The People, Appellant,v.Collin F. Lloyd-Douglas, Respondent.BriefN.Y.September 18, 2014 To be argued by ALLEGRA GLASHAUSSER AND LEILA HULL (25 minutes) Court of Appeals STATE OF NEW YORK PEOPLE OF THE STATE OF NEW YORK, Appellant, - against – COLLIN LLOYD-DOUGLAS, Defendant-Respondent. BRIEF FOR DEFENDANT-RESPONDENT LYNN W. L. FAHEY ALLEGRA GLASHAUSSER LEILA HULL Attorneys for Defendant-Respondent 2 Rector Street, 10th Floor New York, N.Y. 10006 (212) 693-0085 January 17, 2014 i INDEX TABLE OF AUTHORITIES .................................................................................. iii PRELIMINARY STATEMENT .............................................................................. 1 QUESTIONS PRESENTED ................................................................................... 2 SUMMARY OF ARGUMENT ................................................................................ 2 STATEMENT OF FACTS ....................................................................................... 6 Introduction ...................................................................................................... 6 The Suppression Motion ................................................................................. 7 The Trial .......................................................................................................... 11 The Appeal...................................................................................................... 12 ARGUMENT ............................................................................................................ 16 POINT I THE APPELLATE DIVISION CORRECTLY HELD THAT MR. LLOYD-DOUGLAS WAS NEVER EFFECTIVELY INFORMED OF HIS MIRANDA RIGHTS, THAT THE PRE- MIRANDA SCRIPT SYSTEMATICALLY UNDERMINED HIS PRIVILEGE AGAINST SELF-INCRIMINATION AND RIGHT TO COUNSEL, AND THAT HIS STATEMENT THEREFORE HAD TO BE SUPPRESSED .......................................... 16 A. Miranda v. Arizona Protects the Fundamental Constitutional Privilege Against Self-Incrimination ................................................ 17 B. The Language and Procedure of Miranda Must Effectively Convey a Defendant’s Rights ............................................................ 21 ii C. Even Broader Miranda Protection is Provided Under the New York State Constitution ............................................................ 26 D. Before Mr. Lloyd-Douglas Heard the Miranda Warnings, He Heard a Script that Undercut and Contradicted the Warnings, Preventing Any Effective Conveyance of his Rights ................................................................................................... 27 POINT II THE PEOPLE’S ARGUMENT THAT THIS COURT SHOULD USE THE OLD TOTALITY-OF-THE- CIRCUMSTANCES TEST IS CONTRARY TO LONGSTANDING PRECEDENT, SIDESTEPS THE THRESHOLD INQUIRY OF WHETHER THE MIRANDA WARNINGS WERE EFFECTIVELY CONVEYED, AND IGNORES THE MISLEADING LANGUAGE OF THE SCRIPT ........................................................................................................... 34 A. The Totality-of-the-Circumstances Test Does Not Apply Because the People Have Not Demonstrated Effective Conveyance of Miranda ...................................................................... 35 B. The Court Should Reject the People’s Conclusory Assertion that the Pre-Miranda Script was Not Misleading ............................ 38 C. In Urging that the Intentional Deception their Systematic Program Entails is Irrelevant, the People Rely on the Argument Rejected by the Supreme Court in Missouri v. Seibert .................................................................................................... 42 D. The People’s Approach Would Upend the Public Policy Balance Struck by Miranda ................................................................. 44 CONCLUSION ........................................................................................................ 48 iii TABLE OF AUTHORITIES CASES Berghuis v. Thompkins, 560 U.S. 370 (2010) ..................................................................... 4, 19 Brown v. Walker, 161 U.S. 591 (1896) .................................................................................. 20 California v. Prysock, 453 U.S. 355 (1981) ............................................................................ 21 Colorado v. Connelly, 479 U.S. 157 (1986) ......................................................................... 4, 18 Colorado v. Spring, 479 U.S. 564 (1987) ................................................................................ 37 Dickerson v. United States, 530 U.S. 428 (2000) ............................... 3, 18, 19, 20, 28, 35, 45 Duckworth v. Eagan, 492 U.S. 195 (1989) ............................................... 4, 22, 23, 24, 31, 38 Fare v. Michael C., 442 U.S. 707 (1979) ........................................................ 4, 18, 21, 30, 36 Florida v. Powell, 559 U.S. 50 (2010) ........................................... 4, 21, 22, 23, 24, 31, 38, 45 Miranda v. Arizona, 384 U.S. 436 (1966) ...................................................................... passim Missouri v. Seibert, 542 U.S. 600 (2004) ......................................................................... passim Moran v. Burbine, 475 U.S. 412 (1986) .......................................................... 4, 18, 19, 22, 37 People v. Anderson, 42 N.Y.2d 35 (1977) .............................................................................. 37 People v. Bethea, 67 N.Y.2d 364 (1986) ........................................................................... 26, 27 People v. Chapple, 38 N.Y.2d 112 (1975) ................................................. 4, 13, 27, 32, 33, 36 People v. Dunbar, 104 A.D.3d 198 (2d Dep’t 2013) ..................................................... passim People v. Guilford, 21 N.Y.3d 205 (2013) .......................................................................... 4, 26 People v. Keene, 148 A.D.2d 977 (4th Dep’t 1989) .............................................................. 36 People v. Lloyd-Douglas, 102 A.D.3d 986 (2d Dep’t 2013) .............................................. 7, 13 iv People v. Paulman, 5 N.Y.3d 122 (2005) ............................... 4, 13, 26, 27, 32, 33, 37, 38, 45 People v. Perez, 37 Misc.3d 272 (Queens Sup. Ct. 2012) .............................................. 33, 36 People v. Polhill, 102 A.D.3d 988 (2d Dep’t 2013) .......................................................... 7, 13 People v. Vasquez, 90 N.Y.2d 972 (1997) ............................................................................. 46 People v. White, 10 N.Y.3d 286 (2008) ........................................................................... 11, 26 People v. Williams, 62 N.Y.2d 285 (1982) ............................................................................. 37 Rhode Island v. Innis, 446 U.S. 291 (1980) ............................................................................ 22 United States v. Foley, 735 F.2d 45 (2d Cir. 1984) ............................................................... 33 United States v. Perez, 733 F.2d 1026 (2d Cir. 1984) ........................................................... 32 CONSTITUTIONAL PROVISIONS N.Y. Const. Art. I § 6 ................................................................................................... 3, 4, 17 U.S. Const. Amends. V, XIV .......................................................................................... 3, 17 COURT OF APPEALS STATE OF NEW YORK -------------------------------------------------------------------------- THE PEOPLE OF THE STATE OF NEW YORK, Appellant, - against - COLLIN LLOYD-DOUGLAS, Defendant-Respondent. -------------------------------------------------------------------------- PRELIMINARY STATEMENT By permission of the Honorable Robert S. Smith, Associate Judge of the Court of Appeals, granted May 20, 2013, the People appeal from an order of the Appellate Division, Second Department, dated January 30, 2013, reversing a judgment rendered on April 7, 2010, convicting Collin Lloyd-Douglas of attempted second-degree murder [P.L. § 125.25(1)], first-degree assault [P.L. § 120.10(1) (causing serious physical injury)], first-degree unlawful imprisonment [P.L. § 135.10], and third-degree criminal possession of a weapon [P.L. § 265.02(1) (previous criminal conviction)] and sentencing him to concurrent prison terms of 15 years, with 5 years of post-release supervision, for attempted murder and assault and 1 year for each of the other counts (O’Dwyer, JHO, at hearing; Buchter, J., at trial and sentence). 2 On June 25, 2013, this Court granted Mr. Lloyd-Douglas poor person relief and assigned Lynn W. L. Fahey as counsel on this appeal. Mr. Lloyd-Douglas is presently incarcerated. No stay has been sought. The Court has jurisdiction pursuant to C.P.L. § 450.90(1) to entertain this appeal and review whether the Appellate Division correctly held that the Central Booking pre-interrogation protocol employed by the Queens County District Attorney’s Office violated Miranda and the federal and state constitutions, and that statements made pursuant to the program should therefore be suppressed. The issue was preserved by defense counsel’s motion to suppress the statements because of the pre-Miranda script and by the court’s suppression ruling (A. 173-74).1 QUESTIONS PRESENTED 1. Did the Appellate Division correctly hold that Mr. Lloyd-Douglas was never effectively informed of his Miranda rights, that the pre-Miranda script systematically undermined his privilege against self-incrimination and right to counsel, and that his statement therefore had to be suppressed? 2. Is the People’s argument that this Court should use the old totality-of-the-circumstances test contrary to longstanding precedent, and does it sidestep the threshold inquiry of whether the Miranda warnings were effectively conveyed and ignore the misleading language of the script? 1 Citations preceded by “A” refer to the pages of the appendix. 