Because we were bored out of our skull this afternoon, we checked this blog’s stats on Google Analytics.  Browsing through the various keywords people have used to find this blog over the past year, all we can say is “The hell is wrong with you people?”

Leaving aside the freaks and weirdos (and possibly some of their clients), however, it seems that most people find this blog by asking Google the same handful of questions.  The number one search engine query that get people here, every month this year, is something along the lines of “why become a lawyer.”  Number two includes variations on a theme of “can a cop lie about whether he’s a cop.”  The top five are rounded out by queries about what crimes Goldman Sachs may have committed, connections between Adam Smith and insider trading, and what one should say to a judge at sentencing.

We’re not sure that we’ve actually discussed all of these topics here.  Then again, we might have, and just forgot it (which is a distinct possibility — these posts are all written in a single pass, without any real editing, and usually are not given another thought once they’re posted.  If you ever wondered what “ephemera” meant, you’re looking at it right now.)

Still, in the interests of alleviating our boredom public service, here are some quick answers to our readers’ most pressing questions:

1. Why Should You Become a Lawyer?

Because you feel a calling to serve others.  Because you want to make a difference in the lives of others.  Because you are genuinely interested in the rules by which human society functions, why people behave the way they do, and the policies and interests underlying it all.  If those are your reasons, then you belong.

Not because you want to make a buck.  Not because you want prestige.  Not because you can’t think of anything else to do.  Not because you want a cool job.  If those are your reasons, you don’t belong.

2.  Can a Cop Lie to You About Whether He’s a Cop?

Of course he can.  Cops are allowed to lie to you about pretty much anything, and that includes whether they’re really an undercover.  Cops are trained to make false statements in order to elicit a confession — it’s not the only way, but it’s a time-honored investigative technique that gets results.  Whether that is ethical or not is not the issue.  But there is no ethical question when it comes to whether an undercover has to admit he’s carrying a badge.  The slightest bit of thought should make that obvious.  An undercover dealing with some dangerous thugs is likely to get shot if they find out he’s a cop.  At the very least, if he himself isn’t killed, the investigation sure will be.  It would be beyond stupid to require undercover officers to announce that fact if someone asked them.  Nevertheless, idiots continue to ask “you’re not a cop, right?” and then go ahead with their crime when the cop says no.

3.  What Crimes did Goldman Sachs Commit?

None that we’re aware of.

Certain people like to rant that there aren’t enough criminal prosecutions to punish the Wall Street types who “caused” the financial meltdown of the last few years.  We’d like to remind those people that stupid business decisions are not a crime.  Neither are smart business decisions undercut by market forces beyond one’s control.  Neither are decisions to hold off on extending credit in uncertain times, especially when the uncertainty is exacerbated and extended by foolish governmental actions.  And neither are those foolish governmental actions criminal.

The one criminal case that was brought, against Bear Stearns executives, was a flop because those guys didn’t commit any crimes either, and the jury saw it pretty clearly.  The case shouldn’t have been brought in the first place, and wiser heads have prevailed against calls for further similar arrests.  The prosecutorial focus has instead shifted to frauds that were exposed once the market turned sour, and to the current fad of insider-trading cases.

4.  Would Adam Smith Approve of Insider Trading?

Depends on which Adam Smith scholar you ask, and on your definition of insider trading.  Speaking generally, he’d probably be in favor of economic decisions being made rationally, taking into account all the relevant information.  He’d probably be opposed to keeping such information secret in the first place.  Still, we’re not an Adam Smith scholar (thank goodness — he’s almost impossible to read).  For a thoughtful and insightful summary of his writings, however, we heartily recommend P.J. O’Rourke’s take “On the Wealth of Nations.”

5.  What Should You Say to the Judge at Sentencing?

It depends on your particular case.  In some cases, especially where there’s been an agreed-upon plea deal, you don’t need to say anything at all.  In some cases, you the defendant opening your mouth is only going to piss off the judge so he gives you a few extra months or years in the slammer.  In other cases, a sincere statement can demonstrate that you’re not the kind of person who ought to get a harsh sentence.  Depending on your circumstances, this could mean a statement of remorse, of change, of compassion, or other things likely to make a difference.

Even if you don’t say anything yourself, and it’s not an agreed-upon plea, it is often a good idea to have a lot of people in your community write letters to the judge showing why you should get a lighter sentence.  These letters should not be sent to the judge, but instead should be sent to your attorney, so he or she can put them together as an appendix to a sentencing memorandum arguing for a lighter sentence.  Letters should be from people who actually know you.  They should state facts about you, specific things you’ve done, as specific as possible.  Provide facts from which the judge can draw conclusions.  The worst letters just provide the conclusory statement that this guy deserves a lighter sentence, without providing any facts to support it.  No, we take that back, the worst letters aren’t about you at all, but are about the writer of the letter — how much they’ll miss you, how hard it will be on them if you go to jail, etc.  Sentencing is not about them, it’s about you.  The judge isn’t going to feel like he’s the one putting them through any hardship; you are.  Just focus on reasons why you shouldn’t get a higher sentence, period.

And if saying anything will just make it worse, then don’t say anything.

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There.  Nothing too in-depth here, but we hope it sorta answers some of your questions.

Dang, that wasn’t as time-consuming as we’d hoped.  Now what else are we going to do this afternoon?

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, we’d already written about how stupid and unnecessary it was.  No wonder we knew what to think about it on Thursday — we’d already thought about it.

With any luck this trial will end in a week or two, and we’ll get back to a semi-regular blogging routine.  In the meantime, we’re going to cheat a bit and just cut-and-paste what we wrote last May.  It’s probably on point, and our thinking probably hasn’t changed much since then.  Here you go:

-=-=-=-=-

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 they’ve been read their rights. Either someone’s going to talk, or they aren’t. Whether or not the police Mirandized them first has zero effect on whether someone’s going to answer police questions.

