As Kent noted earlier today, the U.S. Supreme Court heard oral arguments in Maryland v. Shatzer first thing this morning. The transcript is available here. Today's arguments over the Edwards' rule - that police must cannot initiate questioning of a custodial suspect once he requests an attorney - provide an interesting discussion of just how far Edwards' rule must reach. The arguments also provided some interesting debate over what exactly Miranda was meant to protect.
Dan Gansler, the Maryland Attorney General, had the privilege of being the first to argue as the Supreme Court officially began the October 2009 term. [A previously scheduled original jurisdiction case was postponed. See BLT.] Gansler's argument focused on the State's point that the Court should adopt a rule that a "break in custody from custodial interrogation" should be sufficient to satisfy the Fifth Amendment privilege against self-incrimination for Edwards purposes. For a prisoner in state prison for another crime, such as Shatzer, return to the general population would be a sufficient break.
Justices Kennedy and Ginsburg appeared worried that a mere return to general prison population would not sufficiently protect a prisoner's Fifth Amendment privilege. Justice Kennedy worried that the potential for coercion or pressure was "very substantial in the prison." AG Gansler believed this was not the case, and argued that once a prisoner left custodial interrogation and went back into general population, he was going back to where he lived - which is similar to going home. Justice Ginsburg did not appear to buy this argument. She countered that when a suspect leaves custody he may go home and contact an attorney, but that option does not necessarily exist for a prisoner. The Justices then began questioning Gansler as to whether police had to provide an attorney for a prisoner once he said, "I won't talk to you without a lawyer." This point occupied much of AG Gansler's argument, and at one point he stated, "There is no, as far as I can tell from the jurisprudence of this Court's holdings, there is no obligation for the police to actually go out, nor would I suggest that you actually want to have that rule, to go out and actually ascertain, get a lawyer."
US Assistant to the Solicitor General Toby Heytens then took the podium to argue for a break in custody rule to Edwards. He argued that Edwards is a prophylactic rule to prevent police badgering a suspect into confessing, and in this case, there was no "colorable argument" that Shatzer was badgered into confessing. Justice Breyer quickly asked Heytens to switch gears and to address whether the civil rule, that a represented client cannot be approached by opposing counsel, also applied in this situation. Heytens quickly pointed out that Justice Breyer's question addressed a different issue altogether. Edwards and Miranda are about the Fifth Amendment privilege against self-incrimination in a pre-trial situation, they do not address the Sixth Amendment right to counsel at trial. This confusion appeared to continue for much of the oral argument, particularly when Shatzer's attorney, Celia Davis began her arguments before the justices.
Ms. Davis argued that an exception to the rule of Edwards would "introduce[] uncertainty into the determinations of what constitutes custody and what length of time might be adequate to excuse the protection." She advocated that Edwards' protection should endure indefinitely, even if a suspect asked for an attorney during a 1999 joyriding investigation in Maryland, and was arrested in 2009 for murder charges in Montana. Under the defense's proposed rule, a police officer could not approach a suspect until he was certain that the suspect had never told police that he wanted to talk to an attorney. It would not matter if the police were investigating an entirely separate crime. This left Justice Alito wondering why the risk of badgering was greater when a suspect was questioned for a different offense. Ms. Davis argued that the risk was the same, and that anytime a suspect requested an attorney the police should wait until counsel is present. Justice Scalia then commented, "Well, you are being very unrealistic. Have you ever known defense counsel who says, "Oh, yes," to submit to the interrogation? I mean -- you know, once they are lawyered up, they are not going to talk. You know that." But this did not stop Ms. Davis. She continued to argue that once Shatzer said he wanted to talk to an attorney he had clearly invoked his right to counsel, and the police should have provided him with counsel. So, once a prisoner said "I won't speak to you without an attorney," his privilege against self-incrimination endured indefinitely. This appeared to bother Justice Sotomayor, who asked Ms. Davis, "So there is no termination point, really?" Ms. Davis responded that the termination point could not be confined to time, Edwards' protection could only cease if the prisoner contacted police and told them he was willing to talk.