3 SUMMARY OF ARGUMENT The United States Supreme Court’s decision in Miranda v. Arizona, 384 U.S. 436 (1966), created a bright-line per se rule: no custodial interrogation may proceed until Miranda warnings are effectively and adequately conveyed and the defendant knowingly, intelligently, and voluntarily waives his rights. The now-common Miranda warnings – the right to remain silent, that anything said can be used against the defendant, the right to an attorney, and that one will be provided if the defendant cannot afford one – must be clearly explained regardless of the defendant’s experience or knowledge. Id. at 468-96. This Miranda procedure protects the Fifth Amendment privilege against self-incrimination, which prevents an individual from being compelled to talk to interrogators and is “the essential mainstay of our adversary system.” Miranda, 384 U.S. at 442-43, 460 (citation omitted). See U.S. Const. Amends. V, XIV; N.Y. Const. Art. I § 6. If effective Miranda warnings are not administered, any statement made by the defendant must be suppressed. Since Miranda, the Supreme Court has consistently held that interrogators must follow the Miranda procedure, explicitly rejecting attempts to revive the old totality-of- the-circumstances test, under which courts evaluated statements based on an individualized assessment of voluntariness. Dickerson v. United States, 530 U.S. 428, 442-44 (2000). The Court has repeatedly affirmed that Miranda struck the correct balance between the needs of law enforcement and the rights of suspects. Moran v. 4 Burbine, 475 U.S. 412, 424, (1986); Fare v. Michael C., 442 U.S. 707, 718 (1979); Miranda, 384 U.S. at 478-80. “[M]ere recitation of the litany” of the warnings does not necessarily suffice and interrogators may not manipulate the Miranda procedure to undermine its efficacy and thereby induce defendants to speak. Missouri v. Seibert, 542 U.S. 600, 612 (2004). Deviations and omissions from the language of the warnings are constitutional only if a “reasonable defendant” would still have understood his rights and the consequences of foregoing them. See Florida v. Powell, 559 U.S. 50, 60-63 (2010); Duckworth v. Eagan, 492 U.S. 195, 203-04 (1989). The People bear a “heavy” burden to demonstrate compliance with Miranda. Berghuis v. Thompkins, 560 U.S. 370, 383 (2010); Colorado v. Connelly, 479 U.S. 157, 167 (1986); Miranda, 384 U.S. at 475. This Court has given the Miranda rights an even broader application under the New York State Constitution than under federal law. Indeed, it recognized early on that the reading of Miranda warnings to defendants only in the middle of an interrogation undermined the effectiveness of the warnings and it therefore prohibited such tactics. See People v. Guilford, 21 N.Y.3d 205, 209 (2013); People v. Chapple, 38 N.Y.2d 112 (1975); N.Y. Const. Art. I § 6. Additionally, under the state constitution, just as under federal law, “more [is] required” to justify the admission of statements than the “mere fact that warnings were uttered.” People v. Paulman, 5 N.Y.3d 122, 130 (2005). 5 In this and the companion cases, before the defendants were read their Miranda rights, they were warned that remaining silent or invoking their right to counsel would come at a cost: they would be giving up a valuable opportunity to speak with the district attorneys, have their cases investigated, or assert alibi defenses. They were first instructed to “give as much information” as they could, before hearing that they had a right to remain silent. They were told “this” was their “opportunity to tell” “[their] story” and have their cases investigated, implying that the district attorneys would help them and contradicting the later warning that anything they said would be used against them. They were told misleadingly that they would “have to” talk to the district attorneys “now” and that this was their “only opportunity” to do so, when in reality they could more safely approach the district attorneys through counsel, after having counsel assigned at arraignment only minutes later. Because the pre-Miranda script, which the district attorneys read not only to these three defendants, but to thousands of other indigent defendants, contradicted and undermined the Miranda warnings, the defendants were not given an effective explanation of their rights and the Appellate Division was correct to suppress their statements. The People now assert that this Court should return to the old totality-of-the- circumstances test, advocating for an individualized assessment of the voluntariness of each statement regardless of the effectiveness of the warnings. In making this argument, they sidestep the threshold requirement that Miranda warnings be 6 effectively conveyed, assuming that the mere fact that Miranda warnings were read rendered them effective. They ignore the misleading language of the pre-Miranda script, claiming it has no bearing on the effectiveness of the Miranda warnings. And, marshalling the concerns of the Seibert dissent, they claim that both the use of the Queens Central Booking Interrogation Program in 14,000 cases and its intentional design to elicit statements are irrelevant. Because these arguments are contrary to well- settled federal and state law, this Court should reject them and uphold the Appellate Division’s decision. STATEMENT OF FACTS Introduction In 2007, the Queens County District Attorney began a pre-arraignment interrogation program in which thousands of uncounseled defendants were questioned by district attorneys in Central Booking immediately prior to their arraignments. Collin Lloyd-Douglas was one of those thousands. Jermaine Dunbar and Eugene Polhill, the defendants in the companion cases, were two more. As in the companion cases, members of the Queens District Attorney’s office read Mr. Lloyd- Douglas a set script before reading him his Miranda rights. The script informed Mr. Lloyd-Douglas that this was his “opportunity” to speak to the district attorneys and to “tell” his “story.” He was instructed that, if he wanted the district attorneys to investigate, he “ha[d] to tell” them “now.” He was 7 advised to “give” “as much information” as he could and told that this was his “only opportunity” to do so before going to court. After these instructions, the interrogators read Mr. Lloyd-Douglas his Miranda rights. He made a statement that the lower court judge refused to suppress and that the People introduced into evidence at trial. He was convicted of attempted second-degree murder, first degree assault, and lesser charges. On appeal, the Appellate Division joined this case with those of Jermaine Dunbar and Eugene Polhill and found that the statements in each case should have been suppressed because the pre-Miranda script prevented the effective conveyance of the Miranda warnings. See People v. Dunbar, 104 A.D.3d 198, 204 (2d Dep’t 2013); People v. Lloyd-Douglas, 102 A.D.3d 986, 987 (2d Dep’t 2013); People v. Polhill, 102 A.D.3d 988, 989 (2d Dep’t 2013). The Suppression Motion Defense counsel sought to suppress the pre-arraignment videotaped interrogation of Mr. Lloyd-Douglas by two members of the District Attorney’s Office. Nearly 23 hours after Mr. Lloyd-Douglas’s arrest, Sergeant Mary Picone took him from Central Booking and brought him to the interrogation room (A. 57). The recording of the interrogation began with Sgt. Picone and Assistant District Attorney Ryan Clark introducing themselves and informing Mr. Lloyd- Douglas of the “charges” against him (DVD, 12:10-11). Sgt. Picone next informed 8 Mr. Lloyd-Douglas that, “in a few minutes,” she would read him his Miranda rights, and that “after that” he would “be given the opportunity to explain what [he] did and what happened at that date, time and place” (DVD, 12:11). Sgt. Picone then instructed him as follows: If you have an alibi, give us as much information as you can, including the names of any people who you were with. If your version of the events of that day is different from what we have heard, this is your opportunity to tell us your story. If there is something you’d like us to investigate about this incident, you have to tell us now so that we can look into it. Even if you have already spoken to someone else, you do not have to talk to me. This will be the only opportunity you do have to talk to me before your arraignment on these charges (DVD, 12:11) (emphasis added).2 Sgt. Picone then explained that the interview was being recorded and read Mr. Lloyd- Douglas his Miranda rights, which he waived. Sgt. Picone and A.D.A. Clark related what Mr. Lloyd-Douglas’s girlfriend, the complainant, had told them (DVD, 12:14-16). They asked him what happened, but throughout the interrogation challenged the veracity of his account as he gave it. Mr. Lloyd-Douglas explained that, on the morning of September 7, he and the 2 Sgt. Picone, who participated in the interrogations in the companion cases as well, explained that she had conducted 75% of the 3500 pre-arraignment interviews then-completed under the program and that the procedure in Mr. Lloyd-Douglas’s interrogation was the “exact [one she] always used” (A. 53, 64-66). The script in Mr. Lloyd-Douglas’s case was virtually identical to the one used in the companion cases, except that Mr. Dunbar and Mr. Polhill were told that this was their only opportunity to talk before “you go to court on these charges” instead of “before arraignment on these charges.” 9 complainant argued (DVD, 12:13-14, 12:18-19, 12:44-45). She became angry, grabbed a hammer from Mr. Lloyd-Douglas’s toolbox, and attacked him (DVD, 12:13-14, 12:16, 12:19, 12:35). While he held her hands to get her to drop the hammer, she “got hit with” it, but he did not know exactly how and stated that he had not realized that she had been seriously injured (DVD, 12:20, 12:32, 12:38). A.D.A. Clark told Mr. Lloyd-Douglas that what he was saying “doesn’t make any sense” (DVD, 12:27), later saying: This is what I see. I see you blaming everybody except for your involvement. You didn’t do anything wrong. . . . You never went and talked to the police. . . . You’re saying it somehow happened by accident and you didn’t do it. . . . It doesn’t. Make. Any. Sense (DVD, 12:30-31). A.D.A. Clark continued, “I want you to tell me the truth . . . That’s fine, if that’s what you’re going to tell me . . . [but] to me, and to anyone looking at this, a story is exactly what this is” (DVD, 12:31). A.D.A. Clark concluded that what Mr. Lloyd-Douglas was doing was “not being completely honest” (DVD, 12:32). Sgt. Picone pretended to hold a hammer and had Mr. Lloyd-Douglas demonstrate how he pushed away the complainant’s arms, saying “do it to me, here’s the hammer, do it to me, stop me” from hitting you (DVD, 12:37). She then concluded that she did not understand how it happened (DVD, 12:37). Mr. Lloyd-Douglas suggested that the interrogators look at pictures of his house so they could understand where the fight occurred. A.D.A. Clark dismissed him saying, “we do have pictures, but we’ll get to that later” (DVD, 12:17). They did later 10 show Mr. Lloyd-Douglas pictures