Monica Conyers arriving at court for sentencing

Former Detroit councilwoman Monica Conyers, the wife of U.S. Representative John Conyers, was sentenced today in federal court on her guilty plea to charges of bribery. The 45-year-old was given 37 months in prison, the top end of the agreed-upon Guidelines range.

Having read the sentencing minutes, we can’t help but think she might have done better if she’d kept her mouth shut. There are some things one does not say during one’s sentencing. She seems not to have gotten the memo, and it may be that others out there don’t know either. So here are some tips:

First, do not imply that the judge is acting improperly, before the judge has even sentenced you. Don’t even hint that the judge is taking things into account that he should not be. For example, it is not a good idea to say “the newspapers have put pressure on you to try to make an example out of me.” Judges do not like to be told they’re committing an impropriety. You do not want to piss off the person who is about to decide your fate.

Seriously, people need to be told this?

Second, do not say it’s unfair that you’re going to jail, when the other people committing crimes with you got less time. If you’ve pled to taking bribes (Conyers admitted taking multiple payments in return for awarding a contract), it doesn’t matter what happened to anybody else. The only consideration is what you did, and what you deserve. So saying “all of the people who were bribing and giving the money, they got zero months, eleven months, and now they want me to go to jail for five years?” — that’s not really going to help you out. All you’re doing is calling the judge unfair to his face. And it’s irrelevant at best.

That leads right to point 3: If you’ve just got done saying you should get the same time as your fellow conspirators, it’s not a good idea to then insist that you’re innocent and your plea was involuntary. Arguing in the alternative, at least in criminal cases, only means both alternatives are wrong. Pick a story and stick with it.

Point 3-A is that you don’t react to sentencing by demanding your plea back. A plea that was negotiated, where you testified under oath that you committed specific conduct, and where there was no actual duress… sorry, you’re not getting it back. Merely being pressured to take a plea doesn’t count. Even being under a colossal amount of pressure isn’t enough. Everyone is under pressure when they take a plea. You weighed the odds, and decided to cut your losses. You don’t get a do-over unless someone else totally overrode your free will, you sincerely did not want to take the plea, under any circumstances, but someone forced you to do it anyway. And you’d better have some real, solid proof of it.

And point 3-B is that you never, never, never, NEVER plead guilty if you are in fact innocent. Do you hear me? NEVER!

Given all the evidence in Conyers’ case, it seems unlikely that she pled guilty despite being actually innocent, and the judge definitely didn’t think so. He’d just finished a trial against one of her fellow conspirators where there was a lot of evidence tending to confirm her guilt here. So her feeble claims of involuntariness here probably only rubbed him the wrong way.

Fourth, if you want the court to go down from the Guidelines, give the judge a reason. Do not simply say “I think that given everything that exists in this case, and I’m not going to elaborate on any of them, I think the court should depart from the guideline range and I think that would be fair.”

You know what? There are a bunch of factors the judge is allowed to consider. Many of them are listed in 18 U.S.C. § 3553. Why not — we dunno — go through them and make arguments for the ones that actually apply? Just saying.

Fifth, if you want a downward departure for accepting responsibility, don’t proclaim your innocence at the last minute.

Sixth, if you want a downward departure for cooperating, you’re actually going to have to give the government something it can use. If all you’re going to tell the feds is stuff that is “conclusory and not firsthand evidence which can be used in a court proceeding,” you’re not going to get any benefit.

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Now there is plenty you can do at sentencing. You can challenge the government’s Guidelines calculations quite often. You can challenge the grounds and calculations for various enhancements. You can argue specific reasons for mitigation, downward departures, and even complete variance from the Guidelines if justice demands they not apply. There is a tremendous amount of room for good advocacy in a federal sentencing. We’ve succeeded in having the Guidelines completely disregarded, in getting judges to agree with us and not the government, so we know it happens.

You just gotta make sure the client gets the memo.

This is amazing. Sequencing an entire human genome is now going to be cheap and fast. We predict this will be a game-changing technology for the use of DNA technology.