This is another instance of where the real world differs wildly from what you see on TV. On TV, when someone gets arrested, the cops recite the litany “you have the right to remain silent,” etc. In real life, at least here in NYC, that never ever happens. The first time someone gets Mirandized, if ever, is after they’re taken back to the precinct and it’s been determined that they’re going to confess. Cops are trained not to Mirandize people, in the unfounded belief that people clam up afterwards. As a result, they lose out on a lot of statements they actually could have used.

The person who clams up after being read his rights, or demands a lawyer, would have done so regardless. They already knew the magic words, and so they said them. For those who might have talked anyway, being read their rights actually makes them more likely to do so. They may not know the significance of theMiranda warnings, but by God they know they’re supposed to be read their rights, and once that happens it’s actually satisfying and in a way relaxing. Things are as they should be. Whatever they’re thinking, nobody suddenly thinks “oh my God, I’d better shut up now” once they’re read their rights. Doesn’t happen.

So it’s a rare instance of where real life ought to be more like TV. If, immediately on arrest, the cops said the magic litany, they’d be able to gather so many more confessions and statements that they’d be able to use at trial. There would be more evidence, not less. This is no less true in the case of terrorist subjects than anyone else. The Times Square suspect seems to be a typical case, still talking happily long after being Mirandized.

This leads to the second point: There is no reason to Mirandize someone if you’re not going to use the statements at trial in the first place. Nothing prevents the gathering of intelligence for national security purposes when that intel is not going to be used at the trial of the guy who’s spilling the beans. Miranda doesn’t preclude the gathering of intelligence, it only precludes using stuff at trial.

So seriously, if the administration wants actionable intelligence they can use to hunt down terrorists in Pakistan, the Miranda rule is not stopping them. You want to find out who controlled the terrorist, who the other members of his cell were, where the money came from, who supplied the training and equipment, then go to it. You don’t need it for trial, all you need is the evidence of the crime. Hell, you don’t need his confession at all. Just proceed with the criminal case as if the guy had never confessed. Use his statements to prevent future attacks and build investigations against other people (who won’t have standing to object) and try him with all the other evidence you got.

-=-=-=-=-

What is the purpose of the Miranda rule, after all? It’s the same as the reason for the Fifth Amendment right against custodial self-incrimination. The only reason is to make sure the state doesn’t use its awesome power to override the free will of the individual, and force him to incriminate himself out of his own mouth.

If nobody’s forcing you to incriminate yourself, the law doesn’t care. It was your own free will, stupid as it may have been. But if you really do not want to say the words that will result in your punishment, then the state cannot extract those words by fear or intimidation or pain.

And when you’re in custody, you’re in an inherently intimidating situation. So the asking of any questions by the police when you’re in custody — or even raising an eyebrow or doing anything else likely to get an incriminating response — is unfairly taking advantage of the might of the state to force you to say the words against your will. Conceptually, it’s no different from Star Chamber or the Inquisition, and it’s what Americans have been dead set against from the get-go.

But note that this is the only thing we’re concerned with here. There’s no self-incrimination issue if your DNA is sampled for comparison to the DNA found at the scene, even if it convicts you. You weren’t actively convicting yourself, your free will was not involved, even if you objected to the DNA sampling itself. You weren’t providing facts out of your own mouth that you didn’t want to say. It’s not a Miranda issue.

And if someone else made statements that resulted in your conviction, it’s not an issue either. It wasn’t your free will being overridden, so you don’t get to complain about it, and you don’t get to have his statements suppressed. They can be used against you just fine (except of course for Bruton and other issues that aren’t really the point here).

So none of this is really the concern here when interrogating suspected terrorists. The point is not so much to gather evidence to use at trial — law enforcement already has it, or else they wouldn’t be interrogating the guy now. But there’s zero harm in simply reading the guy his right the instant he’s arrested, so when hedoes talk you can use it. Because he’s not going to decide not to talk just because you read him his rights.

We’re on the record already saying the Administration’s foolish for focusing on civilian criminal justice in dealing with foreign terrorists. But even if we agreed with that policy, we’d still have to conclude that they’re being extra-foolish here. It’s a bad idea.

Finally, don’t forget about all those unintended consequences that seem to happen more often than not. The Obama administration could wind up eroding theMiranda rule dramatically, by creating a precedent for carved-out exceptions via the Legislative branch. Something tells us that vote-hungry congressmen, always eager to look tough on crime, would jump at the precedent to take away even more of our Constitutional protections. It always seems like this happens most often as the result of good-intentioned administrations who ignore common sense in their rush to do “the right thing.”

So, like we said, this is just stupid. Holder’s wrong. Terrorism is no reason to relax Miranda.

Last week, the House passed a bill that would prevent the federal government from prosecuting Guantanamo detainees in civilian courts (by cutting off the funds to do so).  The Senate is now considering it as part of the 1,900-page omnibus spending bill.  This is largely seen as a reaction to the acquittal of Ahmed Ghaliani — the first Guantanamo detainee to be tried in civilian court — of more than 280 charges stemming from the bombings of U.S. embassies in Africa.

The Obama administration is fighting against it, with AG Holder writing a (fairly lame, in our eyes) letter insisting that we absolutely must use civilian courts to deal with terrorists and captured combatants.  Essentially, his argument is that civilian courts are a tool that has worked before, so why deny that tool to the executive branch and make it fight the bad guys with one hand tied behind its back?

