# Butler v. McKellar

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## Dissenting Opinion

    Brennan
United States Supreme Court
494 U.S. 407
Butler v. McKellar
No. 88-6677 Argued: Oct. 30, 1989. --- Decided: March 5, 1990
See 495 U.S. 915, 110 S.Ct. 1941.
Syllabus
Six weeks after Pamela Lane was murdered, petitioner Butler was arrested on an unrelated assault charge for which he retained counsel. While in custody, Butler was informed that he was a suspect in Lane's murder. After receiving Miranda warnings, he signed waiver of rights forms and made incriminating statements about the Lane murder during interrogation. At his capital murder trial, the court denied his motion to suppress these statements, and he was convicted and sentenced to death. After his conviction became final on direct appeal, he filed a petition for federal habeas relief, which was dismissed by the District Court. The Court of Appeals affirmed, rejecting his argument that Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378, requires the police, during continuous custody, to refrain from all further questioning once an accused invokes his right to counsel on any offense. Subsequently, this Court handed down Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704, which held that the Fifth Amendment bars police-initiated interrogation following a suspect's request for counsel in the context of a separate investigation. The Court of Appeals denied Butler's request for rehearing. It reasoned that he was not entitled to the retroactive benefit of Roberson. According to the court, the Edwards-Roberson limitations on police interrogation are only tangentially related to the truth-finding function. It viewed those limitations as part of the prophylactic protection of the Fifth Amendment right to counsel created to be "guidelines" for the law enforcement profession and held that Butler's interrogation, while contrary to present "guidelines," had been conducted in strict accordance with established law at the time.
Held:
1. Roberson announced a "new rule," since its result was not dictated by a precedent existing at the time the defendant's conviction became final, and is therefore inapplicable to cases on collateral review under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334, and Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256. The fact that a majority of this Court said that Roberson's case was directly controlled by Edwards is not conclusive for purposes of deciding whether Roberson established a new rule under Teague. Courts frequently view their decisions as "controlled" or "governed" by prior opinions even when aware of reasonable contrary conclusions reached by other courts. It would not have been an illogical or even a grudging application of Edwards to decide that it did not extend to Roberson § facts, since-as evidenced by the significant difference of opinion on the part of several lower courts that had considered the question previously-Roberson § outcome was susceptible to debate among reasonable minds. Pp. 412-415.
2. Roberson § rule does not come within either of the exceptions under which a new rule is available on collateral review. The first exception-for a rule that places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe-is clearly inapplicable. The proscribed conduct in the instant case is capital murder, the prosecution of which is not prohibited by the Roberson rule, and Roberson did not address any categorical guarantees accorded by the Constitution, see Penry, supra, at 329, 109 S.Ct., at 2952. Nor did Roberson establish any principle that would come within the second exception. The scope of that exception-for a rule that requires the observance of those procedures that are implicit in the concept of ordered liberty-is limited to those new procedures without which the likelihood of an accurate conviction is seriously diminished. However, a violation of Roberson § added restrictions on police investigatory procedures may instead increase the likelihood of obtaining an accurate determination. Pp. 415-416.
846 F.2d 255 (CA4) affirmed.
REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, and in Parts I, II, and III of which BLACKMUN and STEVENS, JJ., joined, post, p. 417.
John H. Blume, Columbia, for petitioner.
Donald J. Zelenka, for respondents.
Chief Justice REHNQUIST delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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