Right now, DNA evidence is looked at much like fingerprint evidence. With fingerprints, law enforcement doesn’t compare every single ridge and whorl to see if there’s an exact match. Instead, particular locations are compared, to see if those locations are the same. And there’s a lot of subjective interpretation that is needed to make that call. DNA evidence is no different. The entire DNA sequence is not compared. Instead, a handful of locations are compared, to see if the DNA at those locations is the same. And there’s a lot of subjective interpretation that is then needed to make that judgment call. This can call DNA evidence into question, particularly when there are mixtures, degraded samples or equipment glitches that create room for errors of judgment.

If one were to compare the entire genome, however — all 3.3 billion base pairs of it — there would be much less room for interpretation and error.

The problem is that sequencing an entire genome has, to date, been prohibitively expensive. The first genome was a massive undertaking. As of 2009, only 7 people’s genomes had ever been sequenced. The time and expense needed to compare the genomes from a bit of evidence and from a single suspect would take forever and cost a huge amount of money. It’s just not practical.

But if the new technology announced in this WSJ video is for real, all that could change very soon.

If the technology is available to analyze and compare all 3.3 billion base pairs rapidly and cheaply, the current system of comparing 9 or 10 or 13 loci will be woefully inadequate. The current system relies on interpretations that can be incorrect, and statistics that can very easily be misinterpreted. A full-genome comparison knocks out most of the interpretation and guesswork, and eliminates the need for statistics.

Statistics won’t be necessary any more, because (with the exception of identical twins) no two people share the same genome. So leaving aside identical twins, the odds of someone else sharing your genome are nil.

Statistics are only used now because we only look at a few loci, not the whole genome, and all kinds of people share the same alleles at each of the various loci. Presuming the independence of the stats at each locus, the odds of a match at each locus get multiplied to reach truly astronomical odds against there being a random match. (Remember, though, that the stats don’t say anything about the odds against this being the match. And also remember that a test with even a 99.9% success rate will have false positives 0.1% of the time — and given the low odds of a correct positive match in the first place, the chances of a false positive actually occurring are amazingly high, in the realm of a coin toss.)

This can be a boon to innocents who otherwise might be wrongly charged based on bad DNA interpretations. It can also give society at large greater confidence that people convicted based on a full-genome match are rightly convicted.

Sure, we defense attorneys would lose some arguments for reasonable doubt in the wiggle room of current DNA analysis. But we’d gain arguments against those who would continue to use the present-day analysis when there is a more exact method available.

It hasn’t happened yet. But it’s coming soon. We can’t wait to see how this shakes out.

A couple of weeks ago, we taught another CLE course for the good folks at West Legal Ed Center, in our “Hope for Hopeless Cases” series. This one was on ways to defend cases where the government is going to use DNA evidence to prove your client’s guilt. (Here’s a link.)

DNA evidence can be just devastating. The science is good, after all. And to a lot of potential jurors (and judges and lawyers, unfortunately), “science” is another word for “magic.” Which is another word for “I don’t have to understand how it works, all I know is that it must be so.”

This can often be a wonderful thing, when the science is used correctly, and for the limited purposes to which it is suited. When used correctly, DNA evidence can free the innocent, and help ensure that we really are only punishing the guilty.

The problem is, DNA evidence is all too often used wrong.

And when that happens, the wrong people can get convicted.

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And now today we read a good article in the latest Washington Monthly called “DNA’s Dirty Little Secret: A forensic tool renowned for exonerating the innocent may actually be putting them in prison.” (Link here.)

It’s a good article, about the case of John Puckett, who was convicted in 2008 of an old murder from 1972. It was a brutal rape and murder, with about 20 suspects at the beginning, but the case went cold. Then in 2003 the police tested the DNA found in the evidence. It was old DNA and degraded, and it was also a mixture of multiple people’s DNA. The results were compared to California’s DNA database, and there was a possible match with Mr. Puckett. He hadn’t been a suspect in 1972, but based on this apparent match — and on nothing else — he was prosecuted and ultimately convicted. Jurors have since said that they convicted because of the statistical odds quoted to them at trial, and that if they had known the stats of false positives — which were one in three — they never would have trusted the government’s stats like that.

