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 –

JERMAINE DUNBAR,

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

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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. DUNBAR 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

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C. Even Broader Miranda Protection is Provided Under the New York State Constitution ............................................................ 26

D. Before Mr. Dunbar 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 ........................................................................................................ 47

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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, 44

Duckworth v. Eagan, 492 U.S. 195 (1989) ............................................... 4, 22, 23, 24, 31, 38

Fare v. Michael C., 442 U.S. 707 (1979) ........................................................ 3, 18, 21, 30, 36

Florida v. Powell, 559 U.S. 50 (2010) ........................................... 4, 21, 22, 23, 24, 31, 38, 44

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) .......................................................... 3, 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

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People v. Paulman, 5 N.Y.3d 122 (2005) ............................... 4, 13, 26, 27, 32, 33, 37, 38, 43

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) ................................................................................. 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

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THE PEOPLE OF THE STATE OF NEW YORK,

Appellant,

- against -

JERMAINE DUNBAR,

Defendant-Respondent.

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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 May 10, 2010, after a jury trial, convicting Jermaine Dunbar of attempted robbery

in the second degree [P.L. §§ 110.00; 160.10(2)(b)] and criminal mischief in the fourth

degree [P.L. § 145.00(1)], and imposing an indeterminate prison sentence of 17 years

to life (McGann, J., at hearing; Camacho, J., at trial and sentence).

On June 25, 2013, this Court granted Mr. Dunbar poor person relief and

assigned Lynn W. L. Fahey as counsel on this appeal. Mr. Dunbar is presently

incarcerated. No stay has been sought.

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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. Dunbar 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?

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

1 Citations preceded by “A” refer to the pages of the appendix.

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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.

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).

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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).

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

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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

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-

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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. Jermaine Dunbar was one of those thousands. Collin Lloyd-Douglas

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. Dunbar

a set script before reading him his Miranda rights.

The script informed Mr. Dunbar 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 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. Dunbar 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 robbery and fourth-degree criminal

mischief.

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On appeal, the Appellate Division joined this case with those of Collin Lloyd-

Douglas 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. Dunbar by two members of the District Attorney’s Office.

Nearly 24 hours after Mr. Dunbar’s arrest, Sergeant Mary Picone took him from the

“pens” or “cells” located in Central Booking, where he was awaiting arraignment, and

brought him to an interrogation room (Assistant District Attorney Tina Grillo: A.

151-52, 159).

The recording of the interrogation began with the interrogators introducing

themselves and informing Mr. Dunbar of the charges against him (DVD, 12:04).

While A.D.A. Grillo was reading the charges from a piece of paper that appeared to

be the criminal complaint, Mr. Dunbar interjected, saying “so” and “possession,” but

then stopped speaking after an inaudible comment from Sgt. Picone (DVD, 12:04).

Sgt. Picone next informed Mr. Dunbar that, “in a few minutes,” she would read

him his Miranda rights, and that “after that” he would “be given the opportunity to

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explain what [he] did and what happened at that date, time, and place” (DVD, 12:04).

Sgt. Picone then instructed him as follows:

If you have an alibi, give me as much information as you can, including the names of any people you were with. If your version of what happened is different from what we’ve been told, this is your opportunity to tell us your story. If there is something you need us to investigate about this case you have to tell us now so we can look into it. Even if you have already spoken to someone else you do not have to talk to us. This will be your only opportunity to speak with us before you go to court on these charges (DVD 12:04, emphasis added).2

Sgt. Picone then explained that the interview was being recorded and read Mr.

Dunbar his Miranda rights, which he waived (DVD, 12:04-05).

Mr. Dunbar said that he met a man named Pete, who told him “about robbing

this place” (DVD, 12:05-08). Mr. Dunbar’s job was “to scare” the cashier by showing

her a fake gun Pete provided (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” (DVD, 12:08-09). Mr. Dunbar responded by

2 Sgt. Picone, who participated in the interrogations in the companion cases as well, explained at Mr. Lloyd-Douglas’s Huntley hearing 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” (Lloyd-Douglas: A. 53, 64-66). The script in Mr. Dunbar’s case was virtually identical to the one used in the companion cases, except that Mr. Lloyd-Douglas was told that this was his opportunity to talk before his “arraignment on these charges” instead of “before you go to court on these charges” (Lloyd-Douglas DVD, 12:11).

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asking how the interrogators could help him: “so, hold on, there’s no way you can

help me?” (DVD, 12:09). A.D.A. Grillo replied sharply, “are you going to answer

questions,” followed by, “do you want to tell your story?” (DVD, 12:09). Mr. Dunbar

asked again how they could help him and said he did not want to “just provide

information” (DVD, 12:09-10). Sgt. Picone and A.D.A. Grillo replied that it would be

“beneficial” to him to speak if he had an alibi, if there was something they should

investigate, if it “wasn’t him” or he “wasn’t there” (DVD, 12:10-11).

