Suspect terrors (part one)

>> Thursday, February 05, 2009

You'll be surprised to hear that Dick Cheney doesn't get it. (And this is turning into such a long post about a specific thing Cheney doesn't get, that it's going to be a two-parter. Thank me or curse me as you will.)

Politico recently featured an interview with the former Vice President, in which Cheney says a number of stupid, near-stupid, and frightening things. I should go ahead and clarify that last item--"frightening"--by noting that Cheney isn't frightening when he says terrorists will attack the United States again sometime soon, but rather that he's frightening when he paraphrases Nicolo Machiavelli, apparently without realizing that Machiavelli, a (small-"r") republican, was probably being ironic.

But let's cover the cluelessness first, because Cheney is largely irrelevant but his sentiment, which is shared by a fair number of the ignorati, isn't. Cheney says:

When we get people who are more concerned about reading the rights to an Al Qaeda terrorist than they are with protecting the United States against people who are absolutely committed to do anything they can to kill Americans, then I worry.

In all fairness to Cheney, he may be engaging in a bit of rhetorical douchebaggery instead of ignorant asstardiness (no, I'm not sure which one would be worse, either). But the statement begs to be answered because it doesn't seem to be challenged nearly enough.

We should probably back up a little first, however. One of the best-known legal decisions in American history is Miranda v. Arizona (384 U.S. 436, 1966), which has subsequently shown up in every single American cop show ever aired since. Somewhat ironically, considering it's ubiquity, Miranda also is one of the least-understood things in American law; nearly every American old enough to watch Law And Order without getting bored and waddling off to chew on the corner of his crib can quote the basic rights which Miranda says must be read to a criminal suspect in certain circumstances, but hardly anybody seems to comprehend when Miranda warnings are required or what the remedy is if they aren't read.

So here's the primer: what Miranda says is that for the statements of a Defendant who was in custody at the time the statements were made to be admissible in court, law-enforcement officers must have advised the Defendant of his right to remain silent and his right to counsel before asking the Defendant any questions; failure to do so requires that the Defendant's statement be excluded from evidence.

Whew. That's a complicated construction. I'm sure most of you got it, but I'll break it down. For Miranda to apply to a case, all of the following must be present:

  • The Defendant made statements to law-enforcement officers.
  • The Defendant was in custody (unable to freely leave, even if not formally under arrest) at the time the statements were made.
  • The statements were made in response to questions asked by the law-enforcement officers.

If all of those conditions apply, and the law-enforcement officers did not inform the Defendant of his right to remain silent and right to counsel, then the statement may not be repeated to the jury.

So, breaking that down a little more:

  • A suspect is asked to come down to the police station. He does, is given a cup of coffee and told he can leave at any time. A detective asks him if he murdered Bob Smith. Defendant says, "Yep, shot the sonuvabitch six times in the back then pissed on the corpse; say, can I have me one o'them doughnuts you got there?" Admissible in court? Yes. The Defendant was not in custody.
  • A suspect is arrested for littering, cuffed and put in the back of the car. While being taken back to the station in silence, he begins to moan and sob in the backseat, and suddenly announces, "Oh God... oh God... I killed Bob Smith... I shot him... I'm going to Hell for that, aren't I... oh God...." Admissible in court? Yes.1 The statement was not made in response to questioning, but was a spontaneous outburst by the Defendant.
  • Defendant is arrested and dragged down to the interrogation room, where an angry detective who's seen Dirty Harry2 a few times forgets to read him his rights and begins screaming, "We know you killed Bob Smith, tell us when and how you did it, you miserable fuck!" The Defendant replies, "Who the hell is Bob Smith? Is that why I'm here? I drive a truck, I never killed nobody." Admissible? No--technically it isn't, but do you think the Defendant's lawyer is going to move to suppress? Hell no. The attorney is going to be building his cross-examination of the detective around the fact his client denied everything and expressed shock and ignorance about the whole situation.
  • Standing right in front of the police officer and forty other people, the Defendant pulls out a gun and shoots Bob Smith in the face. After he's tackled and arrested, he's taken back to the station house and interrogated without being given his rights, and he says, "Damn right, I shot that bastard, he's been screwing my wife for eight years and now she's pregnant." Prior to trial, Defendant's attorney moves to suppress the statement. Admissible? No. Defendant, while under arrest, answered questions without being given his rights. Do you really think that matters? Are you fucking kidding? Miranda is an exclusionary rule that covers statements to law enforcement officers; the District Attorney can still call his forty-one witnesses to tell the jury what they saw with their own eighty-two eyes (or fewer, if there were pirates in the crowd). If the DA can't convict on that, there's no help for him.

Got it? Good. Now I'm going to tell you a dirty little secret that might surprise you:

Miranda v. Arizona is one of the best things to ever happen to police officers in the history of the Supreme Court, has made prosecutions far easier, and has probably hurt more criminal defendants than it ever helped.


Because, see, here's the thing: before Miranda, a defense attorney could stand up in front of a jury and say his client never said anything, and if his client did say something, it was a lie, and if his client lied it was because the cops beat him up or tricked him or otherwise acted like thugs. But now cops come into court with these signed pieces of paper where the guy they charged has said "yes," "yes," "yes" to all these questions about whether he understands his rights and "no" to the part where he's asked if he wants a lawyer present.

