CrimProf Blog

New Article Spotlight: Charles Weisselberg on Mourning Miranda

Berkeley CrimProf Charles Weisselberg has published Mourning Miranda on SSRN.  The abstract: "The article presents new field research about police interrogation tactics and training and discusses that research in light of recent science literature and judicial decisions. I argue that the safeguards of Miranda v. Arizona have become ineffective, not because police are deliberately disobeying Miranda, but because officers have learned how to take advantage of rulings that have critically weakened Miranda's supposed protections.

Miranda's warnings and waivers were intended to afford custodial suspects an informed choice between speech and silence, and prevent involuntary statements. But there never was evidence to show that a system of warnings and waivers could actually protect the Fifth Amendment privilege against self-incrimination. Since Miranda was decided, the Supreme Court has encouraged police practices that have effectively gutted Miranda's safeguards. This paper presents police training materials that are not generally available to the public. Training is a primary link between the Court's pronouncements and the way in which interrogations are actually conducted. Combined with the social science literature, these training resources demonstrate how the warning and waiver regime coheres with a sophisticated psychological approach to police interrogation, rather than operate apart from it, as the Court intended.

I also argue that Miranda is now detrimental to our criminal justice system. It is bad enough that Miranda's vaunted safeguards appear not to afford meaningful protection to suspects. But following Miranda's hollow ritual often forecloses a searching inquiry into the voluntariness of a statement. I am skeptical that the courts may retool Miranda's procedures. I suggest other possibilities, including legislation."  Full article here. [Jack Chin] 

En Banc Ninth Circuit Holds That When a Suspect in Custody Says "I Plead the [F]ifth," He Has Invoked His Miranda Right to Remain Silent

The en banc Ninth Circuit yesterday reversed a denial of habeas relief to a state prisoner convicted after his statements to police were admitted into evidence, where those statements were the result of an interogation during which he said, "I plead the [F]ifth."  The California Court of Appeals had determined that this apparent invocation of the right to remain silent was ambiguous inasmuch as it may have referred only to a single line of questioning regarding the suspect's drug use rather than the murder for which he ultimately was convicted.  That court also determined that the police officer's follow-up question -- "Plead the [F]ifth?  What's that?" -- was a legitimate clarifying question rather than an effort to "play dumb" and keep the suspect talking.  The Ninth Circuit held that the former conclusion was an unreasonable application of Miranda and the latter was an unreasonable determination of the facts.  You can read the opinion here. [Mike Mannheimer]

Seton Hall Law Students Discover the Government Records Guantanamo Bay Interrogations

Seton Hall Law’s Center for Policy and Research has discovered new evidence of a longstanding government practice of recording interrogations at Guantánamo Bay. In light of the national debate about the Central Intelligence Agency’s (CIA) destruction of video recordings, the report proves that the two CIA tapes that were destroyed were only a tiny fraction of perhaps 24,000 recorded interrogations.

A May 2005 report by Lieutenant General Kevin Kiley confirms that each interrogation at Guantánamo was videotaped. Lieutenant General Randall Schmidt issued a report the following month stating that more than 24,000 interrogations of detainees took place at Guantánamo over a three-year period. In the meantime, the Bush administration has announced it will pursue the death penalty for six detainees who will stand trial for crimes related to the attacks of September 11, 2001.

Professor Mark Denbeaux, Director of the Center for Policy and Research at Seton Hall Law, commented, “Our students proved that Guantánamo interrogations were videotaped, which impacts the impending trials of the six detainees. We all want to see the perpetrators of 9/11 punished. But if the tapes of those interrogations still exist, it is imperative that we understand, before these trials start, whether the information was obtained through standard interrogation procedures or through torture.”

Captured on Tape, the Center’s seventh Guantánamo Report, is based entirely on the government’s own documents, most of which were procured through Freedom of Information Act suits. The prior Reports have been cited by the Senate Armed Services Committee, the House Armed Services Committee, the House Appropriations Committee, and the Senate Judiciary Subcommittee on Terrorism, Technology and Homeland Security; and introduced into the Congressional Record.