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?” (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 (DVD, 12:11). Mr. Dunbar then asked them to investigate things “outside of

this,” but they said they could not (DVD, 12:11). The interrogation concluded at

12:13 p.m., after about 10 minutes (DVD, 12:13).3

3 In the companion cases, Mr. Lloyd-Douglas and Mr. Polhill also made statements that the People introduced at their respective trials.

The interrogators asked Mr. Lloyd-Douglas, who was charged with attempted murder, what happened, but throughout the interrogation challenged the veracity of his justification account (See Lloyd-Douglas Defendant-Respondent Brief). When Mr. Lloyd-Douglas suggested that the interrogators look at pictures of his house so they could understand where he was and what had happened, A.D.A. Ryan Clark dismissed him, saying, “We do have pictures, but we’ll get to that later” (Lloyd-Douglas DVD, 12:17). As Mr. Lloyd-Douglas described how the complainant had injured herself as she tried to hit him with a hammer, A.D.A. Clark told him that his explanation did not “make any sense” (Lloyd-Douglas DVD, 12:27), later saying:

This is what I see. I see you blaming everybody except [you] for your involvement. You didn’t do anything wrong. . . . You never went and

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Defense counsel moved to suppress Mr. Dunbar’s pre-arraignment statement

because the district attorneys had “failed to adequately advise” him of his rights (A.

174). Counsel argued that the pre-Miranda script misled Mr. Dunbar to believe “that

this would be his only opportunity to tell his story and that he had no choice but to

do so now” and that, during the interrogation, A.D.A. Grillo had given Mr. Dunbar

legal advice about “what he should and should not say and his possible defenses to

these charges at trial” (A. 173-74). Counsel also argued that the court should consider

the district attorney’s conduct in purposefully delaying Mr. Dunbar’s arraignment to

obtain an uncounseled statement (A. 174).

The suppression court denied Mr. Dunbar’s motion, but acknowledged that the

pre-Miranda script was deceptive in that “the statement made by Sergeant Picone” that

talked to the police. . . . You’re saying it somehow happened by accident and you didn’t do it. . . . It doesn’t. Make. Any. Sense (Lloyd-Douglas DVD, 12:30-31).

A.D.A. Clark concluded that Mr. Lloyd-Douglas was “not being completely honest” and that “anyone” would think he was telling “a story” (Lloyd-Douglas DVD, 12:31-32). 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).

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“if there is anything the defendant wished the Office of the District Attorney to

investigate, he had to tell them at that time” was “not true” (A. 196). It nevertheless

found that the deception was not “so egregious as to deprive the defendant of due

process” and that Mr. Dunbar’s “arraignment was not delayed for the sole purpose of

extracting a confession” (A. 196).

The Trial

At trial, the People played the tape of Mr. Dunbar’s interrogation in full (A.

389-92).

Anunciacion Betancourt, a cashier at Rapid Multi-Services, testified that, on

April 23, 2009, a black man she had never seen before, who was dressed in a hat and a

striped shirt, entered the store and attempted to rob her using what appeared to be a

gun (A. 338-49). Ms. Betancourt, who was sitting in an enclosed booth, dropped to

the floor and called 911 (A. 340, 346, 355). The robber eventually fled and the police

arrived two minutes later, telling Ms. Betancourt, “we have him already” (A. 348-50).

Having heard a radio run description of a black livery cab with New Jersey

plates, involved in an armed robbery by a man in a striped shirt, police pulled over

such a car (Officer Daniel Lanning: A. 309-10). There were two people inside, Mr.

Dunbar and Rolfi Garcia, who appeared nervous (A. 368-69). Police found an air

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pistol, a striped shirt, and a hat in the back seat of the car (A. 320-25; Officer Peter

Linke: A. 383).

Ms. Betancourt identified Mr. Dunbar at a show-up during which he was

handcuffed, flanked by eight or nine police officers, and holding the hat and shirt (A.

358-61, 381-82). She acknowledged testifying before the grand jury that the police had

shown her the hat, shirt, and imitation pistol before she identified Mr. Dunbar (A.

350-51, 360-62). Mr. Dunbar was wearing a striped shirt during the interrogation

because an officer had given him the shirt from the car (A. 374).

The jury convicted Mr. Dunbar of attempted second-degree robbery and

fourth-degree criminal mischief (A. 443-45).

The Appeal

On appeal, Mr. Dunbar 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. Dunbar’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.

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The Appellate Division, Second Department, heard Mr. Dunbar’s appeal

together with those of Collin Lloyd-Douglas 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 Miranda warnings “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

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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. Dunbar, like Mr. Lloyd-Douglas

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. Lloyd-Douglas and Mr. Polhill, the court reversed Mr. Dunbar’s

conviction, suppressed his statement, and remanded his case for a new trial.

