Posts Tagged ‘miranda’

On this latest Miranda thing…

Monday, April 22nd, 2013

So after catching one of the guys thought to have committed the Boston Marathon bombing (and a string of violent acts thereafter), the government said they weren’t going to read him his rights. Not just yet. Invoking the “public safety exception” to the Miranda rule, they said they wanted a chance to find out who he was working with, where other bombs might be, etc., before telling him he’s allowed to clam up.

Predictably, a lot of people were upset about this. But why?

Yes, it was wrong of the administration to say that. But not for the reasons everyone’s saying. Not because it’s further eroding our rights (it’s not), but because it’s just stupid.

It conflates intelligence with evidence — stupid. It misses the whole point of Miranda — stupid. It defeats the purpose of intel — stupid. And pisses off those who love the Constitution — stupid.

And of course, it’s nothing new.

About three years ago, the Obama administration made it DOJ policy to permit “unwarned interrogation” not only in situations involving immediate public safety (“where’s the bomb?”), but also cases where cops believe getting intel outweighs your right to remain silent.

The 2010 memorandum states:

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.

On top of that, the Obama administration wanted Congress to specifically pass legislation allowing longer interrogations before Miranda need be invoked. (A brilliant writer blogged about that memo a couple of years ago, concluding that it was “An Unnecessary Rule.”)

The administration is just trying to have its cake and eat it, too. Miranda does not prevent them from gathering intelligence. The Fifth Amendment does not prevent them from gathering intelligence. They can interrogate people all they want, in any way they want, and the Constitution doesn’t say jack about it. But if they force you to incriminate yourself against your own will, they’re just not allowed to use those statements against you to prove your guilt in a criminal proceeding. That doesn’t mean they can’t force you to incriminate yourself, and it doesn’t mean they can’t use those statements for other purposes.

But the government wants to be able to do both. It wants to be able to override your free will, force you to condemn yourself, and use your words both to prevent future attacks (laudable) and to convict you so the State can punish you (contemptible).

Their saying this out loud is idiotic, because everyone sees how contemptible it is, and the government looks even more like an enemy of the public, rather than its protector. And of course giving a heads-up to the real bad guys about what we’ll be doing. (And announcing it in a specific case, as they did this week, just lets everyone in the bomber’s organization know that we’re learning everything that guy could tell us. Stupid. You never want the enemy to know how much you know.)

But it’s also stupid because it misses the ENTIRE POINT of Miranda.

Sorry to break this to you, but Miranda isn’t about protecting your rights. It never was.

Miranda is about giving the police a free pass. It always has been.

The Fifth Amendment is there to make sure we don’t have another Star Chamber. We don’t want the government using its power to override your free will, and make you confess to a crime so it can punish you. Lots of confessions are purely voluntary. In fact, most probably are. But sometimes the government has to force it out of you, and we don’t want that to happen.

But it’s hard for courts to tell voluntary confessions from involuntary ones. They have to look at facts and assess things on a case-by-case basis. That’s hard. And it’s hard for police to know if they’re crossing the line, when the line is different for every individual. So the Miranda rule creates an easy line that applies to everyone:

Say the magic words, and the law presumes that the confession was voluntary.

See how easy that was? Not hard. Easy.

All a cop has to do is recite the Miranda litany as they’re taking a suspect into custody, and BAM! they get to interrogate all they want, and everything the guy says can be used in evidence at his trial.

It is hard to imagine a more pro-law-enforcement rule. In one stroke, Miranda dispensed with actual voluntariness, and replaced it with “as a matter of law” pretend voluntariness.

And yet law enforcement — even our nation’s top officials, who went to law school and everything — astoundingly persist in thinking Miranda is bad for them. They think that, if you mirandize someone, they’ll shut up, and you’ll lose all that delicious intel and lovely evidence. (NYPD officers are actually trained NOT to mirandize people on arrest, for this very reason. Yeah, TV ain’t real life.)

But here’s the kicker: People don’t clam up when they’ve been read their rights. The people who clam up remain silent regardless of whether they’ve been mirandized or not. In fact, there is evidence that people are MORE likely to talk once they’ve been read their rights. They don’t know what those rights mean, but they know they’ve got them, and TV has conditioned them to expect the magic words. So when they hear them, they relax. All is well. Their rights are being acknowledged. And they start blabbing.

