Monday, August 24, 2009

The Fourth Circuit, a 3L, and thinking about Miranda

A recent column on was written by Chris Thomas, a third year law student at Brooklyn Law School that raises some interesting points about Miranda warnings. The article's thesis seems to be that alleged criminals should say nothing (something Thomas repeats throughout the article) to the authorities. This claim is not particularly controversial, as people accused of crimes are often tricked into confessing or otherwise incriminating themselves. It is not always easy to remember, especially when one believes they are innocent, but vitally important. There's no argument here that the state justice system is not looking out for the best interests of suspects.

What strikes me as particularly problematic about the column is that Mr. Thomas makes some gross generalizations about a very complex area of law. I know, I know... It's a blog post not a law review article, but the article seems more geared toward eliciting blogger comments than it does about thoughtfully engaging a serious problem. There are no easy answers when discussing the finer points of Mirandizing suspects or even when, how, and if a police officer can continue to talk with a suspect after they assert their right to remain silent and/or to counsel.

Thomas describes a discussion he had with rapper Prodigy, about Prodigy's recent arrest, and proceeds to list a litany of constitutional violations that stem from improper conduct by police officers after Prodigy allegedly (by Mr. Thomas) invoked his write to remain silent. The facts are simply too unclear in prodigy's story to make some of the logical leaps Thomas does.

The problem with Thomas' analysis is that it makes broad assumptions about a factual scenario about which he has little knowledge. It also too broadly asserts these alleged Constitutional violations, which in the light of the somewhat cryptic progression of Maryland v. Blake, 571 F.3d 331, 2009 U.S. App LEXIS 14609 (2009), just does not seem that clear. If anything, or more appropriately if we read Maryland V. Blake plainly, the Fourth Circuit has clearly upheld the legality of certain communications after an invocation of one's right to counsel. And the Supreme Court dismissed the case after certiorari was improperly granted. See Maryland v. Blake, 546 U.S. 72 (2005).

In an earlier case the Supreme Court wrote:

"[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police." Rhode Island v. Innis, 446 U.S. 291, 300-1 (1980) (footnotes omitted).

Applying this test to the facts of Blake (which again are too long to list here, but are linked above), the Fourth Circuit decided that an officer's handing of a piece of piece of paper with a list of the charges and penalties for the accused's alleged conduct and the off-hand comment by the officer,"I bet you want to talk now, huh!" after a suspect invoked his rights, was not violative of the suspects right to counsel, essentially because such communication did not rise to the level of an interrogation. Blake, at 14-19.

I'm not saying that we ought to give law enforcement a free pass or even the benefit of the doubt, but that if we don't slow down and think more clearly about arrests, Miranda rights, etc.; we may come to conclusions that miss the mark. Furthermore we may erode the progress that more thorough criticism has made on the atrocities perpetrated by law enforcement. The facts as Thomas lays them out are not clear cut. We do not know if Prodigy invoked his right to counsel. We do not know what the officer's words were, or the facts surrounding the totality of the communications between the officer and Prodigy. With such an incomplete picture, it is difficult to make thoughtful legal analysis.

The seesawing of protecting a suspects rights and the ability of law enforcement to engage in productive interrogation continues. Thomas argues, "Say Nothing!" This part of the analysis is well placed. As to the analysis of constitutional wrongs, we need a much clearer picture and more thorough analysis given the recent decision of the Fourth Circuit.

-- Nick J. Sciullo

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