JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, dissenting.
Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 227 (1976), I would grant certiorari and vacate the death sentence in this case. Even if I felt otherwise, however, I would grant certiorari in this case because the underlying conviction raises grave constitutional issues.
At stake in this case are the limits the Fifth Amendment places on official custodial interrogation of an accused who has invoked the right to assistance of counsel. See Solem v. Stumes, 465 U.S. 638 (1984); Oregon v. Bradshaw, 462 U.S. 1039 (1983); Edwards v. Arizona, 451 U.S. 477 (1981). Admitting certain incriminating evidence against petitioner James in this case, the
Arizona trial court ignored the principles of Edwards and its progency. To affirm the trial court, the Arizona Supreme Court applied Edwards and Bradshaw in a way that departs substantially from our intendment in those cases and merits plenary review. Because Arizona plans to execute James if this constitutionally infirm conviction stands, our responsibility to undertake review is clear.
On November 19, 1981, Phoenix police officers arrested James for the murder of Juan Maya. Shortly after the arrest, Officer Davis of the Phoenix force escorted James to a small, windowless room and began an interrogation. Officer Davis read James his Miranda rights and then informed him that he would be charged with first-degree murder. Tr. 5-7 (Aug. 27, 1982). About 19 minutes into the interrogation, James asked Davis what would happen with respect to the murder charge. Davis responded that if James was found guilty the result would be up to the court. James appears to have perceived this statement as an intimation that capital punishment was possible, because at this point he made his first request for an attorney. Id., at 9-10 (Sept. 3, 1982). Instead of terminating the interrogation, the officer continued to press James to make some kind of a statement; Davis told James he was "only trying to get the facts of the case and giving [James] the opportunity to tell his side of it too." Id., at 8-10. According to the subsequent testimony of Officer Davis, James' response was hesitant and uncertain. He first suggested he might be willing to proceed without an attorney but then reversed himself and requested an attorney once again. Ibid. This second request for an attorney prompted Officer Davis to pick up his papers, stand and open the door. As he opened the door he encountered Sergeant Midkiff, the officer supervising this investigation, who was standing just outside. Id., at 10-11. As soon as he saw Officer Davis, Midkiff asked "is he going to show us where the body is?" Id., at 44 (Aug. 27, 1982). Midkiff later testified that he stood close to James when asking this question. Midkiff also testified that James "might have assumed" the question was intended for him. Id., at 52-53. Officer Davis and James responded to Midkiff's inquiry simultaneously. As Davis told Midkiff that James had invoked his right to counsel, James said "I'll show you where the body is." Id., at 44-45. Midkiff immediately asked James where the body was and James
responded that it was approximately 100 miles from Phoenix. Id., at 44-47. Neither officer made any effort to remind James of his right to counsel and neither sought an express oral or written waiver of that right.
Instead of providing James with an attorney, the officers readied a police car for a trip to the site of Juan Maya's body. Sergeant Midkiff instructed all officers to refrain from questioning James while the car was being readied. Id., at 57. Midkiff also phoned a prosecutor for advice on whether, in light of James' request for an attorney, the officers should proceed with the proposed journey. The prosecutor told Midkiff to proceed. Davis then escorted James to the patrol car and requested directions to the site of the body. Id., at 55-56. James obliged and led Davis to an abandoned mine shaft about 100 miles from Phoenix. At the base of the shaft the officers found the body of Juan Maya. Id., at 53-55.
At his trial for capital murder James sought to suppress the incriminating statements but the trial court held the statements admissible. James was convicted and sentenced to death. The Arizona Supreme Court affirmed the conviction and sentence. 141 Ariz. 141, 685 P. 2d 1293 (1984). James then petitioned this Court for certiorari. While the petition was under consideration, the State of Arizona set James' execution date for October 3, 1984. The Arizona Supreme Court denied a stay of execution pending this Court's disposition of the petition for certiorari. JUSTICE REHNQUIST granted a stay of execution to permit consideration of the petition.
When an accused in custody requests the assistance of counsel the Fifth Amendment requires that all "interrogation must cease until an attorney is present." Miranda v. Arizona, 384 U.S. 436, 474 (1966). To ensure that officials scrupulously honor this right, we have established in Edwards v. Arizona, supra, and Oregon v. Bradshaw, supra, the stringent rule that an accused who has invoked his Fifth Amendment right to assistance of counsel cannot be subject to official custodial interrogation unless and until the accused (1) "initiates" further discussions relating to the investigation, and (2) makes a knowing ...