Ignore the ham-handed attempt to co-opt a common complaint about the left’s frequent insistence on soldiers doing actual fighting with one hand tied behind their backs, lest they rile someone’s sensibilities.  It’s a dumb argument.  Guantanamo detainees didn’t commit crimes within the territorial jurisdiction of the United States.  Their acts are acts of war, or of transnational combat that is more like war than anything else.

Congress is gearing up to do the right thing, but for the wrong reason.  The principle should not be “we can’t do this because we might lose in court” — that’s not even a principle.  It’s just a weakling’s worry.  The principle should be “we can’t do this because it’s wrong.”

First off, soldiers are not cops.  Secret squirrels are not cops.  Their job is not to obtain constitutionally admissible evidence in order to secure a conviction in court some day.  Their job is to achieve a military end — secure some territory, disable the enemy’s troops, deny the enemy’s objectives, etc.  Let’s say a soldier just captured a guy who was shooting at him 30 seconds ago, and wants to find out where the prisoner’s buddies are and what they’re going to be up to next.  The Obama folks would require that soldier to treat that prisoner with all the rights due under ever-evolving Fourth and Fifth Amendment law — with the dire consequence that if he fails to do it perfectly, this guy is going to be released by a court, to fight another day.

Who’s asking whom to fight with one hand tied behind their back, again?

-=-=-=-=-

The threshold issue, of course, is whether an enemy fighter taken on the field of combat has the same constitutional rights as an American citizen arrested for a crime.  The Holder approach would extend U.S. constitutional rights to everyone in the world.  By extending U.S. criminal jurisdiction so far, the associated rights and rules are extended as well.  This can be a problem.

Look at Miranda, for example.

First of all, the basic principle that underlies the Fifth Amendment protection here is that Americans don’t want the government to be able to override the individual’s free will, so that the individual convicts himself out of his own mouth.  It’s that whole Star Chamber thing.  It’s fine if you admit to something on your own, but it’s not okay if you didn’t want to say it, and the government forced you to say it anyway.

The government has awesome powers, so if the government has taken you into custody and you’re not free to leave, that’s a pretty intimidating circumstance right there.  If they try to make you talk while in custody, then that’s presumptively an attempt to override your free will.

So to ensure that anything you say is really voluntary, and not being forced out of you, the government has to make sure you understand that you don’t have to say anything, and that if you do say something they’re going to use it to try to convict you.  Once you understand that, and agree to talk anyway, you’re now presumptively acting voluntarily, and our Star Chamber concern goes away.

Now, the government is free to ask questions all they want without mirandizing you first.  They just can’t use your statements against you if they do that.  So they can ask questions without the Miranda warnings if they’re just going to get intelligence on other people’s crimes, and they don’t care if what you say is going to be admissible at your trial.

The problem is, how is anything this prisoner says not something you’d want to use at his trial?  Any useful intel is going to be proof that he knew it, that he was involved.  Miranda is always going to apply.

And if the 19-year-old soldier who captured him didn’t know his con law as well as the Supreme Court, he could well get it wrong.  And the guy could go free to wreak havoc another day.  As if he happens to be roaring his questions down the barrel of a rifle.

And most military and intelligence interrogation is specifically designed to override one’s free will.  That’s the whole point.  Your captive does not want to talk, for reasons of honor, loyalty, patriotism, the safety of his buddies, etc.  He’s probably been trained to resist interrogation.  This is not like a criminal suspect who admits his wrongdoing because he feels guilty, or to get it off his chest, or to do the right thing, or to get a lighter sentence.  Criminal suspects and military/intel detainees are two entirely different animals.  It is imperative that detainee interrogators do precisely what the Fifth Amendment doesn’t want police doing.

Well, hang on, we hear you saying.  What about the public-safety exception?  Aren’t police allowed to question without Miranda to get info so they can prevent a threat?  Wouldn’t that fit trying to get intel on what the terrorists or enemy troops are plotting?

No, it wouldn’t.  The public-safety exception only works if the questioning is absolutely necessary — there are no other reasonable options — to prevent an immediate threat to public safety.  Terrorist and combatant plans aren’t really immediate.  “Where did you plant that roadside bomb” might count, but “what are you guys planning to do next” doesn’t.

Also, if you extend the public-safety exception to cover these kinds of things, then you’ve pretty much swallowed the entire rule.  Because once you’ve gone beyond the necessity of an immediate present danger, pretty much any criminal case is going to fit the mold, and the Fifth Amendment goes out the window.

Well, you say, isn’t there an argument that Miranda doesn’t really apply to military or intelligence interrogations?  No, not a good one.  It hasn’t been litigated, so there’s no law on it, but whenever we extend the power to prosecute, we also extend the constitutional protections that go with it.  Failure to do so would undermine the very protections we hold most dear.

And none of this has really been litigated.  The law is nonexistent, or unclear at best.  Should soldiers and CIA operatives really have to be thinking about all this when they should be fighting a war.  We already have young JAG officers looking over the shoulder of commanders back at the base.  Should we have them out in the field okaying everything the soldiers would do before they can do it?  Soldiers aren’t cops.

It’s backwards to argue that civilian criminal prosecution must remain an option.  These are not civilian matters.  These are not crimes.  It’s not a mistake to preclude the feds from using this tool, because it’s not the right tool.  And make no mistake, the administration doesn’t merely want to keep the option open — they want this to be the only option.  Keeping with the tool analogy, they’re saying we should keep open the option of using a saw to drive a nail, when doing so would be not only wrong but dangerous.