[Mark Godsey]

Should Suspect Interviews be Tape-Recorded?

A brutal crime on a Navajo reservation in Arizona has intensified the debate over whether suspect interviews should be tape recorded.  The crime involves a Navajo man charged with beating his girlfriend nearly to death and then hanging her by a rope outside their Arizona trailer home to make the attack look like a suicide attempt.

Paul K. Charlton, the United States attorney in Arizona, was ousted after spending months protesting a FBI policy that, for practical purposes, forbids the taping of almost all confessions, in stark contrast to the practice of many local law enforcement agencies in Arizona and other locations across the country.

Mr. Charlton blamed the F.B.I. policy for the resulting plea bargain in the Navajo reservation assault case, as well as the acquittal of a defendant in a child sexual abuse case and a suspect in a prison murder indictment.

Eight states, by law or court action, mandate taping of interviews with suspects in at least serious felony cases, turning a tape recorder or video camera into an important tool in convictions, like DNA tests, fingerprints and ballistics. More than 450 law enforcement agencies in major cities and smaller jurisdictions also require the taping of certain interrogations. The FBI, however, has strenuously resisted the practice unless special permission is granted by supervisors, under the theory that it may discourage suspects from talking and expose juries to interrogation methods that the department would rather not highlight.

But many prosecutors believe that the inability to tape suspects, especially those accused of sexual abuse and domestic violence, can seriously compromise a case. Story here from NYTimes.com. . . [Michele Berry]

Guantanamo Confessions Scrutinized under the World's Microscope

Just how significant were the recent Guantanamo confessions?  Jonathan Hafetz, an attorney with NYU Law's Brennan Center for Justice, who represents Guantanamo prisoners calls the confessions the result of "justice on the fly" while Berkeley LawProf John Yoo views the confessions as the result of a balance between protecting national security/gathering wartime intelligence and administering a fair trial with due process protections. Full story. . . [Michele Berry] 

The Right to Silence Questioned in New Zealand

In New Zealand, the Police Association is calling for the right to silence to be reviewed and possibly revoked so that the police can compel people to talk. (I don't know if their proposal calls for a change in the law that would allow the right to silence to be used against people who invoked it--ie. to infer guilt--or if the New Zealand police would be allowed to use more aggressive "techniques," so to speak, to compel people to talk...probably the former, but the full story doesn't elaborate).

Two recent child homicide cases in New Zealand, in which the police say parents have refused to be interviewed, spurred the Police Association's call for review of the right to silence. Full story. . .

Mark Godsey's most recent article (Reformulating the Miranda Warnings in Light of Contemporary Law and Understandings) has a portion discussing how, internationally, inferring guilt from one's assertion of the right to silence (if a right to silence even exists) isn't an uncommon phenomenon.  In fact, many people in the U.S. think that invoking the right to silence will be used against them in some way, even though such inferences of guilt are unconstitutional.  [Michele Berry]

Bush Administration Attempts to Legalize Harsh Interrogation Techniques

From nytimes.com: Many of the harsh interrogation techniques repudiated by the Pentagon on Wednesday would be made lawful by legislation put forward the same day by the Bush administration. And the courts would be forbidden from intervening.

The proposal is in the last 10 pages of an 86-page bill devoted mostly to military commissions, and it is a tangled mix of cross-references and pregnant omissions.

But legal experts say it adds up to an apparently unique interpretation of the Geneva Conventions, one that could allow C.I.A. operatives and others to use many of the very techniques disavowed by the Pentagon, including stress positions, sleep deprivation and extreme temperatures.