of the complainant, but not the pictures of the house he had requested.3 At the close of the Huntley hearing, defense counsel argued that the statement should be suppressed, explaining that “[t]here was a conversation, prior to any Miranda rights being given” (A. 100). In a written decision, the court “note[d] that the 3 In the companion cases, Mr. Dunbar and Mr. Polhill also made statements that the People introduced at their respective trials. While Assistant District Attorney Tina Grillo was reading the charges, Mr. Dunbar interjected, saying “so” and “possession,” but then stopped speaking after an inaudible comment from Sgt. Picone (Dunbar DVD, 12:04). After being read the script and his rights, Mr. Dunbar said that he met a man named Pete, who told him “about robbing this place” (Dunbar DVD, 12:05-08). Mr. Dunbar’s job was “to scare” the cashier by showing her a fake gun Pete provided (Dunbar DVD, 12:07-08). When Mr. Dunbar said that he “wanted to work around all this” by providing information, Sgt. Picone said that was “a whole other story” and “something you’re going to discuss with your attorney” (Dunbar DVD, 12:08-09). Mr. Dunbar responded by asking how the interrogators could help him: “so, hold on, there’s no way you can help me?” (Dunbar DVD, 12:09). Toward the end of the interrogation, Mr. Dunbar asked, “after I finish talking to y’all, who am I going to talk to, the DA?” (Dunbar DVD, 12:11). Sgt. Picone told him he would be talking to his lawyer and that she and A.D.A. Grillo worked for the District Attorney (Dunbar DVD, 12:11). Mr. Dunbar then asked them to investigate things “outside of this,” but they said they could not (Dunbar DVD, 12:11). Mr. Polhill, who was charged with robbery, told the district attorney during his interrogation that he was present in the area by himself and had gotten into a fight with the “guy” who “supposedly” was “robbed” (See Polhill Defendant-Respondent Brief; Polhill DVD, 5:41-42). Mr. Polhill explained that he punched the man, but was punched as well and thrown to the ground, adding that there were surveillance “cameras around there, I’m sure” (Polhill DVD, 5:42-43, 5:52). Mr. Polhill also noted that the people present during the fight could “verify” what he was saying, but he did not know their names (Polhill DVD, 5:52). Mr. Polhill described the store, but Sgt. Picone again pressed him for names and repeatedly asked for information about his “companion” (Polhill DVD, 5:54). Mr. Polhill also asked numerous times what charges he was facing and said repeatedly that he wanted to press charges against the other man (Polhill DVD, 5:44, 5:52, 5:57-58). Sgt. Picone told him he could “talk to his lawyer” about that (Polhill DVD, 5:49). 11 preferable procedure in questioning defendants would be to first advise them of their Miranda rights, then advise them that if they wanted something investigated, they should let the authorities know about it” (A. 117). It continued: the police should administer Miranda warnings prior to questioning or conduct which may be construed as the functional equivalent of questioning, for the “question-first tactic effectively threatens to thwart Miranda’s purpose of reducing the risk that a coerced confession would be admitted” (citing People v. White, 10 N.Y.3d 286 [2008]) (A. 117-18). The court ruled, however, that because the pre-Miranda exchange was “very brief,” the statements were admissible (A. 118). The Trial At trial, the People played the tape of Mr. Lloyd-Douglas’s interrogation in full and the complainant testified that he assaulted her with a hammer (A. 375-441, 449). Police officers testified that when they found her, she was semiconscious, with wounds on her head (Officer Christopher Williams: A. 279). A doctor testified that the complainant had two surgeries to her skull and then had rehabilitative therapy (Dr. Manohar Venukrishnan: A. 305-10; Dr. Lisa Hu: A. 327-29). Mr. Lloyd-Douglas testified in his defense, saying that he and the complainant fought, but that she was the one wielding the hammer and that her injuries occurred during a struggle while he was defending himself (A. 455-89). When Mr. Lloyd- Douglas testified that he was not sure how the complainant was injured on top of her 12 head, the prosecutor used his pre-arraignment statement to impeach him, saying that she “thought on the video [he] said she hit herself with the hammer” (A. 476). Mr. Lloyd-Douglas replied that he had not said that on the video, and the prosecutor asked if he was paying attention when the video was played (A. 476). In summation, the prosecutor claimed that Mr. Lloyd-Douglas’s pre-arraignment interrogation was “completely different to what he testified in court” (Appellant’s App. Div. Br. at 16- 17). The jury convicted Mr. Lloyd-Douglas of attempted murder, assault, unlawful imprisonment, and criminal possession of a weapon (A. 575-61). The Appeal On appeal, Mr. Lloyd-Douglas argued, inter alia, that statements made pursuant to the Queens Central Booking Pre-Arraignment Interrogation program should be suppressed because the pre-Miranda script read by members of the District Attorney’s Office systematically undermined the Miranda procedure and frustrated the possibility of a knowing, intelligent, and voluntary waiver of his rights. The People responded, inter alia, that the timing of the pre-Miranda script was irrelevant, that its content was not misleading, and that Mr. Lloyd-Douglas’s waiver of Miranda was voluntary. Additionally, they argued that the Queens Central Booking interrogation program was designed to procure exculpatory information and, therefore, was good public policy. 13 The Appellate Division, Second Department, heard Mr. Lloyd-Douglas’s appeal together with those of Jermaine Dunbar and Eugene Polhill. On January 30, 2013, a unanimous panel reversed the convictions of all three men, finding that their statements should have been suppressed because none of them “received a clear and unequivocal advisement of [their] rights.” People v. Dunbar, 104 A.D.3d 198 (2d Dep’t 2013); People v. Lloyd-Douglas, 102 A.D.3d 986 (2d Dep’t 2013); People v. Polhill, 102 A.D.3d 988 (2d Dep’t 2013). The court found that the pre-Miranda script read by the district attorneys’ interrogators prior to the reading of the Miranda rights “serve[d] to confuse, or at worst, mislead, suspects as to the nature of their rights and the consequences of waiving them.” Dunbar, 104 A.D.3d at 211. Quoting extensively from federal and state case law, the court explained the “general principle that Miranda requires effective means to apprise suspects of their constitutional rights and the consequences of waiving those rights.” Id. at 209 (citing Seibert, 542 U.S. at 611-12, Paulman, 5 N.Y.3d at 130, and Chapple, 38 N.Y.2d at 115). Defendants “cannot knowingly and intelligently waive their rights if they are not effectively advised as to what those rights are.” Id. at 210. In the three cases before the court, when the Miranda warnings were combined with the pre-Miranda script, the “message conveyed” was “muddled and ambiguous.” Id. at 208. The court analyzed in detail what the pre-Miranda script would have conveyed to a reasonable individual. Its message was that “invoking [any rights] [would] bear adverse, and irrevocable consequences.” Id. at 208. It “suggest[ed] a sense of 14 immediacy and finality which impair[ed] suspects’ reflective consideration of their rights and the consequences of a waiver.” Id. It implied that the prosecutor would not investigate the defendants’ versions of the events if they declined to speak, but would do so if they spoke, “essentially suggest[ing] that anything they sa[id] [would] also be used to help them.” Id. Because the script “add[ed] information and suggestion to the Miranda warnings[,] which prevent[ed] them from effectively conveying to suspects their rights,” these cases were different from cases involving minor deviations from the precise language of Miranda. Dunbar, 104 A.D.3d at 207. The timing of the reading of the Miranda rights was also important to the court’s analysis. Individuals were “systematically interviewed just prior to arraignment,” “immediately before those individuals’ indelible right to counsel would attach.” Dunbar, 104 A.D.3d at 200. The defendants were advised of their rights only “after being told that this is their ‘opportunity,’ and then ‘only opportunity,’ to essentially, refute what the prosecutor has been told by other individuals, to correct any misperceptions or falsehoods, and to try to help themselves.” Id. at 207. Rejecting the People’s arguments, the court explained that this Court’s continuous interrogation cases were not limited to their precise facts, but instead reaffirmed the principle “clearly set forth in the Miranda decision” that rights must be effectively conveyed. Id. at 209. The court also found that the use of the pre-Miranda script raised concerns similar to those in Missouri v. Seibert, 542 U.S. 600 (2004), and questioned why the 15 script was read before Miranda if not to elicit statements the People would not otherwise have obtained. Dunbar, 104 A.D.3d at 213. The People’s purported goal of obtaining exculpatory information to help the innocent was, moreover, “inconsistent” with their argument that the script “d[id] not convey” that speaking would benefit the defendants. Id. The court also explained that exactly the same justification of obtaining exculpatory information had been rejected by the Miranda Court. Id. at 213- 14. Addressing the People’s argument that the case should be analyzed under the old totality-of-the-circumstances test, the court explained that “Miranda established a bright-line rule separate and apart from the question of voluntariness” and that the Supreme Court had concluded that the “‘traditional totality-of-the-circumstances’ test was insufficient to adequately protect an individual’s Fifth Amendment privilege in the context of custodial interrogations due to the compulsion inherent in the custodial environment.” 104 A.D.3d at 205, 212. Because Mr. Lloyd-Douglas, like Mr. Dunbar and Mr. Polhill, was never effectively apprised of his rights, the People did not meet their “heavy burden,” and the court did not need to reach arguments involving whether, under the totality of the circumstances, the statements were otherwise involuntary. Id. at 204-05. As with Mr. Dunbar and Mr. Polhill, the court reversed Mr. Lloyd-Douglas’s conviction, suppressed his statement, and remanded his case for a new trial. 