So not only do the magic words let you use all those statements, compelled or not, but they actually get the statements flowing.

So wanting to hold off on saying them is just stupid. Counterproductive. Idiotic.

So there’s lots of reasons to dislike what the government is saying in this case. But eroding our rights just isn’t one of them.

You lost those rights in 1966.

An Unnecessary Rule: FBI Memo on Mirandizing Terror Suspects is a Waste of Paper

Saturday, March 26th, 2011

So on Thursday the WSJ reported that the Obama administration has changed the rules of investigating terror suspects, to permit interrogation without Miranda warnings in certain circumstances:

A Federal Bureau of Investigation memorandum reviewed by The Wall Street Journal says the policy applies to “exceptional cases” where investigators “conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat.” Such action would need prior approval from FBI supervisors and Justice Department lawyers, according to the memo, which was issued in December but not made public.

We made a few notes, hoping to get a minute to blog on the issue.  It just struck us as a stupid and unnecessary thing to do, if prevention of terrorist acts is the goal.  Miranda is just a protection affecting evidence that can be used at the trial of the person being interrogated.  That has to do with evidence of past crimes; it’s irrelevant to the prevention of future acts.  And if the goal is to gather evidence for a criminal trial, then it’s just unconstitutional.  It’s stupid no matter which way you look at it.  But our current never-ending trial is demanding pretty much every waking moment, and nothing got written.

Then yesterday the NYT published the text of the October 2010 FBI memo.  The relevant paragraph provides that:

There may be exceptional cases in which, although all relevant public safety questions have been asked, agents nonetheless conclude that continued unwarned interrogation is necessary to collect valuable and timely intelligence not related to any immediate threat, and that the government’s interest in obtaining this intelligence outweighs the disadvantages of proceeding with unwarned interrogation. [4] In these instances, agents should seek SAC approval to proceed with unwarned interrogation after the public safety questioning is concluded. Whenever feasible, the SAC will consult with FBI-HQ (including OGC) and Department of Justice attorneys before granting approval. Presentment of an arrestee may not be delayed simply to continue the interrogation, unless the defendant has timely waived prompt presentment.

At the words “prompt presentment,” we (figuratively) slapped our forehead.  It all came back to us.  In May 2010, when the Obama administration first floated the idea, (more…)

Upset by this week’s Miranda decision? Get over it.

Wednesday, June 2nd, 2010

miranda

So yesterday, the Supreme Court ruled 5-4 in Berghuis v. Thompkins (opinion here) that you need to actually tell the cops that you’re invoking your right to remain silent, if you want them to stop asking questions (or at least not be able to use your subsequent responses against you).  Merely remaining silent isn’t the same as invoking the right.

This, of course, got all kinds of clever responses in the media, along the lines of “to invoke your right to remain silent, speak up!”  Very witty, we agree.

But we have to say, this decision is not that big a deal.

Our immediate reaction on reading the slip opinion, right when it came out, was “yeah, that sounds about right.”

We headed over to court for a case later that morning, and while we were sitting in chambers with some other defense lawyers and prosecutors, we summed up the Court’s decision.  The immediate reaction of literally everyone in the room was “yeah, that sounds about right.”  The judge’s law secretary added “isn’t that already how we do it here in New York?”

Later in the day, we discussed the case with some defense types who are fairly well-known for their pit-bull approach to the law.  Their immediate reaction was “yeah, that sounds about right.”

-=-=-=-=-

Here’s how we see it, in a nutshell: (more…)

Holder’s Wrong. Terrorism’s No Reason to Relax Miranda

Monday, May 10th, 2010

terrorist lineup

The Washington Post reports that the Obama administration wants Congress to change the Miranda rule, so that in terrorism cases law enforcement will be able to interrogate longer before having to give suspected terrorists their Miranda warnings.

This is stupid, and unnecessary.

The general idea is to expand the “public safety exception” to the rule. The way that exception works, cops don’t have to Mirandize someone when there’s an immediate danger, and they’re trying to get information so they can deal with it right away. The second the threat stops being imminent, the exception no longer applies.

