The title of my first post on Maryland v. Shatzer, which will be argued before the Supreme Court this coming Monday, pretty much summed it up: Do Constitutional Rights Have an Expiration Date? But then, that’s just my view, and what else would you expect from a criminal defense lawyer.
Orin Kerr at Volokh Conspiracy thinks the Supremes will take a different view, agreeing with Don Dripps and Yale Kamisar, who lay out their position at CrimProf Blog, where they believe that time, time, time is on the cops’ side. The post provides a thorough jog through the caselaw from Miranda to Edwards v. Arizona and Minnick v. Mississippi.
For anyone unfamiliar with the facts, Shatzer was in prison when he was approached by a cop and immediately invoked his right to counsel. Three years later, with some additional evidence, the case was reopened and Shatzer, still in prison (though a different one) was approached again. This time, after being given warnings, he talked. Oops.
The issue is whether the initial invocation of the right to counsel was still effective 31 months later. The lawprofs think this would make a great exam question, and ask “Can Edwards’s protection possibly last this long?” The lower court said no, but the Maryland Court of Appeals reversed.
Orin Kerr at Volokh Conspiracy thinks the Supremes will take a different view, agreeing with Don Dripps and Yale Kamisar, who lay out their position at CrimProf Blog, where they believe that time, time, time is on the cops’ side. The post provides a thorough jog through the caselaw from Miranda to Edwards v. Arizona and Minnick v. Mississippi.
For anyone unfamiliar with the facts, Shatzer was in prison when he was approached by a cop and immediately invoked his right to counsel. Three years later, with some additional evidence, the case was reopened and Shatzer, still in prison (though a different one) was approached again. This time, after being given warnings, he talked. Oops.
The issue is whether the initial invocation of the right to counsel was still effective 31 months later. The lawprofs think this would make a great exam question, and ask “Can Edwards’s protection possibly last this long?” The lower court said no, but the Maryland Court of Appeals reversed.
It was unable to find any case that relied “solely upon the passage of time factor standing alone” (emphasis in the original) to conclude that the Edwards protection had expired. Nor was the court impressed by the argument that a “break in custody” occurred when Shatzer was released back into the general prison population in between the two meetings with the police.
The lawprofs are unimpressed with this reasoning.
Just as Dripps and Kamisar argue that the Maryland Court of Appeals placed undue emphasis on the “break in custody” exception, it strikes me that they have placed undue emphasis on the “pestering” rationale, and thereby missed a crucial, and very real, problem. The duration of the invocation isn’t merely about stopping police from badgering a suspect who has invoked his right to counsel, but about finding a moment of weakness, of compliance, of submission, and exploiting it to obtain a statement that would otherwise never be given.
Bear in mind, there’s no harm in the police going back to the well to see if they can catch the suspect at a moment of weakness, since the alternative is to be precluded from questioning the witness at all until counsel is provided. The cops have no need to be bullies in their approach; they just need to get to the suspect at the right moment, when there is a lapse in the sound judgment displayed by his invocation of right to counsel.
Of course, the fact that Dripps and Kamisar’s rationale only gets a C- doesn’t mean that it won’t be adopted by the Supremes. As they note, there is likely to be a few justices who would prefer to do away with the protections altogether. Sound reasoning and policy won’t necessarily stand in the way of a decision stripping defendants of their protections. But if they decision goes against Shatzer, the next question is going to be a doozy.
Even assuming 31 months, more than two and a half years, is “long enough” to dissipate the invocation of counsel, what about two and a half months? Weeks? Hours? What possible rational basis can exist for drawing a line where the right runs out? What a holy mess a reversal in Shatzer will make of things, with judges reaching deep within themselves to decide on an ad hoc basis how long is too long. Or more likely, can they get away with permitting the cops to try another dip in the well.
The Maryland Court of Appeals may have gone astray by dwelling too long on the “break in custody” exception. The Edwards rule was designed to prevent the police from pestering or badgering a suspect who has asserted his right to counsel at his first meeting with the police. But two interrogations in 31 months can hardly be called “badgering” or “pestering.” Why not say that when so much time has elapsed between the first and second meetings with the police that no reasonable custodial suspect could possibly believe that he was being badgered by the police or that the police were trying to wear him down, the Edwards protection should expire? Mr. Shatzer undoubtedly will argue that there is a need for a bright-line rule in this area. Two and a half years may seem long enough, but what about two and a half weeks or two and a half days? Absent a break in custody, i.e., a substantial change in circumstances, Shatzer will maintain, the Edwards protection should remain in effect.They conclude that it is “most unlikely” that a majority of the Court will agree that Edwards protections “never wears out.” Or, if we eliminate the double negative, the Court will reverse.
Just as Dripps and Kamisar argue that the Maryland Court of Appeals placed undue emphasis on the “break in custody” exception, it strikes me that they have placed undue emphasis on the “pestering” rationale, and thereby missed a crucial, and very real, problem. The duration of the invocation isn’t merely about stopping police from badgering a suspect who has invoked his right to counsel, but about finding a moment of weakness, of compliance, of submission, and exploiting it to obtain a statement that would otherwise never be given.
Bear in mind, there’s no harm in the police going back to the well to see if they can catch the suspect at a moment of weakness, since the alternative is to be precluded from questioning the witness at all until counsel is provided. The cops have no need to be bullies in their approach; they just need to get to the suspect at the right moment, when there is a lapse in the sound judgment displayed by his invocation of right to counsel.
Of course, the fact that Dripps and Kamisar’s rationale only gets a C- doesn’t mean that it won’t be adopted by the Supremes. As they note, there is likely to be a few justices who would prefer to do away with the protections altogether. Sound reasoning and policy won’t necessarily stand in the way of a decision stripping defendants of their protections. But if they decision goes against Shatzer, the next question is going to be a doozy.
Even assuming 31 months, more than two and a half years, is “long enough” to dissipate the invocation of counsel, what about two and a half months? Weeks? Hours? What possible rational basis can exist for drawing a line where the right runs out? What a holy mess a reversal in Shatzer will make of things, with judges reaching deep within themselves to decide on an ad hoc basis how long is too long. Or more likely, can they get away with permitting the cops to try another dip in the well.
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