he would have his son call me and
tell me the truth; that Raymond needed to tell the truth."
R.221; see R.2.269. Cobb never called James, but three days
later Charles did, informing James that his son had implicated
himself in the murders. R.2.222-23. Charles also told James
that she should "get a warrant for Raymond because he stated
that he would be leaving there in the moming." R.2.224.

The undisputed events that led to Cobb's arrest and
confession to the murders show, not that the police manipulated
the charges and the investigations to deprive Cobb of his
right to counsel, but rather that they carefully





14

observed every safeguard to ensure both that they would
secure the needed evidence, but also that they would be able
to use it.

Finally, amici's hypotheticals, purporting to demonstrate
the "bizarre consequences" of applying Texas's attachment
rule, Defense amici, at 28, do not articulate any legitimate
harm that will result from applying Texas's rule. The only
harm amici identify reveals their flawed conception of the
breadth of the constitutional right to counsel. Amici
hypothesizewithout mentioning the broader Fifth Amend-
ment protectionsthat a suspect's constitutional right to
counsel is violated when, for instance, police question a
suspect charged with statutory rape about a possible forcible
rape offense, or a suspect charged with grand larceny about a
possible robbery offense. Defense amici, at 28. But amici do
not and cannot assert that failure to apply the Sixth
Amendment to these hypothetical situations will deprive a
suspect of the guidance of counsel, because a suspect faced
with custodial interrogation may cut off questioningand
obtain counsel's aidas to any subject simply by invoking his
right to counsel under Edwards. See, e.g., Petitioner's Brief,
at 23-24. Neither Cobb nor his amici have ever addressed
that overarching protection in protesting that criminal
defendants will not be adequately protected without an
expansive interpretation of "criminal proceeding."

The Sixth Amendment does not constitutionalize the
attorney-client relationship, but ensures only that an accused
may rely on counsel's advice in defending against a particular
criminal charge. This is a narrower but far more balanced and
manageable scope than amici propose. And, contrary to
Cobb's and amici's fears, see Respondent's Brief, at 28;
Defense amici, at 29, its application is simple, depending
only upon the substance of the charge that formally begins a
"criminal proceeding." U.S. CONST. amend. VI.
15

III. COBB IS NOT ENTITLEl) TO THE l~ROTEC-
TION OF MICHIGAN v. JACKSON.

A. Jackson Should Be Overruled.

Amici do not address Texas's argument that Jackson should
be overruled. Petitioner's Brief, at 33-40. In his brief.
however, Cobb wrongly asserts that Texas is, in effect,
asking the Court to fundamentally alter its last quarter
century of Sixth Amendment jurisprudence. Respondent's
Brief, at 40-
46. Cobb has overstated Texas's position.
Jackson is simply not woven into this Court's Sixth
Amendment case law. Rather, it is an unwarranted extension
of the Edwards rule outside the confines of custodial
interrogation into a context where the rule makes no sense.
Petitioner's Brief, at 34-35. In the fourteen years since it
was decided, the Court has not revisited or expanded
Jackson, but has, in fact, only limited its application. See
Harvey, 494 U.S., at 350-54.

Since Jackson was decided, the Court has abandoned the
already tenuous premises supporting the decision.
Petitioner's Brief, at 36-38. Patterson v. Illinois clarifies that
the state's decision to begin criminal proceedings does not
perceptibly increase an accused's need for counsel during
questioning. 487 U.S. 285, 298-99 (1988). Davis holds that
an Edwards assertionthe Fifth Amendment equivalent to,
and source of, a Jackson assertionmust be an unambiguous
request for counsel's aid during custodial interrogation. Davis
v. United States, 512 U.S. 452, 459 (1994). Neither the
content nor the context of an accused's request for counsel
at an arraignment or similar proceeding approaches the
Davis standard of clarity. See McNeil, 501 U.S., at 178.
Finally, McNeil completes the Court's abandonment of
Jackson's premises by holding that a defendant's Sixth
Amendment request for counsel is not, as a matter of fact or
policy, an invocation of his Fifth Amendment right to
counsel. 501 U.S., at 177-81.