16 ARGUMENT POINT I THE APPELLATE DIVISION CORRECTLY HELD THAT MR. LLOYD-DOUGLAS WAS NEVER EFFECTIVELY INFORMED OF HIS MIRANDA RIGHTS, THAT THE PRE-MIRANDA SCRIPT SYSTEMATICALLY UNDERMINED HIS PRIVILEGE AGAINST SELF-INCRIMINATION AND RIGHT TO COUNSEL, AND THAT HIS STATEMENT THEREFORE HAD TO BE SUPPRESSED. Before Mr. Lloyd-Douglas was told that he had the right to remain silent, he was told to “give [the prosecutors] as much information as you can.” Before he was told that anything he said could be used against him, he was told, “this is your opportunity to tell us your story” and that, if he wanted an investigation, he would “have to” “tell” the district attorneys “now.” Before he was told he had a right to counsel and that, if he could not afford one, one would be appointed, he was told that this was his “only opportunity” to talk to the district attorneys before going to court. In short, before he was given the constitutionally required Miranda warnings, he was given information contradicting those warnings – information that implied that it was in his best interest to speak to the district attorneys immediately, that anything he said could be used to help him, and that if he asked for a lawyer he would lose a valuable opportunity to talk to members of the District Attorney’s Office. This pre-Miranda script used with Mr. Lloyd-Douglas, the defendants in the companion cases, and thousands of other suspects in Queens County, was effectively 17 the anti-Miranda. It was a set of instructions contradictory to Miranda itself, that frustrated the effective conveyance of the Miranda rights, and violated Mr. Lloyd- Douglas’s privilege against self-incrimination and right to counsel under the federal and state constitutions. U.S. Const. Amends. V, XIV; N.Y. Const. Art. I § 6. A. Miranda v. Arizona Protects the Fundamental Constitutional Privilege Against Self-Incrimination. Forty-eight years ago, the United States Supreme Court held that an individual “must be adequately and effectively apprised of his rights” prior to any custodial interrogation to protect his constitutional Fifth Amendment privilege against self- incrimination. Miranda v. Arizona, 384 U.S. 436, 467-68 (1966); U.S. Const. Amends. V, XIV. The now-familiar Miranda rule requires that interrogators inform the defendant in “clear and unequivocal terms” of his right to remain silent. Miranda, 384 U.S. at 467-68. They must make him “aware” of the “consequences of forgoing” that right by explaining that anything he says may be used against him. Id. at 469. To assure that his ability to remain silent is “unfettered,” they must explain that he has the right to the presence of an attorney. Id. at 469-70. Finally, so that his right to an attorney is not “hollow,” they must clarify that an attorney will be provided if he cannot afford one. Id. at 472-73. These four warnings are an “absolute prerequisite to interrogation.” Id. at 471-72. If effective warnings are not provided, any statement given by the defendant is inadmissible at trial. Id. at 491-99. 18 Miranda created a bright-line rule that changed the way courts evaluated statements obtained by interrogation. Prior to the Miranda decision, courts looked at every confession individually for voluntariness, using a totality-of-the-circumstances test to determine whether the defendant’s “will was overborne.” Dickerson v. United States, 530 U.S. 428, 433-34 (2000). Miranda, however, created “concrete constitutional” guidelines, benefiting both defendants and the State by making clear exactly what was required of interrogators. Id. at 435; accord Moran v. Burbine, 475 U.S. 412, 425-26 (1986); Fare v. Michael C., 442 U.S. 707, 718 (1979) (describing Miranda’s “specificity” as its “virtue”). Now, after Miranda, any time the prosecution seeks to use statements gained from custodial interrogation, it must show that the interrogators clearly and effectively warned the defendant of his rights before questioning. Miranda, 384 U.S. at 472-73. The prosecution bears a “heavy burden” to show compliance with the Miranda procedure by “at least the preponderance of the evidence.” Missouri v. Seibert, 542 U.S. 600, at 608 n.1 (2004); Colorado v. Connelly, 479 U.S. 157, 167, 182 (1986); Miranda, 384 U.S. at 475. To meet this heavy burden, the prosecution must demonstrate two things. First, it must show that interrogators provided the defendant an “effective and express explanation” of his rights to remain silent and to assigned counsel. Miranda, 384 U.S. at 467-69, 472-73. Second, it must show that the defendant “knowingly,” “intelligently,” and “voluntarily” waived those rights, meaning that the waiver must have been made with a “full awareness of both the nature of the right being 19 abandoned and the consequences of the decision to abandon it.” Berghuis v. Thompkins, 560 U.S. 370, 382-83 (2010) (citing Moran, 475 U.S. at 421); Miranda, 384 U.S. at 469. Any personal knowledge or experience of the defendant is irrelevant at this stage. Miranda, 384 U.S. at 468-69. This is because the Miranda procedure protects the rights to remain silent and to counsel not only by notifying a defendant of his rights, Berghuis, 560 U.S. at 383, but also by informing him that the interrogators intend to honor them. Miranda, 384 U.S. at 468. Even the savviest defendant will not know whether his interrogators will allow him to remain silent or will provide an attorney until they tell him so. Therefore, the Miranda rights must be adequately conveyed to every defendant, regardless of background. Miranda, 384 U.S. at 468-69, 471-72. Only if the prosecution meets its “heavy” two-pronged Miranda burden does the burden shift to the defendant, who may argue that, under the totality of the circumstances, his statement was nevertheless involuntary. See Dickerson, 530 U.S. at 434, 444 (“exclud[ing] confessions” under due process is a separate inquiry from Miranda). In other words, the “totality” issue arises only once the prosecution has demonstrated that clear and effective Miranda warnings were provided and that the defendant’s waiver was knowing, intelligent, and voluntary. Id. If the prosecution does not meet these two conditions, the burden never shifts to the defendant, and the court has no occasion to apply the totality-of-the-circumstances test. Id. at 435; Miranda, 384 U.S. at 478-79, 491-98. 20 Since Miranda was decided, its warnings have become “embedded in routine [ ] practice” and “part of our national culture.” Dickerson, 530 U.S. at 443. The Supreme Court has declined every opportunity to return to the old totality-of-the- circumstances test of voluntariness or to allow the government to meet its burden without demonstrating compliance with the Miranda procedure. In Dickerson, the Court explicitly rejected a congressional attempt to “revive” the old totality-of-the- circumstances test, holding that Miranda is “constitutionally based” and reaffirming that it governs the admissibility of statements in federal and state courts. Dickerson, 530 U.S. at 432. And, in Seibert, the Court rebuffed law enforcement’s unilateral attempt to sidestep Miranda with a new police protocol, explaining that “[s]trategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute.” Seibert, 542 U.S. at 617. The Supreme Court has repeatedly reaffirmed the importance of Miranda because the Miranda procedure safeguards the most fundamental of values “firmly embedded” in our justice system – the privilege against self-incrimination – and preserves the prized distinction between adversarial and inquisitorial justice. Miranda, 384 U.S. at 442-43, 460 (quoting Brown v. Walker, 161 U.S. 591, 596-97 [1896]). At the core of the American judicial system is the fundamental principle that justice is not done “by obtaining a proper result by irregular or improper means.” Miranda, 384 U.S. at 447 (citation omitted). The Court explained that the accusatory system of justice 21 “demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his mouth.” Id. at 460 (citations omitted). Intertwined with the privilege against self-incrimination is the right to counsel during interrogation, which is “indispensable” to protecting the Fifth Amendment privilege. Miranda, 384 U.S. at 469-70. This is because lawyers have a “unique ability to protect” a client’s Fifth Amendment rights and, therefore, occupy a “critical position” in the criminal justice system. Fare, 442 U.S. at 719 (distinguishing a lawyer’s unique role from that of a parole officer who is “not in a position to advise the accused as to his legal rights”). Only counsel can provide the single-minded advice to a defendant that is “enmeshed in the adversary process.” Id. at 721-23. In addition to protecting the defendant’s privilege against self-incrimination, the presence of counsel can provide benefits to law enforcement by “guarantee[ing] that the accused gives a fully accurate statement” and “mitigat[ing] the dangers of untrustworthiness.” Miranda, 384 U.S. at 470. B. The Language and Procedure of Miranda Must Effectively Convey a Defendant’s Rights. Under Miranda, the consequence of an interrogator failing to convey some or all of the four warnings is suppression of any statement obtained. Despite the clarity of Miranda, however, it did not dictate the exact language interrogators must use to convey a defendant’s rights. Florida v. Powell, 559 U.S. 50, 60 (2010); accord California v. 22 Prysock, 453 U.S. 355, 360 (1981); Rhode Island v. Innis, 446 U.S. 291, 297 (1980). In the decades since Miranda was decided, the Supreme Court has grappled with cases addressing deviations from Miranda’s language and procedure and has set limitations on law enforcement’s efforts to deliberately undermine the effective conveyance of the warnings. In evaluating deviations and additions to Miranda’s language and procedure, the Supreme Court has consistently held that a statement is admissible only if it is made with “full awareness and comprehension of all the information Miranda requires.” Moran, 475 U.S. at 424; accord Powell, 559 U.S. at 60. In Florida v. Powell and Duckworth v. Eagan, the Supreme Court addressed warnings that deviated from the precise language of Miranda, holding them constitutionally acceptable if they “reasonably convey[ ] to a suspect his rights.” Duckworth v. Eagan, 492 U.S. 195, 203 (1989); accord Powell, 559 U.S. at 60. In Powell, the defendant was told he had the “right to talk to a lawyer before answering any [ ] questions” and could invoke that right “at any time during the interview,” while in Duckworth, the defendant was told that a lawyer would be appointed “if and when you go to court,” but was also told