I keep sort-of-breaking my rule about not blogging about work, but I have to offer this personal observation (which I know is typical in this jurisdiction and I think is pretty-near-universal in every other American jurisdiction): when I get discovery from the District Attorney's office, the first thing I do is I thumb through it looking for my client's confession and waiver-of-rights form. And if I find a confession and a waiver, my client is going to have to convince me he really didn't know what he was doing when he signed it and ran off at the mouth. And even if he convinces me--because, dear readers, it happens more often than you think that people will sign away their rights (and then there are false confessions--which are also more common than you think--but that's a topic for another post), then I generally have to advise my client that even if his waiver was unwitting and even if his statement was false, he will almost certainly lose his case at trial, because most juries will accept his confession at face value unless there's some extraordinary reason not to, and that a plea would probably be in his best interest.

Miranda wins cases for the State before the cases even get into court, is what I'm saying. A Mirandized confession in the file is a slam dunk for the prosecution; no, wrong sport--a Mirandized confession is the happy dance in the end zone after the insanely-easy interception and touchdown.

It's utterly baffling to me that some cops and law-enforcement organizations still bitch about it, because it's handed them convictions on a silver platter with a chocolate breath mint next to the plate.

(And this seems like a convenient place to take a breath and a break. Part Two will already have been written when this posts--but I'll be happy to answer any questions you have in the meantime.)

1Bonus points, Midgets U. law students, if you correctly identified the Defendant's statement as hearsay--an out-of-court statement not made under oath and offered for the truth of the matter--but admissible hearsay under the "statement against penal interest" exception to the rule against hearsay.

2By the way--I love that movie. Sure, it pisses all over my values, so what? That movie is made of awesome. I need to get it on DVD.


Ilya Thursday, February 5, 2009 at 6:21:00 AM EST  

I'm one of those laypeople who never had much of an idea what Miranda rights represented. This has been highly educational, Eric. Thanks!

vince Thursday, February 5, 2009 at 11:36:00 AM EST  

What Cheney and his ilk doesn't get it that it isn't about them, it's about us. There's a lot of cognitive dissonance going on when on the one hand you're claiming that the US has the moral high ground over the evil-doers of the world, but on the other hand you feel no compunction about emulating their tactics.

Tom Thursday, February 5, 2009 at 3:26:00 PM EST  

Eric, you know this. It isn't aimed at you.

The American system of justice is based on protecting the innocent. Miranda is a small part of that protection.

Cheney wants the terrorists not to have rights. The problem is that he wants to say who the terrorists are. If the people he says are terrorists really are terrorists, that should be provable in court, using the American system of justice, including all it's protections of innocence.

Once it's proved in court, a lot of the rights of the terrorists ARE taken away. So if you want to take away the rights of terrorists, just prove, in a court of law, that they are terrorists.

If you can't do that, you can't take away their rights. As with many other things, Cheney gets that exactly bass-ackwards.

And, by the way, I really love your writing. The way you put things, the way you explain things, the way you ridicule things, all make me see what you're writing about in a new light, and help me to make my own decisions about what I think.


Nathan Thursday, February 5, 2009 at 4:29:00 PM EST  

I haven't got the stomach to read the interview at the moment, but based on the one thing you quote:


By definition, you don't read someone their Miranda rights until they're in custody you dumb fuck. Are you worried that he's got a secret phone implanted in his skull and he's still running things? He's in custody, you dumb fuck.

It's a completely disingenuous argument.

And I'll second Vince. I love the way your write...especially managing to insert pirates into a post about Cheney and Miranda. Bravo!

Nathan Thursday, February 5, 2009 at 4:30:00 PM EST  


I was seconding Tom. Guess I'm a dumb fuck too. Yay!

Eric Thursday, February 5, 2009 at 5:09:00 PM EST  

Thanks, guys!

Tom, some of what you address comes up in part two, tomorrow. You do mention something that I probably take for granted in both pieces, and shouldn't because it's an integral part of the whole thing: a convicted terrorist will lose rights once you've proven he's a terrorist. So, in a way, you could simplify things by saying (and I think this is your point) that it's not about the rights of terrorists it's about the rights of suspected or alleged terrorists--so Cheney is assuming that which remains to be proven, a pretty cardinal sin if you're a believer in Reason. As you say, it's bass-ackwards.

Nathan, you also raise a good point that I sort of glide over: a suspected terrorist who's read his rights is in custody and therefore presumably (if he really is a terrorist) has been at least partially neutralized. Nobody is advocated that we phone up an al-Qaeda den in a war zone prior to firing a missile into it; "You have the right to remain silent, you have the right to counsel, the high-pitched whine you hear is the jet-powered drone that is going to kill you in... right now. Hello?"

neurondoc Thursday, February 5, 2009 at 8:57:00 PM EST  

Thanks for educating me on this, Eric. My knowledge of law is limited and colored by my deep-seated fear of getting sued.

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