It should come as no surprise to anyone with any experience in criminal law that perfectly innocent people will sometimes confess to crimes they did not commit.  Perhaps they were in a suggestible state, and the police led them to believe they’d done it.  Maybe they were broken by the interrogation and said whatever the cops wanted to hear, just to end it.  Maybe they didn’t really confess, but had their words taken out of context (or invented) by the cops.  (For tips on defending cases involving a confession, see our CLE lecture over at West Legal Ed Center.)

In recent years, there has been growing attention to the phenomenon of false confessions, and folks have begun investigating the reasons why an innocent person will not only confess to a crime he didn’t commit, but will often do so with such detail that it seems impossible for them not to have committed it.  The New York Times had a decent article yesterday on this very phenomenon.  The article reports on a study by UVA (wahoowa!) law professor Brandon Garrett, into reasons why an innocent person may sometimes confess with extraordinary detail.

To defense lawyers, the new research is eye opening. “In the past, if somebody confessed, that was the end,” said Peter J. Neufeld, a founder of the Innocence Project, an organization based in Manhattan. “You couldn’t imagine going forward.”

The notion that such detailed confessions might be deemed voluntary because the defendants were not beaten or coerced suggests that courts should not simply look at whether confessions are voluntary, Mr. Neufeld said. “They should look at whether they are reliable.”

Professor Garrett said he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.

Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”

This is another good bit from the article:

Steven A. Drizin, the director of the Center on Wrongful Convictions at the Northwestern University School of Law, said the significance of contamination could not be understated. While errors might lead to wrongful arrest, “it’s contamination that is the primary factor in wrongful convictions,” he said. “Juries demand details from the suspect that make the confession appear to be reliable — that’s where these cases go south.”

Jim Trainum, a former policeman who now advises police departments on training officers to avoid false confessions, explained that few of them intend to contaminate an interrogation or convict the innocent.

“You become so fixated on ‘This is the right person, this is the guilty person’ that you tend to ignore everything else,” he said.

There’s been growing pressure for police departments to videotape interrogations, and the practice has been adopted here and there.  There are no good reasons not to tape interrogations — digital cameras are commodities now, and digital memory is insanely cheap.  Detectives can review sessions at will, gleaning more (and more accurate) data from them over time.  They can only help the police do their job.  Objections stem primarily from a fear that interrogation techniques will make the police look bad and undermine their efforts (much like the objections to public videotaping of police in action).  Such objections are only valid if what is being taped shouldn’t have been done in the first place.

The only reason for a police officer to oppose videotaping confessions is because he doesn’t want evidence of his own misconduct.

Professor Garrett’s article is worth a read.  You can find it here, 62 Stan. L. Rev. 1051.

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.”

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Here’s how we see it, in a nutshell:

There’s a difference between exercising your right to remain silent, and invoking it.  Exercising it means you’re keeping your trap shut.  (A sound policy, and one we heartily recommend.)  Invoking your right, however, means you’re giving the authorities a clear signal that that they can’t ask you any more questions.  You’re taking the Fifth.

When cops read you your rights from one of those Miranda cards, they typically end with the waiver questions.  When they ask “do you wish to talk to us now,” and you say nothing, you haven’t answered the question.  But if you say “NO,” then you have invoked your right to remain silent.

The dissent, and many critics we’ve been reading lately, say it’s obvious that someone who’s kept his mouth shut for three hours, as in this case, is someone who has clearly invoked his right to remain silent.  At some point, his exercise of his right should have indicated to the cops that he was actually invoking it.

But at what point, exactly?  There’s no obvious demarcation line here.  It clearly can’t be that silence in response to the very first questions counts as an invocation of the right.  That would be stupid.  Mere silence cannot be enough.  And silence is all we had here — there’s no point where the suspect told the cops to stop asking questions.  He allowed them to ask, and just said nothing for a while.

But aha! it’s not just mere silence — it’s silence plus time!  At some point, enough time has passed that any cop with sense would know he ought to stop asking questions.

That’s also not very helpful.  At what point, exactly, does mere silence convert into a constructive invocation of the right?  If cops can’t figure this out pretty clearly, there’s not going to be any point in having the rule to begin with.  And deciding it after the fact, on a case-by-case basis, is just an incentive for cops to go too far in the first place, and let the judges sort it out later, if the case even gets that far (which most don’t).

The cops do need to know how far they’re allowed to go.  That’s how the exclusionary rule works.  We don’t punish cops for crossing the line, because they’ll never go near it, and society will lose out on evidence that could properly have been used.  All we do is take away the evidence they shouldn’t have gotten.  That prevents the government from securing a conviction through violating your rights, but also allows the government to gather and use all the evidence it can lawfully obtain. 

But if the cops don’t know where the line is, the exclusionary rule breaks down.  They’ll shy away from some lawful evidence, in one case.  In another case, they’ll go way over the line, and only find out after the hearing that they did it wrong.

So if you haven’t invoked your right to remain silent, but instead are just exercising it and keeping quiet, there’s no obvious point at which a reasonable person would think the cops shouldn’t be allowed to ask any more questions.

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We have to interject here, to quote a great line from James Taranto that we just read while taking a coffee break (link here):

There’s something screwy about Sotomayor’s logic.  The court did not hold that Thompkins could be compelled to speak, only that he had to speak up in order to exercise his right to end the interrogation, which is a corollary to the right to remain silent.  Having failed to do so, he still had every right to remain silent — a right he could easily have exercised by remaining silent.

Snarky, but sound.

-=-=-=-=-

So what did the majority actually say here?  Let’s summarize:

Miranda deals with two rights — the right to counsel, and the right against compelled self-incrimination.

If a suspect invokes either right, the interrogation must cease.