he could talk to a lawyer “before” any questions and could “stop answering at any time” and speak to his lawyer. Powell, 559 U.S. at 55; Duckworth, 492 U.S. at 204-05. The Court found that those right to counsel warnings “communicated [ ] the essential message” of Miranda because a “reasonable suspect” “would likely assume” that he had a right to an attorney throughout the interrogation. Powell, 559 U.S. at 62- 23 63; Duckworth, 492 U.S. at 204-05. Although the warnings were not the “clearest possible formulation” of Miranda’s right to counsel, in context, they “reasonably” conveyed the message. Powell, 559 U.S. at 63; accord Duckworth, 492 U.S. at 204-05. Notably, in neither case did the Court find evidence that the State purposefully attempted to undercut the defendant’s Miranda rights; on the contrary, it explained that it was “desirable police practice and in law enforcement’s own interest to state warnings with maximum clarity.” Powell, 559 U.S. at 64; see also Duckworth, 492 U.S. at 203 (the warnings are not necessarily inadequate if an officer in the field “inadvertently depart[s] from routine practice”). The Supreme Court has made clear that Miranda must be effectively conveyed in its procedure as well as its language. In Seibert, the Court dealt with a “new challenge” to Miranda, striking down as unconstitutional a protocol in which police elicited un-warned confessions from defendants, then provided Miranda warnings and elicited the confessions again, intending to use the post-Miranda confession against the defendant since the unwarned one was clearly inadmissible. Seibert, 542 U.S. at 609 (plurality opinion). The Court held that the protocol did not comply with Miranda because it was “obvious[ly]” designed “to get a confession the suspect would not make if he understood his rights.” Id. at 613. The prosecution’s heavy burden to show that the defendant’s rights were effectively and adequately conveyed was not met merely by a “talismanic” showing that Miranda was recited in full. Id. In fact, it would 24 be “absurd to think that mere recitation of [Miranda warnings] suffices” in every circumstance. Id. Like Duckworth before it and Powell afterward, the Seibert plurality analyzed departures from Miranda’s required procedure by focusing on what a “reasonable person” would have understood. It found that warnings given only after a confession were “likely to mislead” and that, rather than proper enlightenment, the “more likely reaction on a suspect’s part” would be “perplexity” and “bewilderment.” Seibert, 542 U.S. at 613-14, 617; see also Powell, 559 U.S. at 61-63; Duckworth, 492 U.S. at 204. What made Seibert different from Powell and Duckworth was its emphasis on procedure. The interrogators gave complete warnings, but they “render[ed]” them “ineffective by waiting for a particularly opportune time to give them,” using a “strategy adapted to undermine the Miranda warnings.” Seibert, 542 U.S. at 611, 616. Because this tactic “effectively threaten[ed] to thwart Miranda’s purpose of reducing the risk that a coerced confession would be admitted,” and there was no “reasonab[le] support” for the proposition that “the warnings given could have served their purpose,” the statements were inadmissible. Id. at 617. Justice Kennedy, concurring in the judgment and providing the deciding vote, wrote a separate opinion explaining that the Seibert protocol was unconstitutional because of its nefarious purpose: it was used in a “calculated way to undermine the Miranda warning” and was “designed to circumvent” Miranda and “obscure[ ] its meaning.” Seibert, 542 U.S. at 618, 622 (Kennedy, J., concurring). It was this 25 “deliberate violation” of Miranda and the “intentional misrepresentation” of its protections that made the protocol in Seibert constitutionally different from a good faith error. Id. at 620-21. Justice Kennedy explained that the warnings were “withheld to obscure both the practical and legal significance of the admonition when finally given.” Id. at 620. He described the technique used in Seibert as “distort[ing]” the meaning of Miranda, and explained that the Miranda procedure would be “frustrated” if police were allowed to “undermine its meaning and effect.” Id. at 621. There was simply “too high a risk” that the defendant would not understand his rights. Id. Writing in dissent, the four justices whose views on Miranda were rejected by the plurality and Justice Kennedy criticized consideration of the “psychological” effect of the protocol and whether the violation was “calculated,” which could “untether the analysis from the facts knowable to” the defendant. Seibert, 542 U.S. at 624, 629 (O’Connor, J., dissenting). The dissenters complained that “[t]houghts kept inside a police officer’s head cannot affect [the] experience [of the suspect],” and that someone who “experienced exactly the same interrogation as Seibert, save for a difference in the undivulged, subjective intent of the interrogating officer when he failed to give Miranda warnings would not experience the interrogation any differently.” Id. at 625. They found it “unattractive” to focus on the “police officer’s subjective intent,” even though Seibert presented an “uncommonly straightforward circumstance of an officer openly admitting that the violation was intentional.” Id. at 26 625-26. The plurality and Justice Kennedy unequivocally rejected the dissenters’ critique of their analysis. The clear import of Powell, Duckworth, and Seibert is that interrogators must effectively convey Miranda rights so that a reasonable suspect would understand them. They cannot provide less information than Miranda requires, nor can they intentionally undermine the meaning of Miranda by manipulating the manner or timing of the warnings. C. Even Broader Miranda Protection is Provided Under the New York State Constitution. This Court has not only embraced the Miranda rule, but also adopted a broader formulation of Miranda under the state constitution than it has under the federal one. People v. Bethea, 67 N.Y.2d 364, 366, 368 (1986) (warnings administered after interrogation began were unconstitutional under state law); see also People v. Guilford, 21 N.Y.3d 205, 209 (2013) (Bethea reflects that the New York state constitution requires a more “precise showing” that Miranda is adhered to than the federal constitution in the context of continuous interrogation); People v. White, 10 N.Y.3d 286, 293 (2008) (Pigott, J., dissenting) (“New York Constitution grants broader protection than the Fifth Amendment of the United States Constitution in cases involving successive interrogations where a Mirandized statement is preceded by an improper, un- Mirandized admission”); accord People v. Paulman, 5 N.Y.3d 122, 130 (2005). 27 This Court was also a pioneer in prohibiting protocols that undercut Miranda. It held in People v. Chapple, 38 N.Y.2d 112 (1975), decided 30 years before Seibert, that the police decision to Mirandize a suspect in the midst of an interrogation invalidated the suspect’s Miranda waiver. It explained that, for warnings to be effective, they “must precede [ ] questioning,” emphasizing that “later is too late.” Id. at 115. See also Paulman, 5 N.Y.3d at 130, 133 (reaffirming that continuous interrogation and question-first procedures provide “inadequate assurance” that Miranda warnings are effectively conveyed); Bethea, 67 N.Y.2d at 368-69 (endorsing Chapple as a state constitutional decision despite a contrary Supreme Court case). Under this Court’s analysis, Miranda warnings cannot safeguard individuals’ rights if they are given in a context that obscures their meaning. This Court in Paulman acknowledged Seibert’s prohibition of “impermissible end run[s]” around Miranda or “intentionally” undermining the defendant’s rights. Paulman, 5 N.Y.3d at 133 & nn.5-6. And, the Court has made clear that under the state constitution, “more [is] required” to justify the admission of statements than the “mere fact that warnings were uttered.” Paulman, 5 N.Y.3d at 130. D. Before Mr. Lloyd-Douglas Heard the Miranda Warnings, He Heard a Script that Undercut and Contradicted the Warnings, Preventing Any Effective Conveyance of his Rights. Under the Queens County District Attorney’s Central Booking Interrogation program, before Mr. Lloyd-Douglas and thousands of other suspects were read their 28 Miranda rights, they were given four different and contrary instructions. These additional instructions were designed to neutralize and effectively eviscerate the Miranda warnings. In giving them, the prosecutors intentionally misrepresented Mr. Lloyd-Douglas’s rights and, just as in Seibert, the instructions were part of a calculated program to elicit uncounseled custodial statements. As the Appellate Division correctly held, because the pre-Miranda script undermined the meaning of the Miranda warnings, those warnings were never clearly and effectively conveyed, and a reasonable defendant could not have knowingly, intelligently, and voluntarily waived them. See Dunbar, 104 A.D.3d at 207, 210, 214. Because this case was about the Miranda procedure itself, the Appellate Division correctly rejected the old totality-of-the-circumstances test. Dunbar, 104 A.D.3d at 204-05, 210-11; see Seibert, 542 U.S. at 617 n.8 (“Because we find the warnings were inadequate, there is no need to assess the actual voluntariness of the statement”); Dickerson, 530 U.S. at 442 (“traditional totality-of-the-circumstances test” is inadequate to safeguard Miranda rights). Instead, as in Powell, Duckworth, and Seibert, the Appellate Division correctly analyzed this case under Miranda and held the prosecution to its “heavy burden” to show that it followed the correct procedure. As the Appellate Division held, the deception in the language of the pre- Miranda script was substantial. Sgt. Picone told Mr. Lloyd-Douglas he would “be given an opportunity to explain what [he] did and what happened.” Then, prior to reading the Miranda rights, she said: 29 If you have an alibi, give us as much information as you can, including the names of any people who you were with. If your version of the events of that day is different from what we have heard, this is your opportunity to tell us your story. If there is something you’d like us to investigate about this incident, you have to tell us now so that we can look into it. Even if you have already spoken to someone else, you do not have to talk to me. This will be the only opportunity you do have to talk to me before your arraignment on these charges (DVD, 12:11) (emphasis added). This