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Monday, March 01, 2010

Courts - "Debate brewing over Supreme Court change to Miranda Rights"; and yet another Miranda case awaiting a decision

That is the headline to this story today by Troy Kehoe of WSBT TV, Mishawaka. The case he is writing about is Maryland v. Shatzer, decided last week by the SCOTUS (see this ILB entry). From today's lengthy story:

For suspects, since 1981, it's meant that investigators can't continue questioning in a case once a person-of-interest has invoked their Miranda Right to an attorney. Without that attorney's consent, police can't legally interrogate the suspect any further.

The ruling was aimed at preventing police from coercing a person into waiving their rights to a lawyer by keeping them in custody. But, many officers said it's only led to frustrating roadblocks in important cases.

"It's been a fundamental tenant of police work that once somebody has invoked their Miranda Rights, they're unapproachable again except through their attorney. And when you go through their attorney, that's almost an automatic no," said South Bend Police Captain Phil Trent.

"After that point, it was expected that we could not approach that individual regarding the case again. So, a lot of cases just died in the water right there when we couldn't approach our suspect," Trent continued.

But, a recent case in Maryland involving a child molester who had asked for a lawyer nearly three years before he confessed challenged that ruling.

Michael Shatzer confessed in 2006 to abusing his own son. He had asked police for a lawyer when he was first questioned while already imprisoned on a child sex abuse conviction in 2003 when police questioned him about allegations he also sexually abused his own 3-year-old son.

Shatzer refused to talk and asked for a lawyer, and the questioning ended.

Then, in 2006, when Shatzer's son was old enough to offer details, a different police officer approached Shatzer in prison. He waived his Miranda rights, made incriminating statements and was eventually convicted.

But, Maryland's Court of Appeals threw out his confession, saying the passage of time did not make his first request for a lawyer less valid. The lower court judges also said that Shatzer's release from police interrogation back into the general prison population was not a sufficient break in custody to invalidate his lawyer request.

Wednesday, Justice Antonin Scalia, writing for the majority, said enough time had passed between the first and second interrogations for Shatzer, even though he was being held in prison.

"The duration of the break in custody here (2 1/2 years) was plainly enough," Scalia wrote.

"In fact, the court decided--not just two years--but two weeks was enough," Trent said. "Now, 14 days after the first approach — even if we're turned down — as long as that person's had 14 days of non-custodial, clear thinking, we can re-approach that person without their attorney."

Trent called the ruling a major surprise that could make a major impact on law enforcement across the country.

"I'm personally shocked at this," he said. "It changes a rule I've been dealing with for 23 years, and it's a major, major modification."

But, perhaps the biggest modification will come on older, "cold cases." Officers can now bring in witnesses or suspects that were previously considered untouchable to question them a second time.

"It certainly allows us the ability to keep a case open and have a little bit more hope," Trent said.

But, some are concerned the new ruling also opens the door to potential abuse of power.

"I am concerned," said South Bend criminal defense attorney Andre Gammage, a partner in the firm Berger & Gammage. "I see this as an opportunity for a person's will to be eroded if police approach, and approach, and approach every [two weeks]."

Police might have "an incentive to badger suspects through repetitive catch-and-release tactics," the National Association of Criminal Defense Lawyers told the Supreme Court.

"A police officer questioning you on day 1 or day 15, it's still an intimidating situation for you. It may be that additional information may be gained by an officer between day 1 and day 15 or sometime down the line. So, he's asking the question again and trying to do his job," Gammage said.

"But, by the same token, that person who's being questioned, I believe, just by the very nature of being questioned, feels a bit intimidated — especially when it's for the second or third time," he continued.

Gammage, and other criminal defense attorneys are worried repeated questioning could wear down a suspect's will until they do something their lawyer would advise against.

"There's a real danger in the thinking — 'if I tell them what they want to know, will they stop bothering me? They may not believe that they're incriminating themselves, and say look: if I just tell them this, or tell them something, will they leave me alone? Well, that something just might be something that would land them in jail," Gammage said.

Some lawyers have even referred to the change as a "merry-go-round" that will allow police to "legally" badger suspects. It's enough to cause Gammage to add a new piece of advice to all of his clients.

"Remember, they may now approach you again. Your answer is still: I want to talk to my lawyer. You need to invoke that again," he said.

Re the case heard today, Berghuis v. Thompkins (08-1470) (see SCOTUSblog entry here), Jesse J. Holland of the AP has just released a long story headed "Court weighs if silence alone can invoke Miranda." Some quotes:
Police told Van Chester Thompkins he had a right to remain silent, and so he did.

But his silence meant he never officially told officers he wasn't going to talk, and so they kept interrogating him. A couple of hours later, Thompkins implicated himself in a murder. * * *

This case is another example of the high court's recent struggle to clearly define Miranda rights, which have been litigated since they first came into being in 1966. The courts require police to tell suspects they have the right to remain silent and the right to have a lawyer represent them, even if they can't afford one.

Thompkins was arrested for murder in 2001 and interrogated by police for three hours. At the beginning, Thompkins was read his Miranda rights and said he understood.

The officers in the room said Thompkins said little during the interrogation, occasionally answering "yes," "no," "I don't know," nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for "shooting that boy down," Thompkins said, "Yes."

He was convicted, but on appeal he wanted that statement thrown out because he said he invoked his Miranda rights by being uncommunicative with the interrogating officers.

The Cincinnati-based appeals court agreed and threw out his confession and conviction.

But Michigan Solicitor General Eric Restuccia told the justices that Thompkins waived his right to be silent by answering questions from the police.

After two and a half hours of interrogation, Thompkins answered three questions, said Justice Stephen Breyer: "One, do you believe in God? Yes. Two, do you pray to God? Yes. Three, have you asked God for forgiveness for shooting the boy? Yes.

"OK," Breyer said. "So, where did he waive it?"

"When he answered those questions," Restuccia said.

Posted by Marcia Oddi on March 1, 2010 02:21 PM
Posted to Courts in general