A few days ago, Keith Lee of An Associate’s Mind sent me a story about some 19-year-old kid, Tio Sessoms, from the San Francisco Chronicle.
When 19-year-old Tio Sessoms was arrested in 1999 for the murder of a Sacramento minister, he told police that his father “asked me to ask you guys — uh, get me a lawyer.”
The officers responded by saying they would advise him of his rights and then see if he wanted a lawyer. They also told him two other suspects had already talked to them without lawyers and that an attorney would probably discourage him from giving them his version of events. And they denied his request to call his father.
After they gave him the Miranda warning of his right to remain silent and have an attorney present, Sessoms said he was willing to talk.
Naturally, he confessed. If he hadn’t, there would be no reason to write about this. Keith’s reaction was “seems pretty clear to me…” And that’s why he’s writing a blog and not majority opinions.
The trial court denied the motion to suppress the confession, and the 9th Circuit upheld the denial in a 2-1 ruling.
The court said police must halt their questioning of a suspect who clearly asks for a lawyer, but that Sessoms hadn’t done that. When he said, “Get me a lawyer,” he wasn’t speaking for himself but was just relaying what his father had told him, Judge Richard Tallman said in the majority opinion June 3.
In the questioning, which was recorded on video, Sessoms “never indicates any desire to transform his father’s advice into his own desire to have a lawyer present,” said Tallman, joined by Judge Johnnie Rawlinson. He also noted that the law requires federal judges to give great deference to the conclusions of state courts, like the one that upheld Sessoms’ conviction.
See, Sessoms wasn’t actually asking for a lawyer, but just repeating to the police what his father had told him. You know, telling a story about family life. “Dad said eat my broccoli, treat women with respect, ask for a lawyer;” that sort of thing.
No matter how many times it’s said, arrested folks just can’t seem to get it quite right. The magic words are: I do not want to answer questions. I want to speak with my lawyer. And then say nothing else, until another officer comes into earshot, whereupon you say the magic words again, and then shut up again. But you already know this because you’ve heard this a thousand times from criminal defense lawyers.
In a dissent described as “indignant,” “Judge Betty Fletcher said Sessoms’ clearly asked for a lawyer.” There’s nothing more heart-warming than an indignant dissent. It’s the next best thing to winning. The problem, of course, is that there are a thousand, no, a million, variations on the mantra, which are similarly clear to anyone inclined to support the invocation of Miranda by actual people that fail in case after case.
Change a word, a verb tense, anything, and the likelihood is that what strikes any normal person as absolutely clear is suddenly not only unclear, but ineffective. How, courts demand to know, should a cop understand “I think I ought to speak with a lawyer first” to mean that the persons wants a lawyer? He’s not asking for a lawyer, but merely expressing his thought processes. It’s entirely different.
The law requires a clear and unequivocal invocation of the right to remain silent and the right to speak with an attorney before questioning. The problem is “clear and unequivocal” is clear and unequivocal, that the only way the courts will accept the invocation is if you use their mantra. Anything less, or different, is subject to interpretation, and anything subject to interpretation isn’t clear and unequivocal.
So it’s not about whether it seems clear to you. It’s all about the mantra; use it or lose it. And just so you know, Keith, it seems pretty clear to me too, which is why I write a blawg and not majority opinions either.
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How much further down the slippery slope until we hit bottom? What’s next:
“I have a right to a lawyer”-he’s not invoking his right to counsel, merely reminding us he has that option.
“I need a lawyer”-he’s not ASKING for a lawyer, simply stating what his needs are.
“I want a lawyer”-again, a statement not a question. If I say “I want a BMW”, I’m not asking you to buy me one.
“I should have a lawyer here before I answer your questions”-Sounds like supposition to me, not a clear “demand” at all.
With the kind of linguistic gymnastics on display at the 9th Circuit, anything is possible.
One day “I retain all my rights and waive none of them, I refuse to answer any and all questions and invoke my Constitutional rights to not be compelled to be a witness against myself and to assistance of counsel” will be interpreted to mean “he said something, he must not want to remain silent.
If the SC can rule, as they apparently did in Berghuis v. Thompkins, that remaining silent waives the right to remain silent, then anything is possible.
You have a brilliant future ahead of you as an appellate judge.
The debate over the semantics of words and phrases has become fairly absurd. I was about to make some quip about having to deal with this in criminal law, but last week I spent 4 or 5 pages in a brief qualifying that surgeons are indeed physicians. So, it’s prevalent across the board.
Denying someone the right to counsel because they didn’t say the “magic phrase” is ridiculous.
It only appears to be a debate over semantics on the surface. It’s not. It’s the use of semantics to reach a result that effectively nullifies Miranda, and the 5th and 6th Amendment rights it seeks to protect. Judges do not want to suppress confessions, and will employ whatever verbal gymnastics they can to achieve the desired outcome.
As noted, even silence doesn’t mean silence. The trick qustion is how long it will take for courts to hold that the mantra itself fails, and thus leave no words capable of invoking these rights. That will be an interesting opinion.
It’s funny how one side of a prosecutor’s mouth can vociferously defend the notion that “I think I should probably talk to an attorney. My dad said people in situations like this should ask for an attorney.” doesn’t actually mean that the subject is asking for an attorney, while out of the other side of their mouth they can claim “I suppose that’s possible.” after being offered a possible depiction of events by a policeman in an interview is a rock solid admission of guilt.