There wasn’t any rule, really, about how to invoke the right to remain silent.  But the Davis rule has long been that the right to counsel must be invoked “unambiguously” and “unequivocally” to make the police stop questioning.  That avoids difficulties of proving whether it had been invoked in less clear circumstances.  And it gives guidance to officers on what they can and cannot do in a given situation.

There’s no reason why the same reasoning shouldn’t apply for a rule about invoking the right to remain silent.  If it’s unambiguous and unequivocal, then the cops have to stop asking questions.  If the circumstances are iffy, then the cops can keep asking.

Thompkins exercised his right to remain silent for three hours, but he never invoked it.

When a person has been mirandized, and he has neither invoked nor waived his rights, the police are allowed to question him.  The police don’t need an express or implied waiver first, before they’re allowed to interrogate.  And even if the suspect has given an express waiver, or implied one by answering questions, all the suspect has to do is invoke his rights and the interrogation must stop.

A waiver can be inferred from the circumstances, but an invocation has to be clear.

When Thompkins did eventually speak to the police, there was no reason to believe he did so involuntarily.  There was no reason to believe he wasn’t aware of what he was doing, and the consequences.  There was no coercion.  He could have continued to remain silent if he so desired.  He understood his rights, and now made a voluntary choice to waive his right to remain silent. 

-=-=-=-=-

That’s pretty much it, for the Miranda portion of the decision.  All they did, really, was clarify an open area of law, in a manner consistent with the existing rules.  They didn’t suddenly turn Miranda on its head, no matter what the dissent says.  All the majority did was fill in a gap in Miranda using the same policy and reasoning as for the rest of it.

So yeah, that sounds about right.

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 they’ve been read their rights. Either someone’s going to talk, or they aren’t. Whether or not the police Mirandized them first has zero effect on whether someone’s going to answer police questions.

This is another instance of where the real world differs wildly from what you see on TV. On TV, when someone gets arrested, the cops recite the litany “you have the right to remain silent,” etc. In real life, at least here in NYC, that never ever happens. The first time someone gets Mirandized, if ever, is after they’re taken back to the precinct and it’s been determined that they’re going to confess. Cops are trained not to Mirandize people, in the unfounded belief that people clam up afterwards. As a result, they lose out on a lot of statements they actually could have used.

The person who clams up after being read his rights, or demands a lawyer, would have done so regardless. They already knew the magic words, and so they said them. For those who might have talked anyway, being read their rights actually makes them more likely to do so. They may not know the significance of the Miranda warnings, but by God they know they’re supposed to be read their rights, and once that happens it’s actually satisfying and in a way relaxing. Things are as they should be. Whatever they’re thinking, nobody suddenly thinks “oh my God, I’d better shut up now” once they’re read their rights. Doesn’t happen.

So it’s a rare instance of where real life ought to be more like TV. If, immediately on arrest, the cops said the magic litany, they’d be able to gather so many more confessions and statements that they’d be able to use at trial. There would be more evidence, not less. This is no less true in the case of terrorist subjects than anyone else. The Times Square suspect seems to be a typical case, still talking happily long after being Mirandized.

This leads to the second point: There is no reason to Mirandize someone if you’re not going to use the statements at trial in the first place. Nothing prevents the gathering of intelligence for national security purposes when that intel is not going to be used at the trial of the guy who’s spilling the beans. Miranda doesn’t preclude the gathering of intelligence, it only precludes using stuff at trial.

So seriously, if the administration wants actionable intelligence they can use to hunt down terrorists in Pakistan, the Miranda rule is not stopping them. You want to find out who controlled the terrorist, who the other members of his cell were, where the money came from, who supplied the training and equipment, then go to it. You don’t need it for trial, all you need is the evidence of the crime. Hell, you don’t need his confession at all. Just proceed with the criminal case as if the guy had never confessed. Use his statements to prevent future attacks and build investigations against other people (who won’t have standing to object) and try him with all the other evidence you got.

-=-=-=-=-

What is the purpose of the Miranda rule, after all? It’s the same as the reason for the Fifth Amendment right against custodial self-incrimination. The only reason is to make sure the state doesn’t use its awesome power to override the free will of the individual, and force him to incriminate himself out of his own mouth.

If nobody’s forcing you to incriminate yourself, the law doesn’t care. It was your own free will, stupid as it may have been. But if you really do not want to say the words that will result in your punishment, then the state cannot extract those words by fear or intimidation or pain.

And when you’re in custody, you’re in an inherently intimidating situation. So the asking of any questions by the police when you’re in custody — or even raising an eyebrow or doing anything else likely to get an incriminating response — is unfairly taking advantage of the might of the state to force you to say the words against your will. Conceptually, it’s no different from Star Chamber or the Inquisition, and it’s what Americans have been dead set against from the get-go.

But note that this is the only thing we’re concerned with here. There’s no self-incrimination issue if your DNA is sampled for comparison to the DNA found at the scene, even if it convicts you. You weren’t actively convicting yourself, your free will was not involved, even if you objected to the DNA sampling itself. You weren’t providing facts out of your own mouth that you didn’t want to say. It’s not a Miranda issue.

And if someone else made statements that resulted in your conviction, it’s not an issue either. It wasn’t your free will being overridden, so you don’t get to complain about it, and you don’t get to have his statements suppressed. They can be used against you just fine (except of course for Bruton and other issues that aren’t really the point here).

So none of this is really the concern here when interrogating suspected terrorists. The point is not so much to gather evidence to use at trial — law enforcement already has it, or else they wouldn’t be interrogating the guy now. But there’s zero harm in simply reading the guy his right the instant he’s arrested, so when he does talk you can use it. Because he’s not going to decide not to talk just because you read him his rights.