Attorney General Eric Holder now says that this isn’t enough in terrorism cases, because it doesn’t give investigators enough leeway. Last week’s Times Square bombing suspect was questioned for three or four whole hours before being Mirandized, and last Christmas’ underwear bomber was questioned for (egads!) nearly fifty minutes before the warnings were given. And these delays, Holder says, are already “stretching the traditional limits of how long suspects may be questioned.”

The Obama administration wants to keep terrorism suspects in the civilian criminal justice system, rather than putting them in the military system or designating them as enemy combatants. The Miranda rule is a cornerstone of the civilian criminal justice system, precluding the use at trial of a defendant’s statements made in response to questioning while in custody, unless first informed of the right to remain silent and to a lawyer, and then waiving those rights before speaking. So if the administration is going to keep terrorists in the civilian system, but still wants to get useful intelligence, they’re going to need time to interrogate first before the defendant gets Mirandized and shuts up. That’s what Holder’s saying, anyway.

But that’s complete bullshit, and anyone with any actual experience in the criminal justice system knows it.

First of all, nobody — and we mean nobody — shuts up just because (more…)

New 14-Day Rule in Miranda-Edwards Cases

Wednesday, February 24th, 2010

 

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 (more…)

How the Court Should Rule in Shatzer

Thursday, October 8th, 2009

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.

-=-=-=-=-

The case involves custodial interrogation, and whether and when it can be started again after someone has asked for a lawyer.

When someone is in custody, and they ask for a lawyer, interrogation is supposed to stop. If the police keep questioning anyway, then the defendant’s answers cannot be used to prove the case against him.

So even if someone confesses to the crime at that point, the confession cannot be used to prove he did it. Even if there is no evidence of duress, and there is every reason to believe that the confession is perfectly reliable, it cannot be used.

The underlying policy is that our criminal justice system puts a greater value on not overriding someone’s free will. We don’t want people to be forced to hang themselves. Getting into someone’s mind, and making them testify against themselves, against their will, is abhorrent to us. It reeks of torture, the Inquisition and Star Chamber.

That explains why custodial interrogation gets the Miranda rights, but there is no similar concern with taking non-testimonial evidence from someone against their will. A breathalyzer, a blood test, a voice exemplar, a vial of spit — we don’t really care whether you want to provide the evidence or not. The evidence exists independently of your free will. But a confession during interrogation is solely a matter of free will.

And confessions are dramatic evidence, to be sure. Once evidence of a confession comes in at trial, it’s nigh impossible for a jury to think the defendant didn’t do it. It’s a game-ending bit of evidence, in most cases.

Police custody, in and of itself, is such an extreme and distressing situation that the law just presumes it to be coercive. If an objectively reasonable person would not have thought he was free to leave, then he’s being compelled to sit there and deal with the cops. There’s compulsion, because the cops can keep questioning you until you break, and confess. Maybe it’s a true confession, and maybe you’re just saying it to make it all stop, but either way your free will was overridden.

And so we have the Miranda rule, which says that defendants must be informed of their right to remain silent and the right to have a lawyer present during any custodial questioning. If someone’s questioned in custody without being given these warnings — even if they’re a respected jurist who already knew them — then his answers cannot be used against him. And if he is given the warnings, and exercises his right to remain silent or his right to counsel, but the police keep questioning him, then his answers cannot be used against him.

If the defendant says he won’t talk without a lawyer present, then allquestioning must cease. This is a per se exclusion, period. The police cannot re-start questioning unless the defendant himself initiates further discussion. Unlike the right to silence, which can be waived down the road after new Mirandawarnings, the right to a lawyer once asserted can never be waived again, no matter how many times the police re-Mirandize him. It can only be waived if the attorney is actually present at the time. That’s the principal rule of Edwards.

(Note that asking for a lawyer here is the same as saying you won’t talk without a lawyer present. Unlike the Sixth Amendment right to counsel, where once you’ve actually been charged with a crime you’re entitled to have a lawyer provided, this is the Fifth Amendment right to counsel. The cops don’t have to get you a lawyer, they just have to stop questioning you until you get one.)