The article highlights the fact that DNA evidence may be based on good science, but by the time it gets to a jury it can be seriously flawed. Contrary to popular belief, DNA evidence is not objective. It involves a huge amount of subjective interpretation and judgment calls. And whenever human beings have to interpret data and make judgment calls, there is a lot of room for reasonable doubt.

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Contamination, of course, can be a huge issue. Cops screw up when they collect biological evidence, when they stick it in evidence bags, and when they ship it off to the lab. There’s all kinds of opportunities in the real world for a suspect’s DNA to get mixed up with the evidence sample. We’ve worked on at least two cases in the last six months where that is exactly what seems to have happened.

But leaving aside contamination, there are all kinds of ways that experts can look at DNA evidence results and draw the wrong conclusion.

There are technical errors in the lab, for one thing. Sometimes they analyze the wrong evidence. Sometimes the machines doing the analysis aren’t working properly. Sometimes the lab doesn’t test control samples and negative controls, to see if the machines are working right, and whether they’re giving false positives. They almost never do double-blind analysis. Often, analysts will manually adjust the data results, adding or deleting data (!) when it doesn’t look right to them.

There are analytical errors all the time, too. They’re comparing two results — the evidence itself, and the exemplar of the suspect. They never match perfectly, not ever. So errors arise when comparing the two samples. Or judgment calls must be made that give rise to reasonable disagreement (a/k/a “reasonable doubt”) — especially when the evidence is a mixture of more than one person’s DNA. Two people can make four peaks at each locus, and there are 6 different ways to interpret those four peaks. Three people in the mix jump that up to 15 different interpretations. At each locus. That’s a lot of room for judgment and doubt.

There’s another thing called the “observer effect,” which is rampant in labs serving law enforcement. The analysts are often told by the police exactly what they think the evidence will show, or why they need to prove your client did it. And the test are never double-blind, so the analyst’s pre-existing ideas will become the filter through with the evidence is interpreted. Even the plainest evidence that doesn’t match the preconceived notion, it just gets explained away. Happens all the time. It’s a normal human behavior. That’s why double-blind testing exists in the first place.

Lots of things can be mistaken for other things. Machine errors can be read as actual data, and can hide other data. And often enough the test isn’t run a second time to see what the result would have been without that particular error. Same goes for degraded DNA samples and PCR errors.

Beyond analytical concerns, of which there are far more than we’ve mentioned here, there can be significant problems with the way the statistics are handled. The underlying stats, just like the underlying science, are perfectly valid. The problems come up when the stats are used incorrectly, to imply something that they really don’t mean. The Puckett case involves the false-positive fallacy — the odds of a false positive can be very very high, even in a test that has an unbelievable success rate. There’s also the birthday paradox, whereby the odds of two people matching each other — even against astronomical odds — approaches a coin toss in large real-world populations. And don’t forget the “prosecutor’s fallacy,” named for the unfortunate tendency to refer to the statistics as the odds that the defendant isn’t the right person. A good defense attorney can often show to the jury that the numbers don’t necessarily mean what the prosecutor says they mean.

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DNA evidence, at best, can only tell you whose DNA you’re probably looking at. It cannot tell you how it got there, what happened, or who did it. And just because the DNA may even probably be your client’s, that doesn’t mean he necessarily did the crime. Just like with a fingerprint, there needs to be more, a lot more, to tie him to the commission of the actual crime. People forget this. And all the DNA witnesses can do is evaluate their data; they cannot evaluate the case itself.

So good lawyers shouldn’t let the DNA evidence become the case. It’s just a tool, like a fingerprint. Nothing more. It’s not magic, it’s not infallible. There’s plenty of room for error.

This can be room for reasonable doubt, but it can also be room for convicting the innocent. Hopefully, the more lawyers and judges learn about the downside of DNA evidence, the fewer wrongful convictions we’ll see.

