Friday, February 26, 2010

SCOTUS: Police can still try to interrogate you after you request a lawyer if they wait 14 days

I should at least mention an important ruling by the US Supreme Court this week that moved the goalposts significantly for defendants regarding police interrogations and the right to counsel. Via SCOTUSBlog,
The Court’s decision [Wednesday] in Maryland v. Shatzer – holding that a suspect’s request for counsel is only valid for fourteen days if the suspect is released from custody during that time – dominates today’s news coverage of the Court. Jesse J. Holland of the Associated Press, Adam Liptak of the New York Times, James Vicini of Reuters, Debra Cassens Weiss of the ABA Journal, Jurist, LA Times, and all provide coverage of the case, as does NPR’s Nina Totenberg, whose story on the decision includes analysis by a law professor who describes the fourteen-day rule as “totally arbitrary” but ultimately a “good” one.
See also SCOTUSBlog's opinion recap. At the Volokh Conspiracy, Orin Kerr points out the obvious - that the US Constitution includes no "14-day rule," a number that was pulled out of thin air - and that the majority opinion by Justice Scalia on its face amounts to legislating from the bench. Kerr then gives an excellent, brief rendition of Scalia's 20 years of history on this subject that explains his enthusiasm for such out-of-character judicial dabbling.

I'm not a lawyer so maybe I'm missing something, but I can't help but wonder how this ruling will interact with the Court's Rothgery decision, where SCOTUS said a defendant's "initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel." So if a defendant is assigned counsel after that initial appearance but is then released on bail, does that mean two weeks later police can now take another run at the defendant and seek a waiver in order to interrogate them outside the presence of their lawyer? That's how Scalia's opinion reads to me, but such an interpretation seems open to abuse.


doran said...

This is another example of the continual gnawing away at the Bill of Rights by authoritarian, retro-Monarchist jurists. They never let up, they are like termites in the walls and foundations of your homes. They will take every opportunity to move America back to a pre-Revolutionary time, when the King's men had almost total arbitrary authority over citizens.

Another good example of judicial amendment of the Constitution is a recent decision out of the federal 9th Cir.Ct.App. in United States v. Lemus. Here is what the dissenting judge had to say:

"This is an extraordinary case: Our court approves, without blinking, a police sweep of a person’s home without a warrant, without probable cause, without reasonable suspicion and without exigency—in other words, with nothing at all to support the entry except the curiosity police always have about what they might find if they go rummaging around a suspect’s home. Once inside, the police managed to turn up a gun “in plain view”—stuck between two cushions of the living room couch—and we reward them by upholding the search.

"Did I mention that this was an entry into somebody’s home, the place where the protections of the Fourth Amendment are supposedly at their zenith?...

"The opinion misapplies Supreme Court precedent, conflicts with our own case law and is contrary to the great weight of authority in the other circuits. It is also the only case I know of, in any jurisdiction covered by the Fourth Amendment, where invasion of the home has been approved based on no showing whatsoever. Nada. Gar nichts. Rien du tout. Bupkes.

"Whatever may have been left of the Fourth Amendment after [United States v. Black] is now gone. The evisceration of this crucial constitutional protector of the sanctity and privacy of what Americans consider their castles is pretty much complete. Welcome to the fish bowl."

There is a report of this case at

Modern "conservatives," of course, will applaud this kind of judicial activism.

Anonymous said...

You mean like Miranda & Edwards being pulled out of thin air? Give me a break.

Jerri Lynn Ward said...


If this is going to be defined as a "conservative" opinion, then I'm finding another term to apply to myself. I don't consider it to be conservative at all.

It is not what I'd call conservative because the decision is blind to the fact that there are no angels among men, especially in government. The decision defies the basic presupposition behind our form of government, and the reason for decentralization and checks and balances.That's being dismantled by men in all branches of government. I'd compare the "conservatives" behind this as more akin to Jacobins than Monarchists.

I assert that this opinion, and the one mentioned by Doran, are more than acts of judicial activism. I believe that they are revolutionary acts against our Constitutional form of government. They are what a true conservative, Garet Garrett, described as "revolution within the form."

doran said...

Jerri, I am in full agreement with you. That is why I put "conservatives" in quotation marks and modified it with "modern." The judges who make these counter-revolutionary decisions, and the people who support them, are not conservatives at all.

Anonymous said...

