Milk goes sour.  Fish stink.  Nothing lasts forever, right?  So argues Maryland when MIchael Shatzer invoked his right to counsel during interrogation in 2003.  When another cop decided to interrogate Shatzer in 2006, and obtained a signed waiver, the state contends that his earlier invocation had “expired”, allowing the second cop to do a mulligan.  The Supreme Court will now decide the case. 

From the Baltimore Sun :

He appealed on the basis that his statement should be thrown out because he had never been granted an attorney from his earlier request. In August, the Maryland Court of Appeals agreed, with five of seven judges overturning the guilty ruling. Two judges dissented.

“Once a suspect in custody states that they need help from an attorney, then no questioning should take place until they’re provided with an attorney” even if nearly three years have passed, Davis said. “Mr. Shatzer asked for help and never received it.”

Maryland Attorney General Douglas F. Gansler, who plans to argue the case before the high court, said the issue was “ripe for the court’s consideration.”

“There’s been a lot of discussion about what is the length of time permissible here,” he said. “After the defendant invokes the right to counsel, is there an expiration date or is it a lifelong invocation?”

This particular issue is rather close to my heart, having been engaged in a murder case where, 15 years elapsed since the start of my representation until the prosecution decided to take a second stab at it.  Out of the blue came the phone call asking, “do you still represent this guy?”  As it turned out, they had simultaneously sent an officer to ambush and question my client at that moment.  “Why yes,” I responded. “Yes, I do.”  I hadn’t spoken with my client in years, but as far as I was concerned, he remained my client and I remained his lawyer, and nobody, but nobody, was going to question him.

The issue strikes me as facially quite simple.  Once a defendant has invoked his right to counsel, it remains invoked in perpetuity in the absence of an intervening event that changes the situation.  It has nothing to do with the length of time that passes, which has nothing to do with the subject of the interrogation, as he doesn’t chose when a cop comes to chat.  Is he to send the police little notes annually to advise that his invocation remains in full force and effect, just in case they may want another bite? 

Of course, given the facile elimination of rights coming out of Washington lately, it would hardly be shocking if the argument goes awry.  To hold that an invocation of rights last forever seems so . . . so . . . nice to a defendant.  It must be wrong.  It’s no stretch to imagine a decision stating, “Clearly, an invocation of rights cannot last forever and must, at some point, give way to the overarching need of law enforcement to protect the children by testing again whether the subject of an interrogation is willing to answer questions.”  Doesn’t that sound sufficiently judicious? 

But why shouldn’t an invocation of rights last forever?  At the risk of beating a dead horse, the government has no “right” to interrogate individuals.  Rather, the government has authority to do so, subject ot the limitations of the Constitution.  Not a single amendment in the Bill of Rights comes with an expiration date.  A right, once invoked, is a right now, three years from now and thirty years from now.  That police decide to revisit an investigation some day in the future provides no reason to assume that an invocation of rights has waned with the passage of time. 

More to the point, even if the court takes the position that it seems wrong that an invocation of rights lasts forever, what is the conceptual ledge to distinguish a fresh invocation from a stale one?  One year?  Five years?  Why?  What magic happens over what period of time that provides a rational basis to say that a valid invocation yesterday is stale today? 

What I fear most is the potential use of the bogeyman, the “new professionalism” by my fav justice, Nino Scalia.  This is the argument that Miranda is an anachronism, based on the old flat-foot cop image that, per Scalia, has since been replaced with our “new professional” police who would never beat confessions out of suspects.   Clearly, the bad old cops have been replaced by the bad professional new cops.  The argument could then be extended to allow police to “merely make inquiry” of the suspect who previously invoked his right to counsel, to just “find out” if he still feels that way.  I could see this happening very easily.

Of course, the “new professionalism” argument is certainly true in one respect.  Our “new professional” cops are far more sophisticated in the psychological pressures and tricks to obtain statements and confessions than they ever were when their only means of persuasion was a rubber hose.  More effective and nary a bruise.  Now that’s professionalism.

And as long as we’re talking about the invocation of the right to counsel, I would be remiss if I ignored this opportunity to remind every reader that the reason this issue is so critical is that there is nothing one can do that will better serve your interests upon interrogation by police  than to heed the warnings of Miranda:  State clearly and without equivocation that you do NOT want to answer questions and that you DO want to speak with an attorney.  Then stop talking.  In a rational world, this will serve you well for the rest of your life.