But we’re not holding our breath in the meantime.

Try this on for size:

For the purposes of this chapter, the term “scheme or artifice to defraud” includes:

(1) a scheme or artifice by a government official whereby the government official’s position is used for the private gain of any person or entity; or

(2) a scheme or artifice by an officer of a corporation, partnership, nonprofit organization or labor union, whereby the officer’s position is used for the private gain of any person or entity and not for the benefit of the officer’s shareholders or members.

If Congress had half a brain, this is what 18 U.S.C. § 1346 would look like. The whole point of the section is to prevent official corruption. A politician or bureaucrat who steers a contract to a buddy, or a corporate CEO who enriches himself instead of his shareholders, or a union boss who mismanages the pension fund — basically anyone who breaches a trust to act on behalf of those he represents.

But instead, Congress wrote this nonsense:

For the purposes of this chapter, the term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services.

For one thing, anyone can commit this crime, not just people who owe a duty to a constituency. Moreover, instead of a straightforward definition, this is hopelessly vague. Nobody knows what “the intangible right of honest services” means. Does it include an employee who’s playing solitaire instead of reviewing a file? Does it include a politician making promises he can’t keep?

Nobody knows.

And that’s just how federal prosecutors like it. Actual corruption charges, like bribery and extortion, are notoriously difficult to prove. But a mail/wire fraud charge, based on deprivation of “honest services” — that could mean anything, and so anything they can prove could count. Actions that don’t fit any particular category get to be called “fraud.”

Unethical behavior is now criminal. Contractual breaches, especially in the employment arena, also seem to count.

The courts have had a hard time applying this statute, differing widely on what counts and on how to instruct juries. Earlier this term, the Justices on the Supreme Court sounded like they have real problems with the statute. They seem even to wonder whether it’s void for vagueness. Criminal laws have to be specific enough to put you on notice that certain conduct could land you in jail, and a law where nobody even knows what it means certainly could be unconstitutionally vague. The Court hasn’t decided those open cases yet, presumably because they were waiting for one more to be argued.

And that gets us to today’s Supreme Court arguments in the case of Enron’s former CEO, Jeff Skilling.

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Enron was the nation’s 7th-largest company in 2001, when it suddenly came to light that its net worth was zilch. Bright people who had no clue what they were doing had created a bizarre house of cards that came tumbling down in an instant. The city of Houston, Enron’s headquarters, was devastated for years to come. Some people had clearly done wrong — CFO Andy Fastow and friends had profited hugely from schemes that broke the rules. It was less clear, however, whether CEO Jeff Skilling had acted improperly, or whether he even knew of any shenanigans. It was hard to say that he or the directors misrepresented anything to investors, as the company’s activities were pretty well documented. (For an excellent account of what happened and didn’t happen, see Kurt Eichenwald’s definitive “Conspiracy of Fools.” Malcolm Gladwell did an excellent piece in the New Yorker, as well, called “The Talent Myth,” about the culture there, and another one called “Open Secrets,” about the paradox of too much disclosure.)

Jeff Skilling was convicted in 2006 by a federal jury in Houston. The main charge against him was that he committed wire fraud in order to deprive the shareholders of his “honest services.” He got 24 years.

Skilling’s case is now before the Supreme Court on two grounds. The first is whether he was deprived of a fair trial by not moving the case somewhere other than Houston. The second is whether “honest services fraud” is constitutional.

Skilling’s merits brief says it’s unconstitutional, because it’s so vague that even the courts can’t define it. The DOJ responded that the law is perfectly fine, that the lower court rulings follow a general three-pronged rule: “a breach of the duty of loyalty, intent to deceive, and materiality.” Artificially increasing Enron’s stock price was his way of getting “additional personal benefits at the expense of stockholders.”

Leaving aside the paradox of screwing shareholders by increasing the value of their shares, the government’s argument makes academic sense. We like it when an underlying policy can be found that explains a disparate variety of court decisions. It helps us figure out what the next court decision will probably be, and why. Maybe even help us influence that decision.