Equally troubling is the vote. Seven signed the opinion. Thomas & Stevens concurred in the judgment, each writing separately to criticize aspects of the ruling whose result they ultimately approved.

Saying "I want a lawyer" once, and then two and one-half years later, expecting that statement to prevent police from questioning him, after reading his Miranda rights again, strains the bounds of what is reasonable. Here, police had learned new information on the crime, had reopened the case, and wanted to question the suspect again. The suspect could have said, again, "I want a lawyer." Instead, he waived his Miranda rights when read to him again. After he said to the police "I didn't force him," to the question of whether he raped his three-year-old son, he asked for a lawyer again, and police ended their questioning. It was enough to charge him and get a conviction.

I don't believe it makes sense to prevent police from solving crimes by requiring them to never go back for another attempt at questioning the suspect.

On the other hand, it violates the point of the right to counsel to allow police to continuously harass a suspect, wearing him down until he waives his right to counsel until he talks. It's too open for abuse because it allows police to find creative ways to harass a suspect.

I recently defended a fellow on appeal who was lied to by police when asked to sign a document he was told meant only that he understood his rights. After he signed the document, he was told he had just signed a waiver of his rights. Later in the interview, he said, "Maybe I should talk to a lawyer." When the cop asked if he wanted a lawyer, the defendant just kept describing how he fired the gun, leading to the death of the victim. The court pointed out that he had asked, and the police offered to stop, and he kept going, so that even if the police were wrong to lie to him ab initio, his actions by continuing to talk made his statement voluntary.

I disagree, because I think the lie at the beginning makes the suspect think he's out of luck and now needs to talk. But I also understand that a balance must be struck. Otherwise, we practically make police close their ears and muzzle suspects who want to talk. There's a difference between protecting rights and protecting suspects from themselves.

But fourteen days? Where did that come from? Utterly bizarre. I wonder how Scalia explains where he found the words "fourteen days" in the drafters' choice of words or original intent?

Anonymous said...

Never ever talk to a police officer, keep your mouth shut.

There's no reason to talk to a cop, unless to give your name, d.o.b and address and all this is on your drivers license. For your protection always keep your mouth shut!

Anonymous said...

"We have frequently emphasized that the Edwards rule is not a constitutional mandate, but judicially prescribed prophylaxis."

And this is what you get when you make it up as you go along. No one should be crying about 14 days.

TDCJEX said...

So now every two weeks cops will relentlessly try to interrogate someone. The person being interrogated will repeatedly assert their right to counsel every two ? How does this solve anything? How long can cops do this? What happens if a person cannot afford an attorney? Do we just arrest everyone that is a suspect person of interest or simply unwilling to talk to the police without presence of counsel? Where will we put them all? Will we further bog down our courts with people who could not for whatever reason fire, an attorney?

How does the cops focusing on one person harassing them or detaining them every two weeks solve anything . This ruling wil make for even mor4 sloppyand lazy cop work and more ligation in the end more expensive .

This ruling seems to make no sense whatsoever. Why 14 days? That is totally arbitrary.

The people who call themselves conservative are not . Most political scientists and historians call them fascists.

A few of the characteristics of fascism

. Disdain for
the Recognition of Human Rights -
Because of fear of enemies and the need for security, the people in fascist regimes are persuaded that human rights can be ignored in certain cases because of "need." The people tend to look the other way or even approve of torture, summary executions, assassinations, long incarcerations of prisoners, etc.

Identification of Enemies/Scapegoats
as a Unifying Cause -
The people are rallied into a unifying patriotic frenzy over the need to eliminate a perceived common threat or foe: racial , ethnic or religious minorities; liberals; communists; socialists, terrorists, etc.

. Obsession with Crime and Punishment -
Under fascist regimes, the police are given almost limitless power to enforce laws. The people are often willing to overlook police abuses and even forego civil liberties in the name of patriotism. There is often a national police force with virtually unlimited power in fascist nations.

Rampant Cronyism and Corruption -
Fascist regimes almost always are governed by groups of friends and associates who appoint each other to government positions and use governmental power and authority to protect their friends from accountability. It is not uncommon in fascist regimes for national resources and even treasures to be appropriated or even outright stolen by government leaders.

Disdain for Intellectuals and the Arts -
Fascist nations tend to promote and tolerate open hostility to higher education, and academia. It is not uncommon for professors and other academics to be censored or even arrested. Free expression in the arts and letters is openly attacked.