We’re on the record already saying the Administration’s foolish for focusing on civilian criminal justice in dealing with foreign terrorists. But even if we agreed with that policy, we’d still have to conclude that they’re being extra-foolish here. It’s a bad idea.

Finally, don’t forget about all those unintended consequences that seem to happen more often than not. The Obama administration could wind up eroding the Miranda rule dramatically, by creating a precedent for carved-out exceptions via the Legislative branch. Something tells us that vote-hungry congressmen, always eager to look tough on crime, would jump at the precedent to take away even more of our Constitutional protections. It always seems like this happens most often as the result of good-intentioned administrations who ignore common sense in their rush to do “the right thing.”

So, like we said, this is just stupid. Holder’s wrong. Terrorism is no reason to relax Miranda/.

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.

-=-=-=-=-

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.

On June 25 last year, the Supreme Court held in Melendez-Diaz v. Massachusetts that in a drug case the prosecution can’t simply use a sworn lab report to prove the existence of a controlled substance. If the chemist doesn’t testify, it violates the Confrontation Clause. (See our previous post about it here.)

Four days later, on June 29, the Court granted cert. in Briscoe v. Virginia, to decide whether the states can get around this requirement if they permit the defendant to call the lab analyst as a defense witness. Oral arguments are scheduled for next Monday, and we can’t wait to hear how the Commonwealth of Virginia tries to make its case.

It seems to us that there is an obvious burden-shifting problem here. The state, and only the state, has the burden of proving every element of the crime. Since the Winship case in 1970, this has been a due process requirement of the Constitution. Unless he asserts an affirmative defense, the defendant has no burden to prove a thing.

So the prosecution has to prove an element. It needs a forensic test to prove it. It needs the testimony of the analyst to introduce the results of that test. The defense does not have a burden to prove anything, one way or the other, about the test.

But Virginia wants to be able to prove its case using only the lab report, and get around the Confrontation Clause by saying the defense is allowed to call the analyst if they want to confront him.

First, who cares whether the state allows the defense to call the analyst or not? Last time we checked, the defense could call any witness they chose, by subpoena if need be. The defense always has the opportunity to put the analyst on the stand as a defense witness. This “permission” doesn’t actually give the defense permission to do anything it couldn’t already do. All it does is imply wrongly that the defense couldn’t have done so otherwise.

Second, the state cannot impose a burden of proof on the defense like this. Virginia’s scheme essentially precludes the defense from challenging the state’s evidence during the state’s case. It forces the defense to act affirmatively and put on a defense case in order to challenge the state’s evidence. That’s a big due process violation.

Third, the state does not get around the Confrontation Clause by shifting the burden to the defendant to call those witnesses it wishes to confront. In a murder case, it would absurd to let the prosecution introduce an eyewitness’s written account of what happened, and no more, so long as the defendant himself could have called the eyewitness if he wanted to. That’s indistinguishable from what Virginia wants to do.

-=-=-=-=-

Lots of prosecutors’ offices are hoping that the Supremes will side with Virginia on this one. Particularly in the more amateurish offices, there is a feeling that the Melendez-Diaz decision imposes too great a cost on the criminal justice system, and imposes unworkable inefficiencies, by requiring chemists to take time off from their busy jobs to testify at trial. An amicus brief filed by half the nation’s attorneys general makes these arguments.

But just look here at New York City, the busiest criminal courts and crime lab in the world. Lab reports are used in the grand jury, where there is no confrontation right, but the chemists themselves must testify at trial. Somehow, this requirement has not bankrupted the city. Getting the chemist to show up is just one more minor hassle that prosecutors have to deal with, no more challenging than getting cops to show up. The requirement is so minor that nobody really thinks about it.

-=-=-=-=-

Still, Melendez-Diaz was a 5-4 decision. And one of the five, Justice Souter, has been replaced by former prosecutor Justice Sotomayor. So people are thinking that she’s going to be more pro-prosecution here, and help the Court either reverse or severely limit that decision.

We don’t think so. We’d remind Court observers that Sotomayor came out of the Manhattan DA’s office, not one of the “amateur hour” offices. Her own personal experience is that requiring the chemist to testify at trial is really no big deal.

-=-=-=-=-

So we’re looking forward to the oral arguments next week. If Scalia gives as good as he did in last June’s decision, and if we’re right about Sotomayor, then Virginia’s in for a spirited beatdown.

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…

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.

With only two more decision dates remaining in this Supreme Court term, we’ve got our eyes on four criminal cases yet to be decided. Either next Monday (June 22) or the following Monday (June 29), we should expect to hear from the Supremes.

We’re going to make a prediction right now that all four cases will be decided in favor of the defense. Furthermore, we predict large majorities or unanimous decisions in each case. (Go ahead and laugh, we’ll wait for you.)

The four cases are:

Safford USD v. Redding, No. 08-479. We talked about this one before (see here). A public school had an absurd zero-tolerance policy (surprise, surprise), this time prohibiting prescription Advil. A girl got caught with some. She blamed someone else (surprise, surprise). School authorities confronted the other girl, Redding, who denied being involved. They searched her backpack, and found nothing. They searched her clothes, and found nothing.

Now at this point, a reasonable person might have figured out that the girl who was caught with the actual pills was trying to pull a fast one here. But these were not reasonable people — they were public school officials. So they had Redding — a 13-year-old girl — expose her breasts and vagina. They found no pills. Then they shook out her underwear, and found nothing. Then both the school nurse and another school official physically searched the girl’s body. They found nothing.

Now at this point, a reasonable person would have surely figured out that there was nothing to see here. But these bright bulbs instead stuck the girl in the principal’s office alone for a few hours, didn’t contact her folks, and didn’t bother searching anyone else.