But still, there is no denying that the honest services statute has been roundly criticized from the get-go. And we mustn’t forget that Congress passed it in the first place, back in 1988, in response to the Supreme Court’s ruling in McNally v. U.S., expressly rejecting the idea that one could defraud others, not just of money, but also of this intangible “right.”

“How can the public be expected to know what the statute means when the judges and prosecutors themselves do not know, or must make it up as they go along?” asked Judge Jacobs of the Second Circuit, in his 2003 dissent in U.S. v. Rybicki.

And back in December, during oral arguments in the cases of Conrad Black and Bruce Weyhrauch, the Supreme Court justices seemed to be unanimous in their dislike of the statute. We all knew Scalia despises the law, previously writing that it “invites abuses by headline-grabbing prosecutors in pursuit of local officials, state legislators, and corporate CEOs. It seems to me quite irresponsible to let the current chaos prevail.” During the December arguments, he called it “mush,” and the other justices joined in. Breyer and Roberts went so far as to suggest from the bench that the law might be unconstitutional, it’s so vague. The justices pretty much ignored the underlying facts of the cases, and just talked about whether the law itself was any good. None of them suggested that it was.

So it’s hardly surprising that Skilling’s case got advanced on the calendar, so it could be included in the set of opinions to come down on this issue.

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At oral argument this afternoon, the justices repeated their seemingly unanimous disapproval of the statute.

Roberts started off by throwing Skilling’s lawyer a softball question: “Skilling owed the Enron shareholders honest services. He acted dishonestly in a way that harmed them. I don’t understand the difficulty.” Given Roberts’ known difficulties with the statute, this was obviously a cue for counsel to explain exactly why there is a problem here. It took the lawyer a little hemming and hawing to get around to it, but soon he was on a roll, and the justices let him go for a good long time without interruption. They didn’t challenge him once on his explanations of why the statute is overbroad, or why it is unconstitutionally vague.

When the government’s lawyer got up, however, they jumped all over him. First about the voir dire/venue issue, and then right into this one (after a snarky segue by the Chief). Kennedy got the ball rolling with “the point is that the courts shouldn’t rewrite the statute; that’s for the Congress to do.”

Scalia picked up on his own language from the December 9 oral arguments and said “Well, suppose you have a statute that makes it criminal to do any bad thing, okay? Now, it’s clear that murder would be covered. All right? Nobody would say that murder is not covered by that. Does that make the statute non-vague? Just because you can pick something that everybody would agree comes within a denial of honest services, doesn’t mean that when you say nothing but honest services, you are saying something that has sufficient content to support a criminal prosecution.”

The government replied that “honest services” has become a term of art. But Roberts stepped in, saying that’s nonsense, because a term of art is shorthand for something that has a defined meaning, and this phrase has anything but a well-defined meaning. The case law on point is “fuzzy.” If people have to wait for the definition to evolve by common-law judicial opinions, then “it kind of puts the prospective defendant in an awfully difficult position. Two cases the government wins, one it loses, and he’s supposed to keep track of that. That doesn’t sound like fair notice of what’s criminal.”

Justice Ginsberg asked what the jury was instructed in this particular case, and the government lawyer had to agree with Scalia that its definition was “a little circular.”

When given a hypothetical situation of an employee using a company computer for personal use, the government said it wouldn’t count, because there’s no fiduciary duty. This got a reaction from several of the justices. This was a new interpretation of the rule, and Scalia asked where it came from, and the government lamely replied “I think it’s inherent.” Kennedy asked “what authority do I look to, to see that some employees are fiduciaries and others are not?” The government said it would come out of agency law.

Alito wondered how there could be a situation where there’s a fraud, when the benefit is in the form of a fully-disclosed compensation. The government admitted that this is a “logical extension” of its position, and “the Court can evaluate” whether it counts here.