Corporate Power is Protected -
The industrial and business aristocracy of a fascist nation often are the ones who put the government leaders into power, creating a mutually beneficial business/government relationship and power elite.


Anonymous said...

It is becomming more and more difficult for anyone to "keep their mouth shut". This decision promotes the plea bargain form of justice.

If the courts had more money to conduct trials including the set up of juries, pay checks for judges and court reporters, etc. then the relentless need for plea deals would be reduced.

As it is, Police and the entire system are under a lot of pressure to get a confession. Now your right to remain silent only lasts for 14 days if you are not in jail.

Indeed the rights are being slowly taken away and there doesn't seem much that can be done about it.

Just remember to keep your mouth shut. Then understand that once you go to trial, you are indeed guilty of something far worse that you might or might not have done. Of course you can appeal, but the cards are stacked against you on appeal because, after all, you were found guilty in court!

Just remember to keep your mouth shut and see how far that gets you. The whole system is a disappointment. Too bad they don't teach that in school.

Adrenolize said...

Wow, some police hating people in here! I must say, if you have a problem officer, you should deal with the officer. Never legislate to deal with the officer.

Truth be told, most detectives and investigators have too high of a case load and won't be able to set a calendar reminder to pay a visit to everyone every two weeks. Lets be reasonable here.

What I don't like about this, is that it is yet another example of the Federal Government overstepping its mandate. The reason why we have a State and local government is so that a populace can fine tune the laws for their wants/ needs. How is this served when Washington is aiming to literally dictate every aspect of our lives?

Texas should cite the 10th Amendment and move on. Otherwise, why do we pay all these taxes to local government that is trumped in every way by a nanny state federal government?

Unknown said...

Just to answer your legal question - there are two different protections from police interrogation that emanate from either the 5th amendment or the 6th amendment

In Rothgery, he was charged with a crime, and thus his 6th amendment right against police interrogation kicked in.

In this case, Shatzer had not yet been charged with a crime (although he was in prison for a different crime). When he invoked his right to a lawyer, he was invoking his 5th amendment right that protects against police interrogation. It is only the 5th amendment right that now has the 14 day limit.

Now I am testing my memory: the 6th Amendment right has a clearer end date. Until your trial is over, you have your 6th amendment right protecting you from interrogation (although now you have to invoke it due to Montejo, which was decided recently). When you've been convicted, I believe, you no longer have this 6th amendment right (but you also do not need to be in custody to use it). And at any time, it only protects you from interrogation on the crime you have been charged with.

Hopefully this is understandable. There are tons of nuances of course - on when is it considered invoked, what the protection really gives you, and ways for the accused to re-initiate interrogation on his own, among other things. It is definitely discouraging that rulings that are fundamental to our law enforcement system are so incredibly confusing.

Gritsforbreakfast said...

Adrenolize writes, "most detectives and investigators have too high of a case load and won't be able to set a calendar reminder to pay a visit to everyone every two weeks."

That's certainly true, but when an officer chooses to go out of their way, now they can, and on high-profile cases or those where an officer has an underlying agenda (which occasionally happens), they will. It won't be "everyone," but neither will it be "never."

I agree the federalism issues are troubling - that sort of micromanaging seems way out of SCOTUS' purview. However, I've also seen instances where problem officers' behavior revealed systemic flaws that required legislative fixes, so I disagree with your statement "Never legislate to deal with the officer." Sometimes that's in fact quite necessary. E.g., Tom Coleman's case from the Tulia episode led to new laws regulating gypsy cops.

Aaron, that makes some sense, but I'll have to take your word for it because I don't completely understand the 5th/6th hairsplitting regarding the lawyer's role. I should go back and read the dissent, concurrences, etc., to get a better idea, perhaps. I'm afraid this was a bit of a knock-off reaction post and for sure I haven't thoroughly analyzed the ruling. :)

Thomas R. Griffith said...

Since we are in the buying mood, I'm selling nose leads dirt cheap. If we are going to just blogaboutit and move on to the next Post, then why not allow yourself to be lead by the nose in style?

The book, "14 Days" and the movie,
"14 F-----G Days" will follow. Also working on "Bill of Rights" ass-wipe. Place your orders.

For those not willing to be lead by the nose or brave enough to wipe their hinneys with toilet paper with Scalia's face, consider the alternative. Stand up for your rights & just don't blogaboutit.

I'll ask the question & let's see what happens. "What can we do to put a stop to this legislating from the bench?"

Anonymous said...

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