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Tuesday, December 8, 2009

Are There Two Mirandas?

After all these years, with police and federal agencies routinely giving criminal suspects Miranda warnings (under the 43-year-old Miranda v. Arizona), it seemed Monday as if the law books have a formal notion of what the warnings must be, but, in reality, officers may have their own variations.

The Court spent an hour in Florida v. Powell (08-1175) exploring whether the two can — or should — be the same.The argument, with Justices actually quoting, from open volumes of the U.S. Reports, what the Miranda opinion itself said, focused mainly on whether officers need to use a warning that makes sure the suspect knows that he has a right to a lawyer with him throughout the time that any questioning is being done by law enforcement officers. The Florida Supreme Court, finding that Tampa police were leaving that part too vague, mandated more clarity.

It is not enough, the state tribunal said, to tell a suspect that the right to a lawyer is available “before answering questions” and that the right existed “at any time you want during” questioning. Police, it said, must add that the right is to the lawyer’s presence throughout.A Florida deputy attorney general, Joseph W. Jacquot of Tallahassee, opened with the state’s complaint that its Supreme Court had used a “hypertechnical analysis of the warning’s language,” and thus deviated from the flexibility that the Justices have allowed since Miranda.

The argument bogged down for a time in a discussion of whether Florida’s court could mandate the same warning under state law, if the Justices ruled against it in this case under the U.S. Constitution. Soon, however, the argument got back to the basic point as Justice Sonia Sotomayor began questioning whether the Court itself had introduced uncertainy about what Miranda meant.Jacquot said that, as the precedents now stand, it is enough that officers “reasonably convey” what a suspect’s rights are. That provided an opening for Justice Stephen G. Breyer to start reciting from Miranda itself — a refrain that he repeatedly over and over — to the effect that the lawyer must be “with him during interrogation.” His voice rising, Breyer gave a pointed emphasis on the phrase “with him.”

Helping Jacquot out, Justice Ruth Bader Ginsburg suggested that Miranda also spoke approvingly of the warning the FBI used at that time – leaving out the “with him” language. “There is a confusion,” Ginsburg said, “between what Miranda spells out and many other cases spell out.”

Breyer soon countered that the FBI had since revised its warning, to include the “with him” admonition.Justice Sonia Sotomayor openly expressed what some of her colleagues may have been thinking silently: that perhaps police can’t be trusted to make warnings explicit unless they are required to do so. In Tampa, she said, the officers “chose to obfuscate a little bit and be less specific. Shouldn’t we assume that tht is an intent to deceive or perhaps to confuse?” The state’s lawyer replied: ”Absolutely not.” Tampa’s police, he insisted, drafted the rights form to “reasonably convey the warning.”

The state court, he asserted, treated the warning requirement by reading it like a legal document, such as a will or an easement.Joining Florida in opposing the state court’s mandated warning, a federal lawyer, David O’Neil, assistant to the Solicitor General, relied on the Court’s post-Miranda precedents suggesting that no particular form of warnings was constitutionally required. But he also expressed confidence that law enforcement would not be likely to fudge the warnings, saying that police were not “looking for every way to get around the warnings.”That prompted a skeptical retort from Justice Anthony M. Kennedy, suggesting that a narrowing of the required warning would be widely imitated.

It also led Justice Sotomayor to suggest it may mean something that there is a split in lower courts on whether the Tampa approach adequately conveyed the scope of a suspect’s rights. That ambiguity, she suggested, might be a basis for the Court now to provide some clarity.Justice Breyer then engaged O’Neil in a discussion of what a suspect was likely to conclude from a warning that followed the Tampa approach.

The Justice suggested that an individual would assume it meant a right to talk a lawyer only before questioning began, and not to have the lawyer present throughout. O’Neil disagreed. No suspect is going to interpret the Tampa version as a suggestion that he can walk in and out of a room each time he wants to consult his lawyer.

The lawyer for Kevin DeWayne Powell, the suspect in the case, relied on the specific language of the Miranda opinion to support what the Florida court had done. But Assistant Public Defender Deborah K. Brueckheimer had some early trouble with Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia over how the Court in Miranda had treated the FBI warning in use at the time.

They suggested that the Court had embraced a warning without the requirement that the suspect be told his right included the continuing presence of counsel.After a while, Justice Scalia suggested that “this is angels dancing on he head of a pin.” It would be “quite fantastic,” Scalia said, for the suspect Powell to have refused to confess had he just known that his right to a lawyer included the actual presence throughout questioning. And the Chief Justice came to the rescue of the Tampa police department’s reputation, indicating that there was no “malevolent reason” that those officers revised their warning form.

Brueckheimer said it didn’t really matter what the police motive was; what was critical, she said, was how the suspect understood what he had been told.Justice Samuel A. Alito, Jr., sought to introduce a slippery-slope argument, commenting that, if Miranda warnings were read with the precision lawyers use, perhaps even the phrase “you have a right to remain silent” would be deemed insufficient to give that warning.Brueckheimer, however, sought to reassure the Court that neither she nor the Florida Supreme Court was indicating that there had to be “magic language” in order to enforce Miranda warnings adequately.

The argument then tailed off into a discussion of whether the Florida court’s ruling was, or could have been, based on the state constitution, rather than on Miranda itself.

(Reported at SupremeCourtBlog)

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