Then things got silly for a bit. Sotomayor said, hold on a moment, suppose “I’m a councilperson in a jurisdiction that is considering a tax increase or a tax break, and I vote for the tax break, and I happen to have property that qualifies. Is that a breach of the statute?” The government said it may well be criminal. It depends on whether the government can prove intent to screw the voters. The prosecution would have to have evidence that this was an intentional thing, before it could press charges. “That doesn’t give me a whole lot of comfort,” replied Scalia.

Scalia pointed out that you could satisfy all of the government’s prongs, and still only have a contract violation. “So I know I am liable to have the contract terminated, and maybe for damages for the contract. And you say: And also, by the way, you know, you can go to jail for a number of years, because, oh, yeah, it’s very vague, but you intended to deceive and that’s all, that’s all you need to know.”

Breyer pointed out a contradiction between the government’s position here, and its position in December: “You said intent to deceive, intent to violate the law. I believe in another case you are saying they don’t have to have an intent to violate the law because there was no State law that prohibited whatever was at issue.” This is “a big difference.” In response to the government’s reply, Breyer said that people would now need “to carry around with them an agency treatise” to figure out if they’re committing a crime or not. The problem is, people won’t know what’s unlawful.

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This has to be very heartening for Mr. Skilling. We like to call cases ahead of time here, so we’re going to go out on a limb — though probably not all that far out, really — and predict that Mr. Skilling is going to be getting a new trial.

The Supreme Court heard a very important argument this week in the case of Maryland v. Shatzer. It was one of those situations where the oral argument makes a huge difference in the outcome of the case. We read the briefs earlier this month, and remarked to colleagues that both sides’ arguments seemed eminently reasonable. So reasonable that we couldn’t form a strong opinion either way.

But the oral arguments convinced us thoroughly: Both sides are stupid.

So we wrote back on October 8, when this case was argued. This morning, the Supreme Court issued its decision.

While Shatzer was in prison on another conviction, allegations arose that he’d molested his son. A detective went to the prison to interrogate him. Shatzer invoked his Miranda right to counsel, and the detective ended the interrogation and left. Shatzer went back into general population, and the investigation was closed. Three years later, another detective began investigating again, went to the prison to interrogate Shatzer, and this time Shatzer waived his Miranda rights and incriminated himself. The Maryland Court of Appeals said his statements should have been suppressed, because there was no break in custody between his invocation of his right to counsel and his subsequent interrogation, because he’d stayed in prison the whole time.

At oral argument, Maryland proposed an idiotic rule that any break in custody, no matter how short, would end the Edwards presumption that the invoked rights were still invoked. That would just allow catch-and-release until the suspect broke down and waived his rights.

Shatzer’s position was even more idiotic — that invoking the right to counsel in one case now, counts as an invocation of the right to counsel in all future cases he may ever have, even in other jurisdictions decades later.

We suggested a simple rule:

1) If a suspect was in custody, was read his Miranda rights, and invoked his Fifth Amendment right to have a lawyer present during questioning…

2) And if there was a break in custody, so that an objectively reasonable person would have felt free to leave his questioners…

3) Then there is a rebuttable presumption that his invoked right to counsel continues to be invoked with respect to any subsequent questioning about the same underlying allegations.

4) The state can rebut this presumption with facts that demonstrate, by clear and convincing evidence, that the suspect no longer desired the presence of counsel during questioning. (This will necessarily be extremely rare, though not at all inconceivable.)

The rule could be streamlined even further, by deleting the phrase “there is a rebuttable presumption that” from #3, and deleting #4 altogether.
This rule provides all the protections that defendants, law enforcement and the courts require. At the same time, it avoids the absurdities of the existing bright-line rule, and of the more extreme bright-line rules proposed by the parties in this case

In today’s decision, the Supreme Court agreed with us that the positions taken by both sides are absurd. But they didn’t impose a new rule. Instead, they merely focused on what counts as “uninterrupted Miranda custody” for the purposes of Edwards.

First, the Court imposed a bright-line rule, in the hopes of preventing catch-and-release tactics. They said that, once a person has been released from police custody, a period of 14 days must elapse before he can be said to have waived his Miranda rights voluntarily. So if a suspect invokes his rights, ending the interrogation, and he is released from custody, he cannot be interrogated again for 14 days. Once that fortnight has passed, the Court felt that enough time had passed for the suspect to shake off the coercive effects of custody and get back to normal life.