The girl sued, claiming (surprise, surprise) that her Fourth Amendment rights had been violated.

The Supreme Court has now been asked to decide whether public school officials are permitted by the Fourth Amendment to perform a warrantless strip search of a student whom they merely suspect of possessing forbidden contraband.

The school wants the Court to say yes, schools can perform strip searches any time they have reason to suspect that a student has forbidden contraband. They want a rule that doesn’t let judges second-guess the judgment of school officials.

Our prediction is that the Court isn’t going to grant such a bright-line rule. For the reasons we set out in our previous post, we predict that the Court will require a case-by-case analysis. It will be fact-specific, whether the officials have evidence that is sufficiently credible to justify an articulable suspicion that contraband will be found during a strip search. And it will require a balancing, to ensure that the invasiveness of the search is proportionate to the danger of the contraband sought. A strip-search to find an explosive is one thing; but examining a young girl’s private parts to find Advil is another thing entirely.

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The next case we’re looking for is Yeager v. United States, No. 08-67.

The issue in Yeager is collateral estoppel after a hung jury. Specifically, a jury acquitted on some counts, and hung on other counts, all sharing a common element. Perhaps the only explanation for the acquittals is that the jury decided that common element in the defendant’s favor. So is the government prevented from re-trying the hung counts, by collateral estoppel?

Yeager was an executive with Enron’s telecom unit, charged with 176 white-collar crimes. After a three-month-long trial, the jury acquitted him on the counts of conspiracy, securities fraud and wire fraud. But the jury hung on the counts of insider trading and money laundering.

The Fifth Circuit said that one explanation for the acquittals is that the jury found that Yeager had no inside information. That was also an element of the insider trading count. But the Circuit said it was impossible to determine “with any certainty what the jury” actually must have decided. So that meant there could be no collateral estoppel precluding a new trial.

At oral argument, Justice Souter honed in on the real issue here, which is a conflict between two underlying principles of our current jurisprudence. On the one hand, once a jury has determined a fact, the government doesn’t get a second chance to prove it. On the other hand, the government is permitted a full opportunity to convict, so it is allowed to re-try counts where a jury hung. Chief Justice Roberts and Justices Kennedy and Breyer explored the conflicting principles in greater depth. Although the government’s attorney was more deft at handling the philosophical argument, and Yeager’s attorney seemed to be stuck in a surface argument, it seemed by the end that the Court was siding with Yeager.

What seems to have killed the government’s position here was its assertion that acquittals should not affect retrials if they are not “rational” — meaning they are inconsistent with the jury’s remaining outcomes — and that a hung count is an outcome that can be used to determine whether the actual verdicts were rational. That not only conflicts with precedent that permits inconsistent verdicts, but also defies common sense by treating the absence of a decision as an affirmative determination.

This one’s a tossup, but we’re going to predict a ruling in favor of Yeager here.

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The third case to watch for is District Attorney’s Office v. Osborne, No. 08-6.

Osborne was convicted 14 years ago for kidnapping and sexual assault. The victim was brutally assaulted and raped in a remote area in Alaska. Osborne was alleged to have used a blue condom. A blue condom was found at the scene, containing semen. Osborne now wants to get discovery of the semen, and have DNA testing done at his own expense, in the hopes that it will demonstrate his innocence. The State of Alaska refused.

Osborne brought a 42 U.S.C. §1983 civil rights suit, arguing that Alaska’s refusal violated his Due Process rights. The district court dismissed the suit, saying he should have brought a Habeas claim instead.

The Ninth Circuit issued two decisions. The first was that a §1983 suit is fine here, because the outcome would not necessarily undermine the state-court conviction. The DNA evidence could potentially prove his guilt, or be inconclusive. It would only require Habeas if the evidence would have to demonstrate innocence. And he could still bring a Habeas later if the §1983 action fails.

In its second decision, the Ninth Circuit forced the Supreme Court’s hand. The Supremes have long taken pains to avoid deciding whether a convict can overturn his conviction based only on a claim of innocence, rather than on pointing out defects in the way the trial was conducted. But the Ninth assumed that this is permissible.

Then, based on that assumption, the Ninth said that in circumstances like that — in fact, only in circumstances like that — where a convict could later use the evidence in a freestanding innocence claim, then Brady gives a post-conviction right to access potentially favorable evidence.

The Supreme Court is now deciding both issues: whether the §1983 suit is appropriate for accessing DNA evidence post-conviction, and whether Due Process requires such access if it could establish innocence.

At oral argument, Justice Souter barely let the Alaska A.G. get a word out before launching a lengthy debate over whether Osborne merely sought evidence that might or might not allow him to establish a claim later, or whether he sought evidence that he affirmatively believes will be the basis of a claim of innocence. By the end, both Scalia and Ginsburg had gotten involved, and the Chief Justice was wondering whether the State even had the evidence any more. Breyer got everyone back on track, pointing out that §1983 was appropriate when you didn’t know what the evidence was yet, and Habeas is appropriate when you do know. And here, nobody knows what the DNA evidence is, yet. So how come the State doesn’t have a constitutional obligation to give him the DNA?

The AG gave a terrible response, saying that Osborne simply followed the wrong procedure. Half the bench jumped in to interrupt him, dumbfounded at the assertion, given that Alaska doesn’t have a statutory procedure in the first place. The one statute out there (as Scalia pointed out) first requires an assertion that the evidence establishes innocence, which is the one thing nobody can say yet, because it hasn’t been tested yet. Souter and Scalia tag-teamed the AG on that mercilessly. At one point, Scalia had the audience laughing at the AG. For the rest of the oral argument, the Justices would refer to the fact that they “must have missed” this procedure being mentioned in any of the briefs.