16 17

There is no longer any basis in the Court's cases for
interpreting an accused's request for counsel at arraignment
as the clear expression of a desire for counsel during
questioning. The logical and practical underpinnings of
Jackson have therefore evaporated.

Overruling Jackson will not only leave the rest of the
Court's Sixth Amendment precedents unaffected but will also
have no real effect on an accused's ability to cope with
custodial interrogation. See Miranda v. Arizona, 384 U.S.
436, 467 (1966). An uncounseled accused who wishes to cut
off questioning on any subject need only say four words, "I
want my lawyer." and the Fifth Amendment will shield him
from further police-initiated interrogation. See Arizona v.
Roberson, 486 U.S. 675, 680-81 (1988); Edwards, 451 U.S.,
at 484. Neither Cobb nor his amici have ever explained why
these broader Fifth Amendment safeguards do not
accomplish what Jackson promises. Because the Fifth
Amendment and Edwards adequately shield an accused from
unwanted interrogation, "there simply is no room or need
for an awkward adaptation of a further constitutional
limitation such as the counsel clause of the sixth
amendment." Uviller, supra, at 1154.

Jackson should be overruled.

B. Cobb Never Asserted His Right to Counsel.

Cobb and amici argue that Cobb invoked his right to
counsel under Michigan v. Jackson by accepting appointed
counsel on the burglary charge. See Defense amici, at 7-8.
But mere acceptance of appointed counsel without more is
insufficient to trigger Jackson's heightened protection. See
Petitioner's Brief, at 43-44. Jackson is triggered only by a
defendant's affirmative, clear, and unambiguous request for


counsel, id., at 43,9 and simply accepting appointcd councl
does not rise to that level of clarity.

No decision of this Court supports Cobb's argumenl.
Amici's claim that footnote 3 in Patterson, 487 U.S., at 2tX)
n.3, shows that acceptance of appointed counsel activates
Jackson, is unsupportable. Defense amici, at 8. The accused
in Patterson had been indicted but had not requested counsel.
487 U.S., at 290-91. Because the accused "at no time sought
to exercise his right to have counsel present," the Court
found Jackson inapplicable. Id., at 291. The Court
emphasized that "[o]ur decision in Jackson . . . turned on the
fact that the accused 'hald] asked for the help of a lawyer' in
dealing with the police." Id. (quoting Jackson, 475 U.S., at
631, 633-35).
Patterson accepted the established rule that the accused
was entitled to assistance of counsel at postindictment
interviews. 487 U.S., at 290. But the Court added the
following footnote to its discussion:
"We note as a matter of some significance that
petitioner had not retained, or accepted by
appointment, a lawyer to represent him at the time he
was questioned by authorities. Once an accused has a
lawyer, a distinct set of constitutional safeguards aimed
at preserving the sanctity of the attorney-client
relationship takes effect. [citing Moulton, 474 U.S., at
176]. The State conceded as much at oral argument.
Indeed, the analysis changes

'~Cobb repeatedly assens that he did, in fact, request counsel.
See Respondent's Brief, at 23, 24, 44. But this alleged request
appears nowhere in the record, as Texas specifically pointed out in its
merits brief and its certiorari petition. See Petitioner's Brief, at 40;
Pet. for Cert., at
20. Cobb did not address this factual contention in his opposition
to Texas's petition and has therefore waived any objection to it.
SuP. ~T. R.
15(2).

"'Patterson held that Miranda warnings would support waiver of
an accused's Sixth Amendment right to counsel during
postindictrttent questioning. 487 U.S., at 296.





18

markedly once an accused even requests the assistance
of counsel. [citing Jackson, 475 U.S., at 629-30]."
Patterson, 487 U.S., at 290 n.3.

