“Looking Back” will feature a reprint of an article Jeff previously wrote as a columnist at The Westchester Guardian, covering topics that apply here in CA as well as across the country and not just NY.
Very wisely the Founding Fathers included the 5th Amendment, which prohibits individuals from being compelled to testify against themselves, and the 6th Amendment, which guarantees the Right to Counsel, in the Federal Constitution. The focus is on upholding the rights of citizens from overzealous governments and prominent law enforcement; their problem is just too conscious.
Given the large number of DNA and non-DNA exonerations, it is clear that coercion leads to false confessions that often lead to false beliefs.
The 6th Amendment is tied to the 5th because the right to attorney is part of Miranda’s warning language. There are many rules of criminal procedure associated with both amendments designed to make them meaningful and bring them to life. At the heart of that rule is the “Edwards Rule,” which states that if a suspect requests an attorney, not only must he or she be provided with one, but, to protect the sanctity of the attorney-client relationship, there must be no further interrogation until the suspect has spoken to an attorney.
Allowing interrogation temporarily defeats the purpose of the rules. Once a lawyer has been requested, the police who wish to speak to the suspect must do so in the presence of that attorney.
There are many well-understood judicial reasons for this: A) Police investigations are admittedly somewhat coercive in themselves even without police culpability or coercion; Therefore, asking for a lawyer is tantamount to saying that the person cannot speak and interact with the police freely. B) There are many examples of active, deliberate police coercion, which would be prevented by the presence of a lawyer, thus creating a situation where all exchanges between police and suspects are free and voluntary. As I see it, this condition is also more appropriate to get to the truth. C) For civil rights to have meaning, the person who renounces them must do so “knowingly, voluntarily, and intelligently.” An attorney can fully explain rights and answer any legal questions, thus enabling a meeting of minds. The exclusion gained from someone who doesn’t understand what they’re giving up defeats the purpose and spirit of the rule and is coercion. A person cannot agree on something they cannot understand.
Recently, in the case of Shatzer v. Maryland, the United States Supreme Court, including newly seated Judge Sonia Sotomayor, placed a 14-day limit on our Constitutional rights and, in so doing, set the stage for the kind of coercion and abuse the 5th and 6th Amendments seek to prevent, and surrounding legal cases.
At Shatzer, the subject was already imprisoned for an unrelated offence. The police questioned him in prison about allegations that he had sexually abused his son. He is read his due, and he asks for a lawyer. The police stopped questioning him, but he was never given a lawyer. Two and a half years later, the boy was older and provided further details to the police. Armed with this information, the police visited Shatzer in prison and read out his rights. This time he chose to talk to them, and confessed.
The United States Supreme Court, in a 7-2 decision, recently announced a rule stating that even after a suspect has shown reluctance to speak to them without an attorney, police need not seek a waiver before them. attorney, and may otherwise return to the suspect 14 days later, in the absence of his attorney, to seek the waiver.
Judge Anton Scalia, who wrote the opinion, stated that 14 days is sufficient time for a suspect to remove residual effects of coercion, obtain legal advice from lawyers, and social advice from friends and family. All Judges joined in that opinion except Judges Thomas and Stevens, both of whom agreed with the results but objected to the 14-day rule as being arbitrary.
Obviously, decisions of the United States Supreme Court always have an impact on the widest possible panorama of future cases, including how the High Court itself is likely to decide going forward. When the rights of the accused, no matter how unsympathetic or repugnant, are violated, in a broader sense our rights are all affected. And that caught my attention.
I am concerned about the scenario where the police seek to question a suspect who feels the need to be accompanied by a lawyer before submitting an interrogation. If the police just leave, and come back 14 days later, and continue to do so until someone agrees to speak to them, I believe there is potential for abuse, and legally sanctioned coercion. It would be naive to believe that dialogue might just be “are you now willing to answer our questions?”
Repeat visits, in and of themselves, can be coercive and harassing. We only need to think about how witnesses were treated in the recently reversed DiGuglielmo case where the police repeatedly dragged witnesses to headquarters until they changed their story.
The 14 day rule makes our 5th and 6th Amendment rights less meaningful because the break is only for a limited time. What stops the police from becoming a permanent fixture in someone’s life once someone, for one reason or another, becomes a suspect, regardless of his innocence?
In my opinion, this decision, which encourages unlimited police contact even at 14 day intervals, is a step towards a police state, complete with fear of the authorities.
Many legal experts have voiced their concerns over the implications of this ruling. The National Association of Criminal Defense Lawyers led an amicus brief in support of Shatzer in which they argued that Edwards’ bright-line rules should be kept as is, noting police may have “incentives to prosecute suspects through repeated arrest and release tactics.”
Sidley Austin partner Jeffrey Green, who also assisted the NACDL and other defense attorneys in the High Court argument, added, “At this rate, what’s left [of Miranda] will only be what we see on TV.”
Judge Sotomayor was fine with the introduction of a time limit, asking questions during oral arguments, regarding the police having to get a waiver before a lawyer, otherwise there’s no amount of time for which rights requests are indefinite, saying, “So there’s no point termination, really?”
This case is yet another unfortunate validation of my earlier objection to Sotomayor, given the history of his reign, that he cannot be trusted to uphold the rights of all of us.
“Jeffrey Deskovic, Esq, MA, is an internationally recognized false belief expert and founder of The Jeffrey Deskovic Foundation for Justice, which has acquitted 9 wrongly convicted people and helped pass 3 laws aimed at preventing wrongful convictions. Jeff is a member of the advisory board of It Could Happen To You, which has branches in CA, NY, and PA. He serves on the Global Advisory Council for International Restorative Justice, and is an occasional co-host and co-producer of the show, “360 Degrees of Success.” Jeff was released after 16 years in prison—from ages 17-32—before DNA released him and identified the real culprit. A short documentary about his life is titled “Conviction”, and episode 1 of his story in Virtual Reality is titled, “Once Upon A Time In Peekskill”. Jeff has a Master’s degree from the John Jay College of Criminal Justice, with his thesis written on the causes of false beliefs and the reforms needed to address them, and a law degree from the Elisabeth Haub School of Law at Pace University. Jeff is now a practicing attorney.
