Patterico's Pontifications

10/5/2009

First Monday in October

Filed under: Crime,Law — DRJ @ 2:55 pm



[Guest post by DRJ]

What happens on the first Monday in October? A new Supreme Court term has begun, and this term has an interesting criminal law case:

“Michael Shatzer was imprisoned at the Maryland Correctional Institution in Hagerstown for child sexual abuse in 2003 when police questioned him about allegations that he sexually abused his 3-year-old young son. When Shatzer refused to talk to a police officer and asked for a lawyer, the questioning ended and the case was dropped.

In 2006, Shatzer’s son was old enough to offer details. When a different police officer approached Shatzer in prison about the allegations two years and seven months later, Shatzer waived his Miranda rights, made incriminating statements, failed a polygraph test and was eventually convicted.

Lower courts threw out his confession because he asked for an attorney when he was first questioned in 2003.

Justice Samuel Alito asked Shatzer’s lawyer, public defender Celia Davis, if her interpretation of the law meant police can’t talk to a suspect who asked for a lawyer when being questioned about joyriding in 1999, but is arrested for murder in 2009.

“Yes, it does,” she replied.

“You don’t think that’s a ridiculous application of the rule?” Alito said.

Davis said the request for a lawyer should apply even if 40 years later the person is a suspect in a civil rights violation that related to the murder.

“You’re saying for 40 years, he’s immunized from being approached by police?” said Sotomayor, who was sitting in on her first regular argument as a Supreme Court justice.”

Sotomayor reportedly “peppered the arguing lawyers with as many questions as her eight more experienced colleagues,” which either means she asked a similar number of questions as each individual Justice … or that she asked as many questions as all 8 put together.

More importantly, the Justices discussed possible solutions to this problem that can be found at the link. It’s an important issue for the police, prosecutors, attorneys, and citizens.

— DRJ

15 Responses to “First Monday in October”

  1. The public defender’s interpretation is unworkable even if it made sense: unless an organizational miracle happens, only the defendant would have knowledge of his Miranda status. And he might lie. But practically, the police officers could _never_ question someone without a lawyer, since the defendant clearly cannot even be _asked_ to waive his rights forever after once refusing to. The officers would have to always wait for an attorney.

    Which is not only absurd, but impossible. Not to mention insane.

    Kevin Murphy (805c5b)

  2. Do I have this right? Tonight, I go down to my local police station. I ask for a lawyer. For the rest of my life, they have no ability to question me about anything at all.

    I can say anything I want to any police officer, and it will all be thrown out because I once asked for a lawyer.

    I know the Constitution isn’t a suicide pact. Apparently, it’s a short bus.

    JayC (7c1245)

  3. jay, you don’t even have to ask for an attorney, ever. The police have no option but to assume you did. Under this rule, the police cannot question ANYONE, lest they have their Miranda status wrong and have their case poisoned.

    Kevin Murphy (805c5b)

  4. Justices Alito and Sotomayor agreeing that a line of reasoning is absurd? Well, that’s better news than I thought I’d see.

    MD in Philly (d4f9fa)

  5. Patterico noted last May that Sotomayor might be okay on criminal law issues.

    DRJ (b008f8)

  6. However, when being questioned about the same criminal act, regardless of the time that has elapsed, the invoked council should still hold.

    We aren’t talking about 2 different crimes, but the same exact crime.

    Scott Jacobs (218307)

  7. So even though it’s been over two years, you don’t think an adult can ever make an informed waiver?

    DRJ (b008f8)

  8. I think he or she can make an informed waiver, but in this particular case, there was none. He was questioned, asked for a lawyer, and that stands until some later time when — if asked again about the same topic — they can ask if he’s willing to waive, and he can say yes or no. There should be some limit on the number of times a day he can be asked; I suggest once per day per state of confinement.

    htom (412a17)

  9. As noted, the hypotheticals are unlike the case. Here the questioning was about the same crime, not some other unrelated crime.

    OTOH, the police should not have to keep a record of who has ever invoked the right to counsel. I think the fear is of badgering or coercing the suspect until he relents and waives his rights. But here the gap was two years and change, so that is hardly an issue. I like the suggestion of once a day, if only because it is an easy rule of thumb to apply.

    Bored Lawyer (f7318d)

  10. Justices Alito and Sotomayor agreeing that a line of reasoning is absurd? Well, that’s better news than I thought I’d see

    On criminal matters, at least, Sotmayor is not too bad. Former prosecutor and all.

    Bored Lawyer (f7318d)

  11. htom:

    He was questioned, asked for a lawyer, and that stands until some later time when — if asked again about the same topic — they can ask if he’s willing to waive, and he can say yes or no.

    It’s my understanding from the article (quoted above) that the defendant was given his Miranda warnings and waived his rights in the interview 2+ years later. Thus, the lower court opinions must have held that the police can’t even ask a defendant to waive his rights if he requested counsel at any prior time in connection with the same facts.

    DRJ (b008f8)

  12. Actually, the issue is more limited. The question is limited to instances where the defendant was interviewed in custody and remains in custody.

    This is a bit different than what the post suggests; the case does not speak to situations where police interview someone, right to counsel is invoked, then years later the police interview the same person on a different crime. It involves interviewing someone in jail, then interviewing them later on the same crime in the same jail.

    In these limited circumstances, I think perpetual makes sense. It’s not like the jailers can’t keep track of the guy or whether counsel needs to be present. Most courts have said the invocation ends when you release the defendant, and that is a good bright line rule.

    Cyrus Sanai (3b1f29)

  13. However, when being questioned about the same criminal act, regardless of the time that has elapsed, the invoked council should still hold.

    What if one was a juvie who could not be questioned without parents present, and evidence pointed to better suspects anyway, so the line of questioning was abandoned? One is still a POI, but the evidence is too thin to bring one in for a formal interrogation.

    Later evidence comes to light, but (alas) the parents have passed to the great beyond.

    In these limited circumstances, I think perpetual makes sense. Cyrus Sanai

    Oh. I see.

    Wacky thought experiment? Perhaps. I’d have thought so, until we get to this:

    Justice Samuel Alito asked Shatzer’s lawyer, public defender Celia Davis, if her interpretation of the law meant police can’t talk to a suspect who asked for a lawyer when being questioned about joyriding in 1999, but is arrested for murder in 2009.

    That’s a pretty damn big obstacle to overcome. Seeing as Defender Davis made no distinctions between one crime and another, contra Mr. Jacobs’ assurance that “We aren’t talking about 2 different crimes, but the same exact crime.” Love you dearly Scott, but I think you are assuming a narrow reading that the 9th Circuit would not (despite SCOTUS instructions, wouldn’t be the first time) necessarily grant you.

    Uncle Pinky (e4d7c2)

  14. This is a bit different than what the post suggests; the case does not speak to situations where police interview someone, right to counsel is invoked, then years later the police interview the same person on a different crime. It involves interviewing someone in jail, then interviewing them later on the same crime in the same jail.

    Counsel Davis does not seem to find the limitations, that you have (very cogently) put forth, in any way … limiting.

    Uncle Pinky (e4d7c2)

  15. However, when being questioned about the same criminal act, regardless of the time that has elapsed, the invoked council should still hold

    That, too, is unworkable, as it requires a miracle in police record-keeping. Each and every investigator would have to have certain knowledge that the suspect had never invoked his right to counsel. Since this is unlikely to impossible, they would probably have to assume that he had.

    The only rule should be for the duration of a given detention. The suspect has the minimal burden of restating his desire not to be questioned at a later time.

    Kevin Murphy (3c3db0)


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