This is a bright-line rule. Our jurisprudence likes bright-line rules here. We don’t want the cops to have to think about what they can and cannot do; we want them to know. We don’t want a balancing test of competing principles, because that means the courts would have to get involved and decide what can and cannot be done. It would have to be decided after the fact, on a case-by-case basis. Without a bright-line rule, the police would probably engage in more improper interrogations than otherwise, because who knows what some judge down the road might think was okay? And who knows whether the case would even get that far?

So bright-line rules here protect defendants’ interests, police interests, and the courts’ interests. And Edwards is nothing if not a bright-line rule.

The problem with bright-line rules is that they are absolute, they have no exceptions, and so unless they are narrowly-tailored they can have absurd results.

And that is why this week the Supreme Court heard the case of Maryland v. Shatzer.

-=-=-=-=-

Six years ago, Michael Shatzer was in state prison, serving a lengthy sentence. Meanwhile, a social worker got a report that Shatzer had (before going to prison, obviously) forced his then-three-year-old son to perform fellatio on him. The social worker told the cops, and an officer came to the prison to talk to Shatzer about it.

Shatzer was taken to an interrogation room, and was given his Miranda rights. Shatzer asked for a lawyer, and the officer ended the interrogation. The officer went away, and Shatzer was taken out of the interrogation room and returned to his regular custody. The investigation was eventually closed.

Nearly three years passed. Shatzer remained in prison.

Now his son was a few years older, and was able to give more details about what had happened to him. The police began a new investigation, which was assigned to a new police officer.

The new officer went to the prison, Shatzer was taken to the interrogation room, and the officer Mirandized him.

This time, Shatzer waived his rights, and agreed to speak with the officer. He flatly denied the allegations that he had forced his son to perform fellatio on him. But he did admit to having masturbated in front of his little boy.

A few days later, the questioning continued. Shatzer was Mirandized again, and he again waived his rights. He took a polygraph test and failed it. Then he started crying and said “I didn’t force him. I didn’t force him.”

At this point, he finally asked for a lawyer, and the questioning ended.

Shatzer was prosecuted for sexually abusing his son. He tried to suppress his statements, on the grounds that he should never have been questioned the second time, under the Edwards rule. He’d asked for a lawyer, and that per se prohibition never evaporated.

The trial court said no, the statements could come in, because the intervening three years constituted a “break in custody” that ended the Edwards prohibition on further questioning. Custody had ended, so the compulsory situation had gone away. The new questioning was a new custodial interrogation justifying a new Miranda warning that was properly waived.

After Shatzer got convicted, the Maryland Court of Appeals reversed. The appellate court held that the passage of time cannot constitute a break in custody. The court held that, if there is a break-in-custody exception to Edwards, it first of all would have to mean something different than the break-in-custody exception for the right to remain silent, and secondly it wouldn’t have existed here anyway when Shatzer had remained in prison the whole time.

The state appealed to the Supreme Court, arguing that the Edwards prohibition must evaporate over time, so that a substantial lapse of time between interrogations would allow the cops to re-Mirandize and try again. The point of Edwards is to prevent the cops from “badgering” a defendant into answering questions without a lawyer, the state said. (At the end of its brief, Maryland even suggested that the bright-line rule ought to be overturned.)

Shatzer’s brief argued that the bright-line rule had to be maintained, to ensure that defendants aren’t coerced into making confessions. If a defendant asks for a lawyer, and all he gets is another reading of his rights, he’s hardly going to expect a second request for a lawyer to be effective, and so he might as well speak. It would undermine the whole point. And if a “break in custody” is all it takes to restart the Edwards rule, then all the cops would have to do is release, rearrest and repeat until the defendant finally gave in.

-=-=-=-=-

Both merits briefs seemed eminently reasonable.

But the oral arguments were frankly idiotic. Both sides made absolutely unreasonable claims that could only undermine their arguments.

For example, Chief Justice Roberts let Maryland’s A.G. get three sentences out before cutting to the point: “A break in custody of one day, do you think that should be enough?” Maryland’s response: Yes.

Roberts pressed on: “So what if it’s repeatedly done? You know, you bring him in, you give him his Miranda rights, he says ‘I don’t want to talk,’ you let him go. You bring him in, give him his Miranda rights, he says ‘I don’t want to talk.” You know, just sort of catch-and-release, until he finally breaks down and says ‘all right, I’ll talk.” Maryland’s response: “We would suggest that the break of custody would be the end of the Edwards irrebuttable presumption.”