That’s a bright-line rule, and so that’s going to create injustices on either side of the line for suspects who are more or less able to shake off the coercive effects of custody. Which can be truly traumatizing.

The Court has always liked bright-line rules for police conduct, of course, because it leaves less room for police judgment or discretion, which makes it easier for the police to know what they’re allowed to do. The thinking goes that the less gray area there is, the less likely police will be to cross the line, and the more likely individuals will not have their rights violated. That may be true so far as it goes, but only at the cost of new injustice for those whose individual circumstances would move the line. What’s reasonable for me may not be reasonable for you.

Scalia tries to avoid this interpretation by reassuring us that Edwards only creates a presumption about the voluntariness of the waiver — “a defendant is still free to claim the prophylactic protection of Miranda [by] arguing that his waiver . . . was in fact involuntary.” But that’s buried in footnote 7. We doubt that this is going to be picked up on by every suppression judge out there.

Even so, we’re still not terribly happy with the bright-line rule here. It seems highly arbitrary. Scalia, who wrote the opinion, does remind us that “the Edwards rule is not a constitutional mandate, but a judicially-prescribed prophylaxis. . . . a judicially crafted rule is justified only by reference to its prophylactic purpose. . . .” and then went on to say that some arbitrary term limit is needed to prevent the Edwards rule from being either meaninglessly brief or absurdly eternal.

And his reasoning is nothing if not arbitrary. All he says is “we think it appropriate to specify a period of time to avoid the consequence that continuation of the Edwards presumption will not reach the correct result most of the time. It seems to us that period is 14 days. That provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.”

What basis does he have for that feeling? None. They wanted a bright-line rule, instead of a reasonableness rule, and bright-line rules are by their very nature arbitrary. We guess we should appreciate that Scalia didn’t insult us by trying to force some statistics into supporting his gut feeling. At least he’s being straight with us.

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On the issue of whether Shatzer was ever released from custody in the first place, this was a novel issue for the Court. (Well, they’ve been asked to decide it a couple of times before, but they chose not to address the issue.)

Ordinarily, Miranda custody is when “there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” That’s certainly the case when the suspect is already in prison.

But Scalia steps back to look at the policy underlying the Miranda rule in the first place. The whole point of the Fifth Amendment protections here is to ensure that the government does not override the free will of the individual. No Star Chamber. The government has the power to hurt you, or to punish you, or to increase your punishment. Using that awesome power to force you to convict yourself out of your own mouth, against your own will, is anathema to American jurisprudence.

He doesn’t say it as clearly as that, but that’s what he’s getting at. He says that a sentenced prisoner has a ground state of control over his life, and once he’s returned to that ground state, released from the control of his interrogators, he’s released from custody. Makes sense. Also, the interrogator can’t make his punishment or incarceration any worse.

So the concerns we have with Miranda custody don’t exist with a person who was already in prison for something else, and is released back to his normal incarceration. “The inherently compelling pressures of custodial interrogation ended when he returned to his normal life.”

On that point, we can’t help but agree.

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We’ll just note here that yesterday, the Court decided another Miranda case, Florida v. Powell. That one’s fairly limited and commonsensical. Tampa police Miranda warnings stated that “you have the right to talk to a lawyer before answering any of our questions,” and “you have the right to use any of these rights at any time you want during this interview.” The Florida Supreme Court thought that was misleading, because it didn’t explicitly state that you have the right to have a lawyer present during questioning. But the U.S. Supreme Court said that there’s really no other interpretation of the two statements. If you can consult with a lawyer before answering any question, and if you can exercise that right at any point in the questioning, that pretty much means you have the right to have a lawyer present the whole time.

Yes, the warnings were artlessly composed, but they actually give more information than the basic one. They say you’re entitled, not just to have a lawyer there, but also to talk to him before answering any question. Hard to say that it violated anyone’s rights.