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ARGUMENT

POINT I

THE APPELLATE DIVISION CORRECTLY HELD THAT MR. DUNBAR 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. Dunbar 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. Dunbar, 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. Dunbar’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 was 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 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. Dunbar 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. Dunbar and thousands of other suspects were read their Miranda

28

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. Dunbar’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. Dunbar 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 you go to court on these charges (DVD 12:04; 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,” that “this is your opportunity to tell us

your story,” and that you “have to” “tell us now,” directly contradicted the warning

that Mr. Dunbar had the right to remain silent (emphasis added). (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

30

approach the People 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. Dunbar 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. Dunbar 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. Dunbar’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. Dunbar’s right to representation. The

district attorneys also took advantage of their control over when the Sixth

31

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. Dunbar 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

they would not have given had they been properly Mirandized. Dunbar, 104 A.D.3d at

32

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.

Dunbar 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

interrogation poses a serious risk to “the Sixth Amendment rights of indigent

33

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. Dunbar 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, 19-20, 22-23, 30). 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. 20, 23-24, 28-31). 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, 21-22, 25-26). 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, 19-20, 22-23, 30). 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. 39-40). 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. 22-24).

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. 28-31) 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. 20, 33) 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. 21, 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., p. 22-23).

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invocation of right to counsel); and whether interrogators have an obligation to

provide additional information once clear and effective Miranda warnings are given, 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. 28-31). 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. 27-29). 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. Dunbar ever “received a clear

and unequivocal advisement of his rights.” Dunbar, 104 A.D.3d at 210.

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never met the threshold burden of showing effective conveyance and valid waiver of

Miranda, the burden did not shift to Mr. Dunbar, and the cases cited by the People

about shifting burdens in a variety of situations (People’s Br. 29-30) are irrelevant.6

Similarly, the People’s complaint that the Appellate Division should not have

used a “reasonable” defendant analysis (People’s Br. 27-29) 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; 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. 23), the People dismiss the pre-Miranda script as

simply a “brief set of introductory remarks” (People’s Br. 18, 26-28, 38-42). They

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. 18, 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

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. 38-41).

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.

Dunbar 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. Dunbar “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. 38-39).

Although the People argue that “[o]rdinary words should be presumed to have

ordinary meaning” (People’s Br. 39 n.11), they disclaim the false sense of urgency

their script conveyed by asserting that its instruction that Mr. Dunbar “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 (People’s Br. 39 n.11). The People do not, and cannot, explain how the

“ordinary” meaning of mandatory language like “have to,” “now,” and “only

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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. Dunbar did not ask the interrogators to

investigate his claims, he was not mislead by their promise to do so (People’s Br. 38-

39). This is inaccurate. Mr. Dunbar actually requested an investigation into things

“outside of this,” obviously believing that was what he had been offered, only to be

told that they would do no such thing (DVD, 12:11).7 In any event, that Mr. Dunbar

and the defendants in the companion cases spoke at all was evidence of their reliance

on the script’s inaccurate message that doing so would be beneficial.

The People also disingenuously point to the “accuracy” of the language that

“[t]his will be your only opportunity to speak with us” “before you go to court” “on

these charges” (People’s Br. 38). 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 Attorney’s office 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 manner designed to protect their privilege against self-incrimination instead

7 In the companion cases, 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 this request, continued interrogating him, saying they would get to pictures “later.” 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).

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of forfeiting it. As the Appellate Division found, 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.” See Dunbar, 104 A.D.3d

at 217 n.1.

In addition to defending only two of the four misleading instructions in the

pre-Miranda script, the People point to Mr. Dunbar’s experience to posit that he

would have understood what would “happen after arraignment” and the opportunities

he would “subsequently be afforded” (People’s Br. 36). 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 his 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.

The People also incorrectly claim that Mr. Dunbar 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.

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Finally, the very fact that the People make the same argument as to Mr. Dunbar

and both of the defendants in the companion cases belies their assertion that each

defendant’s case was somehow “unique” (People’s Br. 24).

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. 31-34). However, these are the very

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. 32-33). 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. 33). 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. 32-33).

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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.

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. 24

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. 19,

24 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, just like Mr. Polhill in one of the companion

cases, actually tried to speak before his rights were read demonstrates the strength of

the script’s command that the defendant talk (DVD, 12:04).

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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 34). 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

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).

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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

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. Dunbar’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. 5-6). 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.

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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. 25). 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”).

None of the cases cited by the People about offhand remarks are affected by

the Appellate Division’s decision (People’s Brief 31-32) (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. 24-25), the

Appellate Division’s analysis is grounded firmly in the federal and state constitutions.

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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.

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