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ERIC FREIN, Petitioner, V. COMMONWEALTH OF

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ERIC FREIN, Petitioner, V. COMMONWEALTH OF _________ TERM 2019 __________________________________________ IN THE SUPREME COURT OF THE UNITED STATES ERIC FREIN, Petitioner, v. COMMONWEALTH OF PENNSYLVANIA Respondent. ____________________________________________ On Petition for a Writ of Certiorari to the Pennsylvania Supreme Court ____________________________________________ PETITION FOR A WRIT OF CERTIORARI ____________________________________________ Michael Wiseman* Wiseman & Schwartz, LLP 718 Arch Street, Suite 702 North Philadelphia, PA 19106 215-450-0903 [email protected] Counsel for Petitioner, Eric Frein Dated: September 16, 2019 *Admitted to the Bar of this Court QUESTIONS PRESENTED When the Sixth Amendment right to counsel has attached, do efforts by police and prosecutors -- the victims of one or more of the defendant’s charges -- to physically prevent counsel from intervening in his client’s interrogation, infect the entire trial? Does the presentation of evidence and testimony that has no relevance to the deceased victim’s “individuality as a human being,” per Payne v. Tennessee, but rather calls the jury to arms in a war against “the forces of darkness” constitute improper victim impact evidence? ii TABLE OF CONTENTS QUESTIONS PRESENTED ........................................................................................................... ii TABLE OF CONTENTS ............................................................................................................... iii TABLE OF AUTHORITIES ......................................................................................................... iv PETITION FOR A WRIT OF CERTIORARI ................................................................................ 1 OPINIONS BELOW ....................................................................................................................... 1 JURISDICTION ............................................................................................................................. 1 CONSTITUTIONAL PROVISIONS INVOLVED ........................................................................ 1 STATEMENT ................................................................................................................................. 2 REASONS FOR GRANTING THE PETITION ............................................................................ 5 I. The Pennsylvania Supreme Court Erroneously Applied a Harmlessness Analysis to the Structural Consequences of the States Egregious Interference with Mr. Frein’s Sixth Amendment Right to Counsel. .................................................................................................... 5 II. The Pennsylvania Supreme Court Failed to Recognize that the Victim Impact Evidence Employed by the Commonwealth so Exceeded that Permitted by this Court’s Precedent that Mr. Frein’s Penalty Phase was Rendered Fundamentally Unfair. .............................................. 8 iii TABLE OF AUTHORITIES Federal Decisions Blystone v. Pennsylvania, 494 U.S. 299 (1990) ..............................................................................0 Payne v. Tennessee, 501 U.S. 808, 827 (1991) ..................................................................... passim Satterwhite v. Texas, 486 U.S. 249, 256 (1988) ............................................................................ 6 State Decisions Commonwealth v. Colavita, 993 A.2d 874, 890 (Pa. 2010) ...........................................................5 Commonwealth v. McCoy, 975 A.2d 586, 590 (Pa. 2009) ..............................................................5 Constitutional Provisions Fifth Amendment to the United States Constitution .............................................................. passim Sixth Amendment to the United States Constitution ............................................................. passim Eighth Amendment to the United States Constitution ........................................................... passim Due Process Clause of the Fourteenth Amendment to the United States Constitution .........1, 9, 11 Rules and Statutes 18 Pa.C.S. § 2717(a) .......................................................................................................................6 28 U.S.C. 1251(a) ...........................................................................................................................1 42 Pa.C.S. § 9711(a)(2) ...................................................................................................................9 42 Pa.C.S. § 9711(c)(1) ...................................................................................................................9 42 Pa.C.S. § 9711(c)(2) .................................................................................................................. 