pre-Miranda script was carefully calibrated to undercut and neutralize each of the four Miranda warnings that followed. Unlike Duckworth and Powell, in which interrogators deviated slightly, and apparently inadvertently, from one of the four Miranda warnings, here, all four were deliberately undermined: (1) The instructions to “give us as much information as you can,” “this is your opportunity to tell us your story,” and that you “have to” “tell us now,” directly contradicted the warning that Mr. Lloyd-Douglas had the right to remain silent. (2) In explaining that speaking would facilitate an investigation, the district attorneys implied that his words would be used to help him, thus contradicting the heart of the critical warning that anything he said would be used against him. (3) The claim that the pre-arraignment interrogation was his “only opportunity” falsely suggested that requesting counsel would hurt him because, by doing so, he would forego forever the chance to speak with the district attorneys. To the contrary, only with counsel could he safely approach the People 30 without incriminating himself. (4) Finally, by suggesting there would be adverse consequences in asking for appointed counsel, the script took particular advantage of indigent defendants. Contrary to the language of the script, Mr. Lloyd-Douglas did not “have to” tell the district attorneys anything “now,” or ever. See Miranda, 384 U.S. at 442-43, 460 (the privilege against self-incrimination explicitly prohibits an individual from being compelled to talk to interrogators). What the interrogators knew, and Mr. Lloyd- Douglas and the other defendants surely did not, was that if they invoked their rights, they would be immediately appointed counsel who could facilitate the same investigation or exoneration without the risk of self-incrimination they faced as uncounseled defendants. See id., 384 U.S. at 482 (in the appropriate circumstances, counsel “would advise his client to talk freely to police in order to clear himself”); see also Fare, 442 U.S. at 721-22 (counsel is “able to protect his client’s rights by learning the extent, if any, of the client’s involvement in the crime under investigation and advising his client accordingly”). As the Appellate Division recognized, the “sense of immediacy and finality” in the script was, therefore, completely false. See Dunbar, 104 A.D.3d at 208. The interrogators also conveyed the false sense that their interests were aligned with Mr. Lloyd-Douglas’s, thereby inviting him to provide whatever information he thought was helpful to his case. Antithetical to our adversarial system, this neutralized counsel’s advocacy role and handicapped Mr. Lloyd-Douglas’s right to representation. 31 The district attorneys also took advantage of their control over when the Sixth Amendment right to counsel attached by delaying arraignment. See Dunbar, 104 A.D.3d at 200 (noting that interrogation occurred “immediately before those individuals’ indelible right to counsel would attach”). The language of the script undercut the meaning of all four Miranda warnings, rendering them incapable of communicating the “essential message” of Miranda. The script was so contradictory to the information Miranda requires that it ensured that the Miranda rights and the consequences of waiving them were not “reasonably convey[ed].” Cf. Powell, 559 U.S. at 64; Duckworth, 492 U.S. at 203. Rather than provide additional helpful information, the interrogators provided additional harmful information, which affirmatively undercut the ability of any reasonable defendant to understand his rights. The deceptive script raises the same concerns voiced by the five prevailing Supreme Court justices in Seibert. It was read not only to Mr. Lloyd-Douglas and the defendants in the companion cases, but to thousands of defendants as part of an intentional, formal, systematic program. See Seibert, 542 U.S. at 613-14, 617 (plurality), 620-21 (Kennedy, J., concurring). And, as in Seibert, it was “designed to circumvent” Miranda by purposefully neutralizing the effect of each Miranda right in an “intentional misrepresentation” and “deliberate violation” of the Miranda procedure. Seibert, 542 U.S. at 618, 620-01 (Kennedy, J., concurring). As the Appellate Division recognized, the goal of the program was to elicit information from uncounseled individuals that 32 they would not have given had they been properly Mirandized. Dunbar, 104 A.D.3d at 213. That goal was directly contrary to Miranda. The wide-spread program “drain[ed] the substance out of Miranda” and “thwart[ed]” the purpose of the warnings themselves. Seibert, 542 U.S. at 616 (plurality); see Paulman, 5 N.Y.3d at 133 (interpreting Seibert under state law as preventing “intentional[ ],” “impermissible end run[s]” around Miranda). The timing of the pre-Miranda script furthered that illicit purpose. Clever timing cannot be used to circumvent the proper Miranda procedure. As this Court first articulated under the state constitution, giving warnings “[l]ater is too late.” Chapple, 38 N.Y.2d at 115. Here, the district attorneys “wait[ed] for a particularly opportune time” to give Miranda warnings and elicit a waiver of them, Seibert, 542 U.S. at 611, after Mr. Lloyd-Douglas and others like him had already been primed to waive their rights in the misguided belief that doing so was to their benefit. The long-standing constitutional principle that timing matters to the constitutionality of a Miranda procedure applies despite the creativity the Queens District Attorney’s Office demonstrated in fashioning a new way to circumvent Miranda. That this protocol was used primarily, if not exclusively, with indigent defendants should also raise serious concerns for this Court. Courts have long recognized that conduct burdening the prearraignment right to counsel disproportionately impacts indigent defendants. See, e.g., United States v. Perez, 733 F.2d 1026, 1036 (2d Cir. 1984) (expressing particular concern that prearraignment 33 interrogation poses a serious risk to “the Sixth Amendment rights of indigent suspects”); accord United States v. Foley, 735 F.2d 45, 49 (2d Cir. 1984); People v. Perez, 37 Misc.3d 272, 281-85 (Queens Sup. Ct. 2012) (noting that the Queens program uniquely affects the indigent because they do not receive appointed counsel until after a complaint is filed). “While authorities are not required to relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of justice.” Miranda, 384 U.S. at 472. This interrogation protocol did just that: it took advantage of defendants’ indigency by implying that invoking the right to counsel would result in “adverse, and irrevocable, consequences.” Dunbar, 104 A.D.3d at 208. As the Appellate Division correctly concluded, the pre-Miranda script “serve[d] to confuse, or at worst, mislead” defendants “as to the nature of their rights and the consequences of waiving them.” Dunbar, 104 A.D.3d at 211. Because Mr. Lloyd- Douglas and the other defendants were never effectively informed of their rights, they could not knowingly, intelligently, and voluntarily waive them. Under both federal law and New York’s more protective constitution, therefore, the Queens interrogation protocol was unconstitutional, and the Appellate Division’s decision was correct. Seibert, 542 U.S. 600; Miranda, 384 U.S. 436; Paulman, 5 N.Y.3d at 130; Chapple, 38 N.Y.2d at 115. 34 POINT II THE PEOPLE’S ARGUMENT THAT THIS COURT SHOULD USE THE OLD TOTALITY-OF-THE- CIRCUMSTANCES TEST IS CONTRARY TO LONGSTANDING PRECEDENT, SIDESTEPS THE THRESHOLD INQUIRY OF WHETHER THE MIRANDA WARNINGS WERE EFFECTIVELY CONVEYED, AND IGNORES THE MISLEADING LANGUAGE OF THE SCRIPT. Throughout their brief, the People claim that the mere fact that Miranda was read after the script was administered establishes that the warnings were reasonably conveyed (People’s Br. 5, 17, 20-21, 28). In doing so, they conflate two separate and distinct issues. One is whether Miranda was effectively conveyed and, therefore, knowingly, intelligently, and voluntarily waived. The other is whether a defendant’s post-Miranda statement was involuntary under the due process totality-of-the- circumstances test despite proper Miranda procedure because, for example, there was coercion, lack of access to food or water, or other physical or psychological deprivation (People’s Br. 17, 21-22, 26-29). The People thereby overlook the very questions this Court must decide: whether the Miranda warnings were effectively conveyed and knowingly, intelligently, and voluntarily waived. By framing the issue as one of involuntariness, the People attempt to revive the old totality-of-the-circumstances test, gloss over the misleading language of their pre- Miranda script, and ignore federal and state case law related to the effective conveyance of Miranda (People’s Br. 5, 19-20, 23-24). Contrary to the People’s 35 contentions, the Appellate Division’s decision was grounded in clearly established law and correctly rejected precisely these arguments. A. The Totality-of-the-Circumstances Test Does Not Apply Because the People Have Not Demonstrated Effective Conveyance of Miranda. The People bear the “heavy” two-pronged burden of showing that the Miranda warnings were (1) effectively conveyed and (2) knowingly, intelligently, and voluntarily waived. Unable to do so, they attempt to bypass both of those critical hurdles by simply asserting that the Queens interrogators complied fully with the Miranda procedure, merely by reading the warnings, and that “there is no question” that the defendants received a “clear and unequivocal advisement of [their] rights” (People’s Br. 5, 17, 20-21, 28). This conclusion merely begs the question. The People also fault the Appellate Division for not viewing “the impact of the pre-Miranda remarks” through “the prism of clear, forceful and unequivocal Miranda warnings that follow[ed]” (People’s Br. 35-36). With this sleight of hand, the People skip over half a century of federal and state case law requiring the effective conveyance and valid waiver of Miranda and move directly to the totality-of-the- circumstances test that Miranda itself specifically rejected (People’s Br. 20-22). Miranda, 384 U.S. at 467-68; accord Dickerson, 530 U.S. at 432. After Miranda, the totality-of-the-circumstances test only applies to questions concerning the voluntariness of a properly Mirandized statement, not whether Miranda was effectively conveyed and knowingly, intelligently, and voluntarily waived in the first place. The 36 People’s claim that the bare fact that the Miranda