Shatzer’s position was even worse, if you can believe it.

The Public Defender opened her mouth to speak, and Justice Alito jumped down her throat. Her first words were that the Court couldn’t create any exceptions to the rule. Alito said, hold on, let’s say “someone is taken into custody in Maryland in 1999 and questioned for joy riding, [invokes his right to counsel, is] released from custody, and then in 2009 is taken into custody and questioned for murder in Montana…. Now does the Edwards rule apply to the second interrogation?” The lawyer’s response: “Yes it does, Justice Alito.”

As one might expect, the justices went to town on the lawyers. Scalia, as usual, got in some good laugh lines at their expense. We’ll leave the entire oral argument to your own reading enjoyment (you can read it here), but these opening exchanges sum it up pretty well.

Maryland’s position is idiotic. They want a bright-line rule that any break in custody ends the Edwards prohibition. It would allow precisely the catch-and-release badgering that Roberts suggested. They argued that, during the release period, if the defendant didn’t go out and get a lawyer, then they’ve essentially revoked the request to have an attorney present at any future questioning.

Shatzer’s position is equally idiotic, if not more so. He wants a bright-line rule that any invocation of the right to counsel essentially immunizes a defendant from any further police questioning in any subsequent action anywhere, for the rest of his life, whether or not the police could have even known about his prior invocation of the right. A police officer in Alaska would have to ascertain whether a suspect had ever been interrogated by police anywhere else in the country at any time in the suspect’s life, and whether the suspect had asked for a lawyer then. That’s flatly impossible and unrealistic.

Both of the parties claim that the existing bright-line rule might create absurdities in theory. To prevent them, they each propose reductio ad absurdum rules at the extreme ends of the spectrum, guaranteed to create absurdities in practice. Well done, folks.

(The lawyer for the United States, as amicus, did make an important point — that the whole purpose is to make sure people aren’t being compelled to incriminate themselves against their will — but the rest of his time was eaten up by nonsense about how long a break in custody would count as enough of a break to evaporate an assertion of the right to counsel.)

-=-=-=-=-

So what should the rule actually be? Seriously, this is not rocket surgery here. The answer seems perfectly obvious:

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.

Defense Wins by Losing: Supreme Court Overrules Michigan v. Jackson

Tuesday, May 26th, 2009

supreme-court.png

In a perhaps not-all-that-important decision this morning, the Supreme Court overruled a landmark case involving the Sixth Amendment right to counsel. Although it seems like a big deal, today’s decision doesn’t really seem to change anything. Criminal procedure is not likely to change. The upshot is that the police still can’t initiate questioning after you’ve asserted your right to counsel.

Interestingly, both sides probably saw it as a loss. The government clearly lost, no question about that. Technically, the defendant won, as he got the government’s win reversed and remanded. But the defendant lost in his bid to get the Supreme Court to announce a new rule imposing an indelible right to counsel that attaches automatically at arraignment.

* * * * *

In Michigan v. Jackson, 475 U.S. 625 (1986), the Burger Court ruled that police cannot start questioning a defendant after that defendant has appeared in court and requested a lawyer. “If police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.”

This morning, a 5-4 Supreme Court overruled Jackson.

Writing for the majority, Justice Scalia found that the Jackson rule is simply unworkable. And anyway, the existing rule of Edwards v. Arizona, 451 U.S. 477 (1981) already provides the necessary protections, so the Jackson rule is unnecessary in the first place. Scalia summed it up this way:

This case is an exemplar of Justice Jackson’s oft quoted warning that this Court is “forever adding new storeys to the temples of constitutional law, and the temples have a way of collapsing when one storey too many is added.” Douglas v. City of Jeannette, 319 U.S. 157, 181 (1943)(opinion concurring in result). We today remove Michigan v. Jackson‘s fourth storey of prophylaxis.

The defense got the reversal it wanted, but not the rule it sought. The defense didn’t want Jackson overruled — it wanted the case to be interpreted as meaning the police can never seek to interrogate a defendant once counsel is assigned, whether the defendant asked for it or not.