In the background of the whole discussion is the artificiality of the Edwards rule itself. Justice Ginsburg pointed this out when she asked, "Why wouldn't [Shatzer] think, I invoked my right to remain silent without a lawyer two years and seven months ago, I will do it again; they will have to stop questioning? Why wouldn't that be the most likely mindset of the defendant? He knew that it worked the first time. Why should it not work the second time?" And that's just it. There is no reason to believe that Shatzer felt the police were pestering him simply because they approached him two years and seven months after their first meeting with him.
Justices Kennedy and Ginsburg appeared worried that a mere return to general prison population would not sufficiently protect a prisoner's Fifth Amendment privilege. Justice Kennedy worried that the potential for coercion or pressure was "very substantial in the prison." AG Gansler believed this was not the case, and argued that once a prisoner left custodial interrogation and went back into general population, he was going back to where he lived - which is similar to going home. Justice Ginsburg did not appear to buy this argument. She countered that when a suspect leaves custody he may go home and contact an attorney, but that option does not necessarily exist for a prisoner. The Justices then began questioning Gansler as to whether police had to provide an attorney for a prisoner once he said, "I won't talk to you without a lawyer." This point occupied much of AG Gansler's argument, and at one point he stated, "There is no, as far as I can tell from the jurisprudence of this Court's holdings, there is no obligation for the police to actually go out, nor would I suggest that you actually want to have that rule, to go out and actually ascertain, get a lawyer."
US Assistant to the Solicitor General Toby Heytens then took the podium to argue for a break in custody rule to Edwards. He argued that Edwards is a prophylactic rule to prevent police badgering a suspect into confessing, and in this case, there was no "colorable argument" that Shatzer was badgered into confessing. Justice Breyer quickly asked Heytens to switch gears and to address whether the civil rule, that a represented client cannot be approached by opposing counsel, also applied in this situation. Heytens quickly pointed out that Justice Breyer's question addressed a different issue altogether. Edwards and Miranda are about the Fifth Amendment privilege against self-incrimination in a pre-trial situation, they do not address the Sixth Amendment right to counsel at trial. This confusion appeared to continue for much of the oral argument, particularly when Shatzer's attorney, Celia Davis began her arguments before the justices.
Ms. Davis argued that an exception to the rule of Edwards would "introduce[] uncertainty into the determinations of what constitutes custody and what length of time might be adequate to excuse the protection." She advocated that Edwards' protection should endure indefinitely, even if a suspect asked for an attorney during a 1999 joyriding investigation in Maryland, and was arrested in 2009 for murder charges in Montana. Under the defense's proposed rule, a police officer could not approach a suspect until he was certain that the suspect had never told police that he wanted to talk to an attorney. It would not matter if the police were investigating an entirely separate crime. This left Justice Alito wondering why the risk of badgering was greater when a suspect was questioned for a different offense. Ms. Davis argued that the risk was the same, and that anytime a suspect requested an attorney the police should wait until counsel is present. Justice Scalia then commented, "Well, you are being very unrealistic. Have you ever known defense counsel who says, "Oh, yes," to submit to the interrogation? I mean -- you know, once they are lawyered up, they are not going to talk. You know that." But this did not stop Ms. Davis. She continued to argue that once Shatzer said he wanted to talk to an attorney he had clearly invoked his right to counsel, and the police should have provided him with counsel. So, once a prisoner said "I won't speak to you without an attorney," his privilege against self-incrimination endured indefinitely. This appeared to bother Justice Sotomayor, who asked Ms. Davis, "So there is no termination point, really?" Ms. Davis responded that the termination point could not be confined to time, Edwards' protection could only cease if the prisoner contacted police and told them he was willing to talk.
In the background of the whole discussion is the artificiality of the Edwards rule itself. Justice Ginsburg pointed this out when she asked, "Why wouldn't [Shatzer] think, I invoked my right to remain silent without a lawyer two years and seven months ago, I will do it again; they will have to stop questioning? Why wouldn't that be the most likely mindset of the defendant? He knew that it worked the first time. Why should it not work the second time?" And that's just it. There is no reason to believe that Shatzer felt the police were pestering him simply because they approached him two years and seven months after their first meeting with him.
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