warnings were read at some point necessarily establishes that they were effectively conveyed (People’s Br. 28-29) is incorrect. “[M]ere recitation of the litany” of Miranda rights does not suffice in all circumstances. Seibert, 542 U.S. at 611-12; Chapple, 38 N.Y.2d at 115.4 The cases on which the People rely to support their argument for applying the old totality-of-the-circumstances test (People’s Br. 18, 31-32) are not relevant to the threshold inquiry of whether the Miranda rights were effectively conveyed. Instead, they relate to whether a person spoke voluntarily following effective warnings and valid waivers, see People v. Keene, 148 A.D.2d 977, 978 (4th Dep’t 1989) (despite valid waiver, statement was involuntary because police threatened to jail defendant’s wife and take away his son); invoked his rights following effective warnings, see Fare, 442 U.S. at 709, 725-28 (post-waiver request to speak with probation officer was not an 4 The People incorrectly assert that “[e]ven the program’s harshest critics have recognized that suppression necessarily depends on an evaluation of the voluntariness of each individual suspect’s” waiver (People’s Br. 19, n.7). In People v. Perez, 37 Misc.3d 272, 291 (Queens Sup. Ct. 2012), the court actually sanctioned the Queens District Attorney for the unethical practice of misleading defendants about the nature and scope of their Miranda rights. Although it noted “constitutional” concerns, the decision was not based on a constitutional analysis. Id. at 280-81. The judge in that case is far from the only critic of the program. See, e.g., People v. Allen, 2761/08 (Opinion, Decision, & Order, May 14, 2010, Griffin, J.) (in granting suppression on other grounds, noting the coercive effect of the interrogation’s timing); People v. Floyd, 3034/08 (July 20, 2009, Demakos, J.H.O.) (script deceptively primed defendants to relinquish their rights before becoming aware of them); People v. Ware, July 20, 2009 (same) (adopted, Aug. 19, 2009, Gavrin, J.); People v. Comery, 1376/08, Aug. 4, 2009 (same) (adopted Aug. 20, 2009) (Buchter, J.); People v. Bonaparte, 37/09, Dec. 2, 2009 (same) (rev’d Gavrin, J. Dec. 16, 2009); People v. Davis, 2512/08, April 30, 2010 (same) (adopted May 26, 2010, Hollie, J.). In Ware, Comery, and Davis, the decisions were recalled only after the Queens District Attorney wrote letters requesting reevaluation (Appellant’s App. Div. Br. at 25-27). 37 invocation of right to counsel); and whether interrogators have an obligation to provide additional information once clear and effective Miranda warnings are provided, see Colorado v. Spring, 479 U.S. 564, 576 (1987) (police need not explain “all possible subjects of questioning” before interrogation); Moran, 475 U.S. at 424 (police need not tell individual his lawyer is trying to contact him).5 In none of those cases was there a dispute over whether the Miranda warnings were adequate and effective. The same incorrect assumption – that the mere recitation of the Miranda warnings establishes that they were effectively conveyed – underlies the People’s bluster about being held to the wrong burden of proof (People’s Br. 26-28). The People complain that the Appellate Division’s statement that there could be no “assurance” that defendants could clearly understand their rights under the Queens interrogation program heightened their burden (People’s Br. 25-28). But their burden was assigned by the Supreme Court in Miranda itself. Miranda, 384 U.S. at 457, 469, 472-74 (“[o]nly through such a warning is there ascertainable assurance that the accused is aware of the right”); accord Paulman, 5 N.Y.3d at 130. Because the People 5 People v. Anderson, 42 N.Y.2d 35 (1977), in which the Court suppressed, on due process grounds, a confession obtained after 19 hours of unlawful detention, isolation, sleep deprivation, prolonged and persistent questioning, did not even address Miranda. Nevertheless, this Court recognized that the failure to advise the defendant of his right to counsel raised a separate basis for suppression from the voluntariness analysis. Anderson, 42 N.Y.2d at 41. As the Appellate Division explained, People v. Williams, 62 N.Y.2d 285 (1982), in which this Court rejected an argument that a suspect of subnormal intelligence would not have understood adequate Miranda warnings, is inapposite because the issue here is whether Mr. Lloyd-Douglas ever “received a clear and unequivocal advisement of his rights.” Dunbar, 104 A.D.3d at 210. 38 never met the threshold burden of showing effective conveyance and valid waiver of Miranda, the burden did not shift to Mr. Lloyd-Douglas, and the cases cited by the People about shifting burdens in a variety of situations (People’s Br. 27-28) are irrelevant.6 Similarly, the People’s complaint that the Appellate Division should not have used a “reasonable” defendant analysis (People’s Br. 25-29) ignores the fact that both federal and state courts apply precisely that standard. See, e.g., Powell, 559 U.S. at 61-63, 63 n.7 (discussing effect of a script on a “reasonable defendant” and explaining that the individual’s reaction to the modified Miranda warning “does not bear on our decision”); Seibert, 542 U.S. at 610-13 (addressing the “likely reaction” to the interrogation procedure); Duckworth, 492 U.S. at 204 (same); Paulman, 5 N.Y.3d at 131 (looking to the reaction of a “reasonable suspect in the defendant’s position”). B. The Court Should Reject the People’s Conclusory Assertion that the Pre- Miranda Script was Not Misleading. This Court should reject the People’s brazen invitation to simply ignore the pre-Miranda script. In skipping over the two basic Miranda hurdles and complaining that the Appellate Division “erased or ignored [the warnings] as though they were never uttered at all” (People’s Br. 21), the People dismiss the pre-Miranda script as 6 The People’s argument that the Appellate Division’s decision failed to afford sufficient deference to the hearing court’s factual determinations is simply a red herring (People’s Br. 16, 28). There is no dispute about the facts in this case and the People never explain precisely what factual determinations they believe deserved deference. 39 simply a “brief set of introductory remarks” (People’s Br. 16, 26). They gloss over the language of the script, attempt to justify only parts of it, and offer merely the conclusory assertion that it was not “mislead[ing]” (People’s Br. 33-36). These arguments in no way undermine the Appellate Division’s conclusion that, “[w]hen the clear and unequivocal warnings devised in Miranda [were] combined with the information and suggestion contained in the preamble,” the result “prevented [the warnings] from effectively conveying to suspects their rights.” Dunbar, 104 A.D.3d at 207 (emphasis added). The People do not address at all the first two instructions of the script, that Mr. Lloyd-Douglas should “give us as much information as [he could]” and that this was his “opportunity to tell [his] story.” Nor do they explain why these instructions did not undercut the warnings that he had the right to remain silent and that anything he said could be used against him. Instead, the People specifically discuss only the final two instructions, that Mr. Lloyd-Douglas “ha[d] to” “tell us now” and that this was his “only opportunity” to “talk” before going to court on the charges (People’s Br. 33-35). Although the People argue that “[o]rdinary words should be presumed to have ordinary meaning,” they disclaim the false sense of urgency their script conveyed by asserting that its instruction that Mr. Lloyd-Douglas “ha[d] to” talk “now” as his “only opportunity” “does not imply to a rational person” that a decision to remain silent would deprive him of another, later opportunity to speak with the prosecutors 40 (People’s Br. 35 n.11). The People do not, and cannot, explain how the “ordinary” meaning of mandatory language like “have to,” “now,” and “only opportunity” would convey that a defendant did not “have to” talk “now,” could do so later instead, and would have additional opportunities to do so. The People argue that, because Mr. Lloyd-Douglas did not ask the district attorneys to investigate his claims, he was not mislead by their promise to do so (People’s Br. 34-35). This is inaccurate. Mr. Lloyd-Douglas asked the interrogators to look at pictures of his house so that they could understand what he was talking about, but they dismissed him saying they would get to pictures “later” and continued interrogating him.7 The People also disingenuously point to the “accura[cy]” of the language that “[t]his will be you only opportunity to speak with us” “before your arraignment” “on these charges” (People’s Br. 34). They ignore the reality that although going to court to be arraigned is a significant procedural moment to lawyers, there is no reason to expect a lay person to understand that there are distinct disadvantages to speaking with the district attorneys before arraignment and therefore without the protection of counsel. Nor can defendants be expected to understand that, once their lawyer is appointed, they could still approach the district attorney, through counsel, but in a 7 In the companion case, Mr. Dunbar explicitly requested an investigation into things “outside of this,” obviously believing that was what he had been offered, only to be told that they would not conduct one (Dunbar DVD, 12:11). Likewise, Mr. Polhill insisted that he was not at fault and that he wanted to press charges against the man who had punched and thrown him to the ground. He also informed the interrogators about a potential surveillance tape; the interrogators ignored him, saying they had “heard” he was with another man (Polhill DVD, 5:42-43). 41 manner designed to protect their privilege against self-incrimination. See Dunbar, 104 A.D.3d at 217 n.1 (it was “not reasonable to expect an individual with no legal training to appreciate the subtle distinction that there may be other opportunities to tell his or her story after arraignment”). In addition to defending only two of the four misleading instructions in the pre-Miranda script, the People point to Mr. Lloyd-Douglas’s supposed “prior experience” with the criminal justice system to posit that he would have understood what would “happen after arraignment” and the opportunities he would “subsequently be afforded” (People’s Br. 34, 37). Despite frequently mentioning Mr. Lloyd-Douglas’s “experience[ ]” as a “predicate felon” (People’s Br. 2, 5, 24 n. 9, 34, 37), however, this conviction was Mr. Lloyd-Douglas’s first felony (A. 589, 592) (at sentencing, noting that Mr. Lloyd-Douglas had “no prior serious involvement with the law”). Moreover, this argument was specifically rejected in Miranda. The level of a defendant’s experience with the criminal justice system is irrelevant to the threshold question of whether the People effectively conveyed an adequate warning, especially because even a sophisticated defendant would not know whether the interrogators intend to honor their rights until they are properly conveyed. Miranda, 384 U.S. at 468-69. As a result “[n]o amount of circumstantial evidence that the person may be aware of this right will suffice to stand in its stead.” Id. at 471-72. 