Instead, the Court said we already have “three layers of prophylaxis” that protect defendants here, and we don’t need another one. Under the rules of Miranda, Edwards and Minnick, a defendant can tell the police he doesn’t want to speak to them without a lawyer present, and that shuts down any questioning. And the police cannot re-start it later by trying to Mirandize him again in the hopes that this time he waives the right to counsel. These protections already exist without Jackson, so the overruled case “is simply superfluous.”

The overruling wasn’t really a surprise. Sure, the briefs didn’t really talk about it, but it was strongly hinted at during oral argument back in January. More on that in a minute.

The state of Louisiana clearly lost, and its high court got reversed. But the defense didn’t get the outcome it wanted, and the Court isn’t about to make that rule any time soon, now. The defendant does get a second bite at the apple, however — the defense relied understandably on Jackson and not Edwards in its appeal below, so the Court felt it was best to remand and give the defense the chance to argue based on the Edwards rule.

* * * * *

In today’s case, Montejo v. Louisiana, Jesse Montejo was suspected of the robbery and murder of his former boss. Montejo waived his Miranda rights, and admitted killing the victim during a botched burglary. He indicated that he’d thrown the murder weapon into a lake.

This happened in Louisiana, which requires a preliminary hearing called a “72-hour hearing,” the purpose of which is the appointment of counsel. At that hearing, Montejo was charged with the murder, and the court ordered the appointment of a lawyer. Shortly after the hearing, but before the Indigent Defender was assigned, the police Mirandized Montejo again, and took him out to help them find the murder weapon. During the trip, Montejo wrote a letter of apology to the victim’s widow.

At trial, the letter of apology was admitted into evidence over the defense’s objection. Montejo was convicted and sentenced to death.

Montejo appealed, arguing that Jackson required that the letter be suppressed. The Louisiana Supreme Court said no, the Jackson rule only protects defendants who actually requested a lawyer at the hearing — it doesn’t shield defendants from questioning if, like Montejo, they just stand mute and the court orders the appointment of counsel sua sponte. The court felt that the real issue was whether he’d waived his right to have counsel present during the excursion, and Montejo had done so when he was Mirandized that second time.

Montejo filed for cert, arguing that the right to counsel, guaranteed by the Sixth Amendment, goes into effect upon the appointment of counsel, whether the defendant affirmatively asked for it or not. The other four states which had considered this, as well as the 11th Circuit, had ruled his way. And it made more sense to have a bright-line rule like this than to have a case-by-case analysis to determine whether a defendant said the magic words at arraignment which would grant him the right to counsel. A rule requiring defendants to affirmatively accept the appointment of counsel would simply not be administrable, he argued. One thing the briefs did not request was that Jackson be overruled.

During oral arguments, however, Scalia, Roberts and Alito asked whether the Jackson rule ought to be overruled. They suggested that the rule was overbroad, in that it would not allow defendants to voluntarily waive their Sixth Amendment right to counsel after getting a lawyer.

The state, which had submitted very thin briefs relying largely on dicta, didn’t do well at oral argument. Scalia and Kennedy quickly pointed out the absurdity of requiring “a formality on top of a formality” here, and the state only compounded the absurdity by seeming to suggest that defendants would have to keep requesting counsel every time the police sought to question them after arraignment.

The state also made the classic blunder of arguing with a Justice who had lobbed a softball question, in the attempt to help out the lawyer. Alito and Roberts both offered softballs to get the state to point out that Jackson prevents the police from initiating contact without the presence of counsel, but allows the defendant to initiate discussions. Instead, the state’s lawyer fought them, insisting that Jackson is only supposed to make sure the police don’t “badger” defendants who have a lawyer. The state then made the absurd argument that the Sixth Amendment protections ought to vary from state to state — states that make defendants ask for counsel would have Sixth Amendment protections, but states that appoint counsel whether a defendant asked for it or not would not have Sixth Amendment protections.

* * * * *

Given what happened at oral argument, today’s decision is hardly suprising. Writing for the majority, Scalia said “we agree that the approach taken [by the Louisiana Supreme Court] would lead either to an unworkable standard, or to arbitrary and anomalous distinctions between defendants in different States. Neither would be acceptable.”