By the end of the AG’s time, nobody had even gotten to the juicy issues yet. Breyer tried to give the AG a chance to talk about it, but the AG just went back to his procedural claim that had used up his time already. This only frustrated the Justices.

The U.S., as amicus to Alaska, started off better, getting to the heart of the issue — the issue the Supreme Court has so long avoided — arguing that prisoners do not have the right to challenge their conviction based on a freestanding claim of actual innocence. But Souter suggested that the right may be found, “not in procedural, but in substantive Due Process,” and asked a hypothetical about letting counsel speak to another prisoner who claims to have exonerating evidence. The Deputy S.G. floundered, and got laughed at as well. They never even got to the constitutional issue (as Souter repeatedly pointed out), and got mired in whether the government even has an interest here in the first place. And then time was up.

Osborne’s lawyer did much better. He deflected the Court’s concerns that at trial the defense had chosen not to test the DNA, and thus must have believed it would show guilt, by pointing out that both sides chose not to test it, because the tests available would have destroyed all of the evidence, precluding later testing.

The Justices across the board expressed concern that they were being asked to create a new constitutional right here. Shouldn’t a prisoner have to make a claim, under penalty of perjury, that he is actually innocent first? Shouldn’t there be a requirement of due diligence, so that claims aren’t made years and years after they could have been brought? Osborne’s attorney admitted that those are fine ideas, and wouldn’t be an obstacle here.

Then Scalia tipped his hand a little. Osborne’s lawyer observed that this is the first case where a prosecutor conceded that DNA would be “absolutely slam-dunk dispositive of innocence,” but doesn’t let the prisoner access it. Scalia thought out loud, “you know, it is very strange. Why did they do that, I wonder?” “Well, it’s very…” Scalia interrupted, “there was a lot of other evidence in the case, wasn’t there?” “Well, that’s…” Scalia cut in, “I don’t know what they thought they were doing.”

Scalia, for one, is not likely to side with the DA’s office here.

Souter came back to his conclusion that this is a substantive Due Process issue, which would require that the prisoner first claim that he is actually innocent. This conflicted with the sworn testimony before the Parole Board admitting guilt. But Breyer pointed out that prisoners often wisely admit guilt before such Boards, because they’re not getting out otherwise. (As defense lawyers like to say, forget guilt or innocence, “out is out.”) So relying on Parole Board admissions would be an arbitrary basis for withholding DNA evidence. So “suppose we said that the rule is non-arbitrary, with illustrations. Send it back to the states. And of course, when they apply their own statutes, by and large they’re not being arbitrary.” Osborne’s counsel agreed, “I think that’s a very sound approach to this.” Breyer responded, “well, it does help you win.”

I don’t think Breyer or Souter are siding with Alaska here, either.

The Chief Justice wondered if the right would be depend on the accuracy of the testing available. No, said Osborne’s lawyer, it has nothing to do with it — the right would just prohibit the state from arbitrarily preventing access to evidence. So long as there’s a reasonable probability that the test will demonstrate evidence, then that should be enough.

On rebuttal, the AAG got maybe three words in edgewise.

So just going from the oral argument, we’re going to predict a loss for Alaska.

Now whether that means a whole new constitutional right or not, well we’re not so sure. This only affects a handful of defendants whose convictions came before the Federal Innocence Protection Act in the mid-1990s.

The trick, though, will be whether the Court can continue to avoid the elephant in the room, the issue of whether one can assert a freestanding claim of innocence. The Ninth Circuit made it a prerequisite, and both the liberal and conservative Justices seemed to put a lot of weight on whether the prisoner first asserted innocence.

We predict that the Court is going to go all the way here. And as long as we’re going out on a limb, we’ll also predict a unanimous decision.

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The final criminal case yet to be decided is also the oldest: Melendez-Diaz v. Massachusetts, No. 07-591.

The issue is straightforward: Is a lab report, by itself, a form of testimony for Confrontation Clause purposes, per Crawford v. Washington, 541 U.S. 36 (2004)?

Crawford says you can’t introduce earlier statements of a government witness, if they hadn’t been subject to cross-examination.

Well, a police lab report wasn’t subject to cross-examination when it was created. But they are often admitted into evidence without live testimony from the chemist or forensic expert who made the report — they’re self-authenticating. If lab reports are testimonial, then Crawford would preclude this practice. If they are not testimonial, but merely a record, then they could continue to be admitted without live testimony.

The Massachusetts Supreme Judicial Court looked at this conundrum a couple times, and decided that drug analysis reports were simply records of “primary fact, with no judgment or discretion,” by the chemist who prepared them. So they weren’t testimonial, and there was no Confrontation Clause problem.

Melendez-Diaz was the defendant in the second such case, which affirmed the first one.

It’s a sure bet that Scalia is going to side with the defendant here. He has long been a champion of the Confrontation Clause, and his contributions at oral argument were true to form.

The Massachusetts AG was frankly an embarrassment, making inaccurate assertions (and being corrected by the Court), resting heavily on the lame argument that nobody’s made this particular claim before, and claiming that requiring chemists to testify would be an “undue burden,” even though it’s no such burden to California or New York or any other state where it’s routinely done at trial. Kennedy even coached the AG with arguments that she ought to have been making, and scolded her when she still didn’t make them.

Justices Kennedy, Scalia and Stevens had little patience for the amicus Assistant S.G., whose argument was that machine-generated reports aren’t testimonial. There’s a difference between an automated record and a computerized document created for the purpose of proving an element of a crime at trial. And they’re different from computerized documents reflecting the observations and conclusions of a human being.

Based on how the oral argument went, we’re going to predict yet another win for the defendant.