Thursday, July 23, 2015

The Vindicator: Miranda rights of accused ‘ain’t what they used to be’

Matthew T. Mangino
The Youngstown Vindicator
July 13, 2015
In Pennsylvania, requesting an attorney in writing is not enough to ensure an accused’s right to counsel before being questioned. As the landmark U.S. Supreme Court decision in Miranda v. Arizona approaches its 50th anniversary, the protections once afforded those accused of a crime, in the melodious words of Duke Ellington, “ain’t what they used to be.”
The Miranda decision is best known for the warnings that police give suspects before they are interrogated. The warnings have been so famously recited during decades of television crime dramas, “You have the right to remain silent ...”
Since 1966, the year Miranda was decided, the U.S. Supreme Court and some state appellate courts have chipped away at the decision. In 2010, the U.S. Supreme Court ruled, in separate cases, that even ambiguous Miranda warnings by law enforcement are sufficient, but a less than specific invocation of those rights by a suspect is inadequate.
In 2013, the U.S. Supreme Court found that a prosecutor’s mention of a defendant’s silence before he was arrested or given Miranda warnings did not violate the defendant’s Fifth Amendment rights because the defendant did not expressly invoke those rights.
The Pennsylvania Supreme Court has taken shots at Miranda as well. Last year, the court decided two cases that found simply being silent is not enough to exercise your right to remain silent.
The court concluded that a detective’s testimony about a suspect’s silence was permissible because it was employed for the narrow purpose of describing the police investigation and not for implying the defendant’s guilt.
However, a defendant’s right against self-incrimination would be violated if the prosecution used a suspect’s silence as proof of guilt in an argument to the jury.
This term, in a case titled Commonwealth v. Dennis Bland, the Pennsylvania Supreme Court rejected the effectiveness of an anticipatory invocation of the right to counsel, or put another way, a suspect’s written demand for legal counsel before being advised of his rights.
Bland was arrested in Florida in connection with a homicide in Pennsylvania. The day after his arrest, a lawyer faxed Bland a form letter that “reflected a very clear putative” invocation of his right to counsel – a fundamental right provided by the U.S. Supreme Court through Miranda.
Bland signed the form and returned it to his lawyer, who forwarded copies to the Philadelphia Police Department and the Philadelphia District Attorney’s office.
The request for counsel was straightforward and unambiguous. Yet, when he returned to Pennsylvania still in police custody, a Philadelphia detective came to interview him and provided him with Miranda warnings. Bland did not have an attorney present as he explicitly requested. As a result, he waived Miranda and confessed to the murder.
Bland’s attorney argued to the court, “my client wanted an attorney and the detective knew it.” The court agreed and threw out the confession.
The appeal, which ultimately made its way to the state Supreme Court, “centers on the nature of a valid invocation of the Miranda-based right to counsel, specifically, in terms of whether the right must be asserted in close temporal proximity to custodial interrogation or may be effectively invoked remotely from such questioning.”
Pennsylvania Chief Justice Thomas G. Saylor wrote, “[W]e hold that ... an invocation of the Miranda-based right to counsel must be made upon or after actual or imminent commencement of in-custody interrogation.”
In Pennsylvania, it is not enough to take advantage of a constitutional right of which a suspect is aware. A suspect must wait until she is advised of those rights – of which she is already aware – to explicitly declare her intention to invoke those rights.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll,” 2010, was released by McFarland Publishing. You can reach him at and follow him on Twitter @MatthewTMangino.

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