from Chapter 3

Oral Argument in the Supreme Court

Solicitor General Thurgood Marshall

Excerpts from pages 70-71

The Honorable Thurgood Marshall, there to argue for the United States, was the United States solicitor general and was undoubtedly the best known of the fifty-eight lawyers from fourteen states whose names were on the appellate briefs in the Miranda cases. The country knew him as the man who had argued and won the most important civil rights case in history - Brown v. Board of Education. He would, in time, take his own seat on the United States Supreme Court. Until then, his admirers on the high bench knew him as a consummate advocate for individual rights. This, plus the fact that Westover was a federal case involving the FBI (ostensibly a police force that took pride in its professionalism), promised a confrontation over one of the key issues of the whole proceeding: the practicality of warning a suspect and the equality of the present system.

….

Justice Black spoke up now. “As I understand you to say, of course, any person that has a lawyer or has the money to get a lawyer could get one immediately. This man has no lawyer and has no money to get one. The only reason he doesn’t have a lawyer is for that reason. Does that raise any principles as to what an indigent is entitled to? He is certainly not going to get treated like a man that has the money to get a lawyer.”

Marshall, however, disagreed with Justice Black’s premise. “He is not being denied anything,” Marshall insisted. “The state is not affirmatively denying him anything. The state is just not furnishing him anything.”

Whereupon, Justice Black, doubtless recognizing a distinction without a difference, did what he was well known for: He called on the Constitution, noting that it granted the government power to detain a man and question him. Justice Black’s point, that the power to detain and the power to question have to be balanced by the obligation of fairness to the person being detained and questioned, was not lost on Marshall. Justice Black was probing for the specific place in the Constitution where the power to detain and question is explicit. Marshall candidly admitted, “I have been unable to find one that grants it as such.” Then he provided a weak defense, saying, “It is inherent in the investigatory process. . . . I don’t think it has ever been questioned.”

“It has with me,” Justice Black countered.

Perhaps to lighten the mood for his good friend, Chief Justice Warren now stepped in to ask facetiously if Marshall meant to suggest the Court overrule Escobedo.

“No, sir,” Marshall answered promptly. “I think Escobedo can fit into this case under the Fifth Amendment. I don’t want to give support to the theory that . . . Escobedo requires a lawyer be appointed for an indigent at the police precinct or on arrest.”

This suggestion - made, it should be remembered, by the government’s chief oral advocate - that the Fifth Amendment, rather than the Sixth Amendment, applied in this case, might not have been then appreciated by the audience, for it was an audience focused on the Sixth Amendment’s right to counsel at the accusatory stage, not the yet-to-emerge right to remain silent in the police station.