42 The People also claim that Mr. Lloyd-Douglas demonstrated that “he controlled the scope and extent of the questioning” because he was “comfort[able]” during the interrogation (People’s Br. 38). This argument is inaccurate because the interrogation and its scope was initiated and defined by the interrogators themselves. In any event, the interrogators clearly controlled Mr. Lloyd-Douglas’s interrogation, repeatedly interrupting him, using a cross-examination style of questioning, and forcefully telling him that they did not believe him, demanding explanations for his conduct, and urging him to provide the “truth.”8 Finally, the very fact that the People make the same argument as to Mr. Lloyd- Douglas and both of the defendants in the companion cases belies their assertion that each defendant’s case was somehow “unique” (People’s Br. 25). C. In Urging that the Intentional Deception Their Systematic Program Entails is Irrelevant, the People Rely on the Argument Rejected by the Supreme Court in Missouri v. Seibert. The People complain that the Appellate Division looked at their interrogation program as a whole, including its purpose, intent, scope, and formality rather than merely at its effect on defendants (People’s Br. 29-32). However, these are the very 8 Similarly, in the companion case of Mr. Dunbar, the People incorrectly claim that he did not show confusion during the interrogation. On the contrary, as the Appellate Division noted, his reaction was illustrative of the script’s confusing and contradictory language because he “twice interrupted the questioning to ask how the interview was ‘helping’ him, and asked whether he would next be speaking to the ‘D.A.’” Dunbar, 104 A.D.3d at 211. 43 factors relied on by the Seibert plurality and Justice Kennedy in concurrence. The People essentially advocate for the position of the Seibert dissenters. Just as Justice O’Connor, writing in dissent, found it worrisome that the winning arguments in Seibert “untether[ed] the analysis from the facts knowable to” the defendant, Seibert, 542 U.S. at 627, the People argue that whether the interrogation protocol was “ad hoc or [ ] carefully crafted” was “irrelevant” because it was not “known to the defendant” (People’s Br. 30-31). Like the Seibert dissenters, who found it “unattractive” to focus on the “police officer’s subjective intent,” Seibert, 542 U.S. at 625-26, the People now assert that the interrogator’s “intention” is “entirely irrelevant” (People’s Br. 31). The Seibert dissent, however, is not the law. Similarly, the People complain that a comment is either “proper or not” and that the “number of times” their script was used is immaterial (People’s Br. 30-31). The Appellate Division, however, drew directly from Justice Kennedy’s Seibert concurrence to explain that the “formality of the interviews” “lend[s] greater weight and authority to the statements read in the preamble” and, therefore, use of the pre- Miranda script is different than “brief, offhand remark[s].” Dunbar, 104 A.D.3d at 211; see Seibert, 542 U.S. at 620-21 (Kennedy, J., concurring) (the “deliberate violation” of Miranda was different from a good faith error by a police officer). The Seibert concurrence, which provided the fifth vote for the decision, is controlling. Paulman, 5 N.Y.3d at 134 n.5. 44 The People are also simply wrong in asserting that the Appellate Division “recognized” Seibert, as well as Chapple and Paulman, as “inapposite” (People’s Br. 22 n.8). On the contrary, the Appellate Division relied on these cases for the “general principle that Miranda requires effective means to apprise a suspect of their constitutional rights.” Dunbar, 104 A.D.3d at 209. While the Appellate Division correctly held that whether “the preamble was the functional equivalent of interrogation” was “not essential” to the outcome of the case, id. at 212 n.2, the People’s claim that “no interrogation precede[d]” the Miranda waiver (People’s Br. 17, 22 n.8) is extremely misleading. Each part of the script was crafted to induce unrepresented defendants to disclose information that would have a direct impact on their criminal cases. That Mr. Dunbar and Mr. Polhill, the defendants in the companion cases, actually tried to speak before their rights were read demonstrates the strength of the script’s command that the defendant talk (Dunbar DVD, 12:04). D. The People’s Approach Would Upend the Public Policy Balance Struck by Miranda. Finally, the People maintain as a matter of public policy that “society would be the loser” if this Court applies the per se Miranda standard rather than the old totality- of-the-circumstances standard (People’s Br. at 32). The Supreme Court, however, has held the opposite. As the Court has explained, “experience suggests that the totality- of-the-circumstances test . . . is more difficult than Miranda for law enforcement 45 officers to conform to, and for courts to apply in a consistent manner.” Dickerson, 530 U.S. at 444. Adherence to the Miranda procedure is paramount to protecting the long- fought-for, core principle of the American criminal justice system – the privilege against self-incrimination, which distinguishes ours from inquisitorial systems. Here, the balance has already been struck and the People’s obligation to show that Miranda was effectively conveyed is simple. Miranda, 384 U.S. at 468 (“giving an adequate warning as to the availability of the privilege” is “so simple”). The People should not be allowed to hide under a veil of alleged societal good because they chose at their peril to deviate from this straightforward rule. See Powell, 559 U.S. at 64 (“desirable police practice and in law enforcement’s own interest to state warnings with maximum clarity”) (citation omitted); Miranda, 384 U.S. at 468 (“To declare that in the administration of criminal law the end justifies the means would bring terrible retribution”) (citation omitted). There is no support for the People’s assertions that the program has various policy benefits. They baldy state, without identifying any supporting evidence, that the program has resulted in “voluntary and reliable confessions” and “has thus proved invaluable” in helping the “District Attorney to get it right,” to “aggressively prosecute as many of the guilty as possible and none of the innocent,” and to ensure that appropriate charges are filed and bail is recommended (People’s Br. 3-4). The People would be better served by relying on statements obtained with the proper Miranda procedure, which advances those same goals while reducing the danger of 46 false inculpatory or inaccurate exculpatory statements. See Miranda, 384 U.S. at 470-71 (“presence of counsel at the interrogation” can “mitigate the dangers of untrustworthiness”). The People also suggest that suppressing Mr. Lloyd-Douglas’s statements, as well as those in the companion cases, will “jeopardiz[e] similar pre-arraignment interview programs” used throughout the state “in response to the ever-increasing demand for videotaped interrogations” (People’s Br. 6). This claim is pure fantasy. First, the People point to no other county that uses a pre-Miranda interrogation script. Second, the Appellate Division’s decision about the unconstitutionality of the program had nothing to do with the fact that the interrogation was videotaped. This case, in fact, demonstrates that the virtue of videotaping is that it allows reviewing courts to accurately analyze new challenges to Miranda procedure. Similarly, the People mischaracterize the scope of the Appellate Division’s decision by claiming that now “any statement uttered to a suspect” could be “characterized as changing the meaning or muddling the warning that follows” and that a “clever defense attorney” could couch “any other [verbal] conduct by law enforcement” as a “failure to properly and effectively administer Miranda” (People’s Br. 23). This fear is patently unfounded. The Dunbar decision does not implicate previously condoned introductory, casual, or off-hand remarks. See Dunbar, 104 A.d.3d at 211 (“cases involving limited, offhanded remarks by police officers do not compare to the systematic practice developed by the District Attorney’s office”). 47 None of the cases cited by the People about offhand remarks are affected by the Appellate Division’s decision (People’s Brief 30-31) (citing, inter alia, People v. Vasquez, 90 N.Y.2d 972, 973 [1997] [one line affirmance of case finding no functional equivalent to interrogation from offhand remark]). The People do not point to a single other type of verbal interaction preceding a valid Miranda wavier that would be implicated by this decision. The decision affects only the unique circumstance in Queens, in which over 14,000 suspects have been read a pre-Miranda script carefully calibrated to induce them to speak by misleading them about the true costs of waiving their rights to remain silent and to counsel. * * * Far from being the “sea-change” the People claim (People’s Br. 22), the Appellate Division’s analysis is grounded firmly in the federal and state constitutions. A sea-change is what the People seek. One would come about only if this Court overturned the Appellate Division’s decision, thus allowing other counties to adopt an anti-Miranda script and undercut the core logic of Miranda’s holding: that a person cannot waive a right about which he was not fairly and effectively advised. This Court should therefore reject the People’s arguments and affirm the Appellate Division’s decision. 48 CONCLUSION FOR THE FOREGOING REASONS, THE APPELLATE DIVISION’S DECISION SHOULD BE AFFIRMED. Respectfully submitted, LYNN W. L. FAHEY Attorney for Defendant-Respondent Appellate Advocates 2 Rector Street, 10th Floor New York, New York 10006 (212) 693-0085 _______________________________ By: Allegra Glashausser & Leila Hull Of Counsel Dated: January 17, 2014 New York, New York