Louisiana’s distinction between defendants who assert their right to counsel and those who do not “is extremely hazy when applied to States that appoint counsel absent request from the defendant. . . . How does one affirmatively accept counsel appointed by court order?”

Requiring some sort of questioning at every preliminary hearing would be impractical. Those hearings are typically rushed, aren’t even transcribed in many states, and it would be unworkable to try to monitor each defendant’s reaction to the appointment of counsel, if the defendant is even present (which isn’t always the case). Furthermore, how would the police be expected to know what the defendant’s reaction had been, as they can’t be expected to attend these proceedings. Courts would then have to adjudicate whether the police ought to have been able to approach a defendant, which simply adds to the impossibility. So this solution just could not work.

However, even though the Louisiana Supreme Court’s application of Jackson “is unsound as a practical matter,” Scalia couldn’t go along with Montejo’s proposed rule that, once a defendant is represented by counsel, police would not be allowed to initiate any further interrogation. “Such a rule would be entirely untethered from the original rationale of Jackson.”

What Jackson did was to apply the rule of Edwards v. Arizona, 451 U.S. 477 (1981) to the Sixth Amendment. (Edwards involved a defendant who asked for a lawyer when he was Mirandized, so the police stopped questioning, but then the police tried to Mirandize him again, and this time the defendant confessed. The Edwards rule says the police can’t badger the defendant into waiving his rights after he’s asserted them.) All together, the cases mean that if a defendant asserts his right to counsel, and he later waives that right in a subsequent interaction with the police, then that waiver is presumed to be involuntary.

In a situation like Montejo’s, where the defendant was appointed counsel without ever asking for it, this rule simply doesn’t apply. There was no initial assertion of the right to counsel, so there can be no presumption that a subsequent waiver is involuntary. There is no initial decision that is being changed. There is no indication that the police are overriding the defendant’s free will.

So Montejo’s proposed rule just doesn’t fit with the purpose of the existing law. Instead, it “would prevent police-initiated interrogation entirely once the Sixth Amendment right attaches, at least in those States that appoint counsel promptly without request from the Defendant.”

Instead, wrote Scalia, the existing law we already have under Miranda, Edwards and Minnick is sufficient:

These three layers of prophylaxis are sufficient. Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but “badgering” by later requests is prohibited. If that regime suffices to protect the integrity of “a suspect’s voluntary choice not to speak outside his lawyer’s presence” before his arraignment, Cobb, 532 U. S., at 175 (KENNEDY, J., concurring), it is hard to see why it would not also suffice to protect that same choice after arraignment, when Sixth Amendment rights have attached. And if so, then Jackson is simply superfluous.

* * * * *

SO WHAT DOES THIS MEAN?

Here’s a comparison of how the law looked yesterday, and how it looks today:

The right to counsel is triggered…

Yesterday — when you’ve been formally charged, are being interrogated, and now invoke your right to counsel.
Today — when you’ve been formally charged, are being interrogated, and now invoke your right to counsel.

If you invoke your right to counsel…

Yesterday — further discussions are per se excluded, unless you initiate the new contact (Jackson).
Today — further discussions are per se excluded, unless you initiate the new contact (Miranda-Edwards-Minnick).

Supreme Court Messes Up — Fails to Clarify Misunderstood Miranda

Monday, April 6th, 2009

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We admit it: we like to skip to the Scalia dissent.

Not because we necessarily agree with his philosophy of jurisprudence. But because it’s a good bet to be an entertaining read. Whether he’s dissenting from an expansive activist or a fellow limited-role jurist, he’s good for a bit of snark while mercilessly pointing out flaws and internal inconsistencies in the other fellow’s opinion.

So when we saw that Alito, and not Scalia, wrote the dissent in this morning’s Corley v. United States decision on the exclusion of statements, we sighed a little and took in the majority opinion first.

Well, we learned our lesson. Alito can give good dissent.