9 U.S. Sup. Ct. R. 10(a) .....................................................................................................................5 iv PETITION FOR A WRIT OF CERTIORARI Petitioner Eric Frein respectfully petitions for a writ of certiorari to review the judgment of the Pennsylvania Supreme Court. OPINIONS BELOW The opinion of the Pennsylvania Supreme Court was filed on April 26, 2019. The opinion is attached as Appendix A. The Pennsylvania Supreme Court denied reargument on June 17, 2019. That order is attached as Appendix B. JURISDICTION The opinion and judgment of the Pennsylvania Supreme Court was filed on April 26, 2019. The order denying Petitioner’s timely petition for reargument was entered on June 17, 2019. This petition is therefore due to be filed on or before September 16, 2019. This Court has jurisdiction pursuant to 28 U.S.C. 1251(a). CONSTITUTIONAL PROVISIONS INVOLVED This case concerns the Sixth Amendment to the United States Constitution, which provides in relevant part: In all criminal prosecutions, the accused shall … have the Assistance of Counsel for his defense; and the Eighth Amendment to the United States Constitution, which provides in relevant part: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted; and Section 1 of the Fourteenth Amendment to the United States Constitution, which provides in relevant part: nor shall any State deprive any person of life, liberty, or property, without due process of law. 1 STATEMENT OF THE CASE On September 12, 2014, someone concealed in a nearby wooded area fired shots at the Pennsylvania State Police Barracks Blooming Grove Barracks. Trooper Bryon Dickson was killed, and Trooper Alex Douglass seriously injured. After an investigation involving numerous local, State and federal agencies, Eric Frein was identified as the likely suspect. On September 16, the Pike County District Attorney filed a criminal Information formally charging Mr. Frein with homicide, terrorism, and related charges. Pursuant to Pennsylvania law, Mr. Frein’s Sixth Amendment right to counsel therefore attached. Mr. Frein was arrested by the United States Marshals around 6:00 pm on October 30, 2014. He was taken to the Blooming Grove Barracks and, over two hours after his arrest, and bearing signs of wounds to his face and head, placed in an interrogation room. Soon thereafter, Troopers Benjamin Clark (“Corporal Clark”) and Michael Mulvey (“Trooper Mulvey”) entered the interrogation room and Mirandized Mr. Frein. Mr. Frein refused to sign the written waiver of his Miranda rights, stated that he would not answer any questions, but would give the location of a rifle hidden in the woods. After a short conversation about the rifle’s location, the Troopers interrogated Mr. Frein for over three hours. In the meantime, just minutes after Mr. Frein declined to waive his Fifth Amendment rights, attorney James Swetz, Esquire, called the Barracks, and advised the dispatcher that he represented Mr. Frein and was coming to the Barracks to see his client. The dispatcher advised Attorney Swetz to call another number. When he did so, the second dispatcher told Attorney Swetz that access to his client was denied. Attorney Swetz nevertheless travelled to the Barracks and requested entry to meet with his client. He was informed by Troopers guarding the Barracks that he was not permitted to enter. Parked at the side of the road outside the Barracks, about an hour and a half into Mr. Frein’s 2 interrogation, Attorney Attorney Swetz again called the Barracks to request access to his client. Shortly thereafter, two plain-clothes Troopers came out of the Barracks, approached Attorney Swetz and told him to await a call from District Attorney Ray Tonkin. Attorney Swetz eventually left the Barracks without receiving a call from the District Attorney. That call finally came at 1:13am on October 31, 2014. At no point was Attorney Swetz permitted to see or talk to his client. At no point was Mr. Frein told his lawyer was outside trying to intervene in the interrogation. Mr. Frein made repeated efforts to suppress his statement, on both Fifth and Sixth amendment grounds, but was denied. At the jury trial, the Commonwealth played in full Mr. Frein’s interrogation, again over counsel’s objection. The jury found Mr. Frein guilty of all charges on April 19, 2017. The penalty phase began the following day. The Commonwealth incorporated all the guilt- phase evidence, including the interrogation, into evidence. Additionally, the Commonwealth introduced testimony from ten different witnesses over the course of two days. The witnesses included Corporal Dickson's wife, sister, mother, and father. A number of Corporal Dickson's
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