Monday, October 25, 2010

Miranda Decisions: Evidence of Court's Swing to the Right

Several weeks ago, Barry Friedman and Dahlia Lithwick writing for Slate, "Watch as We Make This Law Disappear--How the Roberts Court disguises its Conservatism", explored the idea of a right leaning U.S. Supreme Court majority of Roberts, Alito, Scalia, Thomas and Kennedy. The article suggests that the conservative voting block is smartly picking its battles to move the Court to the right. Friedman and Lithwick use Miranda as but one example of the Court's maneuvering.

Below is an excerpt from the Slate article:

Here's an example. The conservative justices hate Miranda v. Arizona, a case familiar to any American who has ever watched a cop show on TV ("You have the right to remain silent," etc.). The justices' problem is they can't quite overrule the decision. Why not? Because polls show about 80 percent of the country approves of the rule. Even Roberts' predecessor—the very conservative William Rehnquist, a confirmed lifelong Miranda loather—choked in 2003 when he had the chance to get rid of it. Miranda, he wrote, "has become embedded in routine police practice to the point where the warnings have become part of our national culture."

So, what's a conservative justice to do? Whittle and chip away at the rule any way he can, all the while denying that the rule itself is in jeopardy. But to do their whittling without getting caught, the Roberts Court has been brilliant at stacking the deck—choosing to hear only Miranda cases in which what the police did is so sympathetic, or what the suspect did so awful, it's impossible to side with the suspect. Then, while you're rooting against the suspect, they're getting rid of the rule that you thought you liked.

Take last term's Maryland v. Shatzer[, 130 S.Ct. 1213 (2010)]: Shatzer was accused of molesting his 3-year-old son by forcing him to perform fellatio and by masturbating in front of him. (You already hate the guy, right?) When the cops come to question Shatzer, he asks for a lawyer. The way Miranda works is that as soon as a suspect asks for a lawyer, all questioning must end, until he sees a lawyer. But in this case, the police get new evidence and come back and question Shatzer again, and he says something incriminating. Ordinarily his statement would be inadmissible: Miranda was violated. But—and here's where the court's genius at choosing cases shines through—it turns out Shatzer is already in prison for another crime when police question him the first time, and they don't come back to question him again for almost three years. They read him his rights again, and this time he blabs.

Can the Miranda rule possibly prevent police from questioning a suspect three years later? On these crazy facts, basically the entire court—all nine justices, conservatives and liberals alike—disagree with Shatzer's claim. You might say, who cares: Shatzer deserves what he gets and worse. But that's the point: It isn't just Shatzer who gets it. All of us do. Shatzer gets more time, and the rest of us get the magic disappearing Miranda rule. Many experts who follow the court closely on this issue will tell you that Miranda is today a facade. It looks nice from the street, but there is virtually nothing behind it.

The Court used the three year separation between interviews to establish a bright line rule that two weeks between interviews is adequate. Pursuant to Shatzer, law enforcement can return every two weeks to interview a suspect who has previously requested an attorney.

The U.S. Supreme Court also decided two other Miranda cases, Florida v. Powell, 130 S.Ct. 1191 (2010), ambiguous Miranda warnings by law enforcement are sufficient; and Berghuis v. Thompkins, 130 S.Ct. 2250 (2010), a suspect must be specific when invoking Miranda rights.

All three decisions favor law enforcement to the detriment of the accused.

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