At issue is 18 U.S.C. § 3501. The statute was passed by Congress back in the 60s, in an attempt to undo some of the aggressive jurisprudence of the Warren Court. Particularly, Congress was trying to nullify the Court’s perceived expansion of the Exclusionary Rule with respect to statements. Miranda made statements inadmissible if suspects weren’t advised of their rights before custodial interrogation, and McNabb and Mallory excluded confessions during extended detention prior to arraignment. §3501(a) tried to nullify Miranda by saying that, notwithstanding any warnings, if the statement was voluntary, then it was admissible. §3501(c) similarly said that custodial confessions weren’t automatically inadmissible because of delay, if they were voluntary. Congress flatly said that voluntary statements were going to be admissible.

Now, all this shows is that Congress didn’t understand Miranda or the McNabb-Mallory rule. At heart behind both rules is the concept of voluntariness. If someone voluntarily inculpated themselves, then the Court has never had a problem with admitting that statement into evidence. The only thing that the Court has ever had a problem with — no matter who was on the bench — is involuntary statements being used against people.

Seriously, the single policy that explains all of the Supreme Court’s jurisprudence on the exclusion of statement evidence is this: “We won’t allow the government to convict somebody by overriding that person’s free will.”

So if the defendant was forced to incriminate himself out of his own mouth, then we won’t let that in. We won’t let the government beat confessions out of suspects, and this is all of a piece.

By the same token, we have no problem with taking blood or DNA samples without the suspect’s permission, because we’re not forcing him to convict himself. We’re just taking already-existing physical evidence, not forcing the suspect to create evidence to be used against him.

Hence the rule of Miranda and its progeny: If a reasonable person wouldn’t feel free to leave, and he’s being quizzed by the government, then incriminating response is by definition involuntary. The only way the government can cure that is to make sure the suspect knew his rights against self-incrimination, and knowingly waived those rights.

And hence the rule of McNabb-Mallory: The longer you’re being held by the government without being informed of the charges against you, the less likely anything you say will be voluntary. At some point, your statement is going to be by definition involuntary, unless the government has taken some affirmative action to ensure it really was voluntary.

Given this, §3501 is really a dead letter. Oh, there have been those who argue that its effect is what Congress intended, the nullification of the case law (see, e.g., U.S. v. Dickerson, 166 F.3d 667 (4th Cir. 1999)). But all §3501 says is that, if a statement was really voluntary, then it is admissible. And that is precisely what the case law also says.

So we come to today’s case, Corley v. U.S. The decision was 5-4, split right down the (jurisprudentially) liberal/conservative line. Souter wrote for the majority, joined by Stevens, Kennedy, Ginsburg and Breyer. Alito fired off the dissent, joined by Roberts, Scalia and Thomas.

And Souter — whom we like immensely — messed it up. Of all Justices, he was the one we expected to really get it, and lay out the real policy and uphold the majesty and wisdom of the law. Instead, he made a hash of it.

All he had to do is say, “yes, §3501 means what it says. But it does not do what Congress meant. The plain language of the statute does not affect our case law in the slightest.” We are willing to bet money that Scalia would have joined the majority if he had said that. And he might have taken the others with him for a Roberts-pleasing unanimous decision.

But instead, Souter said §3501 meant what it said as to Miranda, but it did not mean what it said as to McNabb-Mallory. His internally-inconsistent, self-contradictory interpretation required 18 pages of justification. At the end, he concluded that Congress didn’t mean to nullify McNabb-Mallory while trying to nullify Miranda, and so a Mirandized confession is still excludable if made during an extensive pre-presentment delay.

Souter’s reasoning was unnecessarily convoluted, and required a patchwork of equally risible arguments to fill in the obvious gaps. In dissent, Alito seems to gleefully dissect each one in turn. You just know he was grinning like a fool while writing (or directing) some of these passages. Oh sure, he tries for a veneer of objectivity with phrases like “the Court cites no authority for a canon of interpretation that favors a ‘negative implication’ of this sort over clear and express statutory language.” But that can’t conceal the snark within. Although Scalia might have had more fun with the point that “although we normally presume that Congress means in a statute what it says there, the Court today concludes that §3501(a) does not mean what it says,” it’s obvious that Alito was enjoying himself too.

Interestingly, the dissent does not disagree with the majority’s result, but only with its analysis. We really do think that if Souter had thought it through, he could have had a unanimous opinion clearing up this misunderstood line of cases for posterity.

That’s okay, we just did it for you.