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Wednesday, September 28, 2005

Iowa CrimProf Tomkovicz and Maryland v. Blake

Jamestomkovicz From a press release:  University of Iowa CrimProf Jim Tomkovicz will be involved in a case to be heard by the U.S. Supreme Court when it opens its new term on Monday, the traditional first Monday in October.

Tomkovicz has submitted an amicus curiae brief to the High Court in the case Maryland v. Blake, a case he believes could significantly reduce Americans' protections against unfair police questioning.

"Legal decisions in recent years have really whittled our Miranda rights down to nothing but the core," said Tomkovicz, an expert on the rights guaranteed in the Supreme Court's landmark 1966 Miranda decision. "The meat has been picked off and there's nothing left but bones."

In the case, Leeander Blake, a teenager, was arrested between 4:30 and 5:00 a.m. by police in Annapolis, M.D. as a suspect in a murder investigation. Blake, who was wearing only boxer shorts and a tank top, was placed in an Annapolis Police Department holding cell. As questioning began, he immediately invoked his right to an attorney and the police left.

A half-hour later, however, a police detective returned and presented Blake with a document that specified the charges. The document stated, in capital letters, that the penalty for first-degree murder was "DEATH," even though Blake, as a juvenile, could not be executed under Maryland law. A second police officer in the room then said to Blake "I bet you want to talk now, huh?" The first officer replied by telling the second officer that Blake didn't want to talk, that he had asked for a lawyer, and that the officers couldn't talk to him at that time. The officers then left the cell. Twenty-eight minutes later, when the first officer returned to the cell with Blake's clothing, Blake asked if he could "still" talk to the officers. He subsequently made incriminating statements to the police before consulting with an attorney.

Blake's attorney convinced the trial judge to suppress the incriminating statements because they had been given without the presence of an attorney even though Blake had requested one. The Maryland Court of Appeals agreed with that ruling and the State of Maryland took the case to the U.S. Supreme Court.

Tomkovicz agrees that the prosecution should not be able to use Blake's statement at his trial. In its decision in Edwards v. Arizona, the Supreme Court has previously held that the police are prohibited from initiating the interrogation of a suspect who has clearly requested an attorney. Once the right to counsel is invoked, interrogation is permissible only if an attorney is present or if the suspect himself initiates communications with the authorities and waives his Miranda rights.

"When Blake asked for an attorney, that should have ended all questioning immediately," Tomkovicz said. "But by returning to his cell with the erroneous and threatening statement of charges and then overtly challenging him to 'talk now,' the officers improperly ignored Blake's request for a lawyer's assistance and initiated a forbidden interrogation. This conduct clearly jeopardized his Fifth Amendment privilege not to be compelled to be a witness against himself."

Maryland admits that the officers did improperly initiate contact with Blake, but claims that the first officer's response to the second officer's conduct showed respect for Blake's right to counsel and "cured" any impropriety. 

Tomkovicz has argued that the officers "violated the Edwards doctrine and improperly approached Blake after he asked for a lawyer" and that "this sort of violation should be considered incurable. The officers here crossed a bright line and could not undo the harm they caused."

In his brief, Tomkovicz asks the justices to ensure that Fifth Amendment rights are preserved by adopting a demanding standard for police who continue to question suspects after Miranda rights have been invoked.

"Criminal suspects have to meet a very demanding standard when they ask for an attorney," he said. "Anything less than a clear, unequivocal request for an attorney does not trigger their entitlement to counsel, according to past Court decisions. In my view, the Court put in place an equally demanding standard for police questioning after a suspect informs them that he needs assistance."

The court will hear oral arguments in the case Nov. 1.

Tomkovicz is an expert in criminal law and criminal procedure and has written four previous amicus curiae briefs to the Supreme Court. He was enlisted to write the brief by the National Association of Criminal Defense Attorneys.

STORY SOURCE: University of Iowa News Service, 300 Plaza Centre One, Suite 371, Iowa City, Iowa 52242-2500.

MEDIA CONTACT: Tom Snee, 319-384-0010,

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