The first sentence of that footnote means only that
"retention or acceptance of a lawyer gives rise to the
substantive Sixth Amendment safeguards of Maine v. Moulton
[citation omitted]." Montoya v. Collins, 955 F.2d 279, 283
(CA5 1992). It does not address what constitutes an
invocation under Jackson.tl

Patterson did not alter Jackson's requirement that an
accused invoke his right to counsel. To the contrary,
Patterson reaffirmed Jackson's assertion rule. See Patterson,
487 U.S., at 291. Moreover, this Court has uniformly
declared, before and after Patterson, that an accused must
affirmatively request counsel to trigger Jackson, and also that
a represented accused may unilaterally waive his right to
counsel and speak to police. See Petitioner's Brief, at 43
(collecting cases); see also Harvey, 494 U.S., at 352.
Additionally, McNeil did not "infer" an invocation of Jackson
from the fact that a defendant had counsel at an initial
appearance. Defense amici, at 8 (citing McNeil, 501 U.S., at
173). The defendant in McNeil contended as much, but the
Court did not decide the issue because it was unnecessary to
resolve the case. See McNeil, 501 U.S., at 175-76.

Finally, amici misrepresent the record when they errone-
ously contend that the police misled Ridley about their


"Accord State v. Carter. 664 So.2d 367, 377, 380 (La. 1995).
Contra Dew v. United States. 558 A.2d 1112, 1116 (D.C. 1989);
Holtoway v. State, 780 S.W.2d 787, 795-96 (Tex. Crim. App. 1989).
2 does not, as Cobb implies, conclude that simply having
defense counsel invokes Jackson. Respondent's Brief, at 8. In Harvey,
the state conceded a violation of Jackson. 494 U.S., at 349. The Court
therefore did not address the invocation issue, nor does it appear from
the facts of Harvey how the defendant invoked his right to counsel. Id.,
at
346.
19

suspicions of Cobb. Defense amici, at 9; see also id., at 27
n.7. This assertion is completely unsupported by the record.
Ridley himself declined to testify that the police had misled
him. Pet., at B-13. When Ridley was told that Cobb had
confessed to the murders, Ridley did not complain that their
attorney-client relationship had been "violated." Instead,
Ridley candidly told the police that he didn't even know if he
would be appointed to represent Cobb for the murders. Pet.,
at B-b.

Ridley himself repeatedly limited his representation of
Cobb to the charged burglary alone. Pet., at B-2 to B-3, 8-10
to B-il, B-12. While stating that he permitted police to
question Cobb about the disappearances "believing he wasn't a
suspect," Pet., at 8-6, Ridley also confirmed that the police
"always said they thought [Cobb] knew more than he was
saying." Pet., at B-7; see Pet., at B-3. Furthermore, even if
Ridley was confused about the police's suspicions, the
confusion ended a full two months before Cobb confessed.
According to Ridley, in September 1995. Walker County
Sheriff Meyers told him that "he thought Cobb was a suspect
all along. [Meyers] flat out told me he thought Cobb was
guilty; he just couldn't prove it." Pet., at B-7; see Pet., at D-5
17.

Amici's objection that the police's behavior "deprived"
Cobb of his right to Ridley's guidance in dealing with the
murder investigation, Defense amici, at 9, is also contradicted
by the record. Ridley himself described the "guidance" he
offered in an interview with Cobb and his father: "I gave
[Cobb] my business card and told them if they were contacted
by anyone, to get in touch with me." R.3.472; see Pet., at D-
6 19. But when Cobb was later questioned about the murders,
he declined Ridley's advice and "never invoked his right to
counsel at any time." See Pet., at D-3 8.

That undisputed factthat Cobb never invoked his right to
counsel during custodial interrogationis the beginning and





20

end of this case. Even if Cobb had a Sixth Amendment right to counsel at the time he was questioned, he simply declined to use it. Nor did he elect to end
the iltterrogarion by asking to see his attorney, even though Ridley h~d explicitly advised him to do so. Instead, Cobb did wltat has never been disputed in
this case. He voluntarily contessed w two cruel murders, for which he was properly convicted.

CONCLUSION

The Court should reverse the deckion of the Texas Court of Criminal Appeals.

Respectfully submitted,


JOHN CORNYN

Attorney General of Texas
ANDY TAYLOR
First Assistant Attorney General
GREGORY S. COLEMAN*

Solicitor General
S. KYLE DUNCAN

Assistant Solicitor General
P.O. Box 12548
Austin, Texas 78711-2548
(512) 936-1700
Counsel for Texas
*Counsel of Record

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