Rest of Article. . . [Mark Godsey]

Freed Man Testifies About The Reality of False Confessions

From latimes.com: Seventeen years ago, Christopher Ochoa told a Texas jury exactly how he and a friend repeatedly raped 20-year-old Nancy DePriest and then shot her dead at her workplace. But Ochoa's story was a lie — a total lie. He had been threatened with the death penalty by a police detective if he did not admit to the murder. The fact that Ochoa confessed falsely did not come to light until 2000, four years after the real killer told police that he was responsible for the young woman's death.

Today, Ochoa is testifying in Los Angeles at a hearing of the state's Commission on the Fair Administration of Justice about the ramifications of their experience for California. In particular, they want to express their strong feelings about a subject that many people find difficult to grasp: that innocent people sometimes really do confess to crimes they did not commit.

"Cases like this reveal in very dramatic terms that this does happen — not just with people who are mentally ill or of limited intelligence or otherwise vulnerable, such as children," said  University of Wisconsin School of Law CrimProf Keith A. Findley, who played an instrumental role in securing freedom for Ochoa and Danziger. "It happens with mentally healthy, intelligent people like Chris Ochoa," who last month graduated from the law school where Findley teaches, the professor said.

Indeed, of the 180 inmates in the United States exonerated by DNA testing in the last two decades, 44 had falsely confessed, said New York attorney Barry Scheck, a co-founder of the Innocence Project at New York's Benjamin N. Cardozo School of Law who also played a key role in the case.

Rest of Article. . . [Mark Godsey]

Why Innocent People Confess

LA Times story here.  [Mark Godsey]

New Blog on False Confessions

Williams College Prof./ Yale Law School grad Alan Hirsch has a new website on false confessions, www.thetruthaboutfalseconfessions.com.  It is worth checking out

Courts, Congress, DOJ Scrutinize Witness Detention Law

After reports that it has been abused in terrorism investigations, a 22-year-old federal law that allows people to be held without charges if they have information about others' crimes is coming under fresh scrutiny in the courts, in Congress, and within the Justice Department. The law allows so-called material witnesses to be held long enough to secure their testimony if there is reason to think they will flee. But lawyers for material-witness-detainees say the law has been used to hold people who the government fears will commit terrorist acts in the future, but whom it lacks probable cause to charge with a crime.

Concerns about how the law has been used have prompted calls from across the political spectrum for a reassessment. That debate has also ignited a broader one: whether the United States should join the several Western nations that have straightforward preventive detention laws. More from NYTimes. . . [Mark Godsey]

Are Compelled Confessions from Foreign Lands Admissible in US Courts?

A Chicago case raises the question: A man interrogated over a long period by Israeli intelligence officers is challenging his statements.

Virginia Law Panel Debates Extraordinary Rendition and Torture

"The controversial use of extraordinary renditions to interrogate or detain suspected terrorists has evolved since its first use by the United States in 1995, but the practice fails to address concerns about torture and may be ineffective in quashing terrorism, said panelists at a Feb. 16 discussion at the University of Virginia Law School. Moderated by JAG Legal Center and School Executive Director David E. Graham (pictured), the panel featured Michael F. Scheuer, author of the best-selling Imperial Hubris and former chief of the CIA Bin Laden Unit, and Margaret L. Satterthwaite, faculty director of the Center for Human Rights and Global Justice at the New York University School of Law.

“Suspected terrorists are often transferred from one state to another for the purpose of arrest, detention, and/or interrogation,” Graham said. “This act of transfer itself is an act of rendition, and I say that so that you don’t…take away the idea that the word ‘rendition’ is, in and of itself, a dirty word. It’s not.” If undertaken under the full construct of the law, as it most often is, Graham said, this process is better known as extradition. Irregular or extraordinary rendition occurs when prisoners are extradited through a process that does not afford them an opportunity to judicially challenge their transfers...Some reports, none substantiated, suggest that over 100 extraordinary renditions have occurred since 9/11, according to Graham. “The Bush administration has said that [it does] not engage in extraordinary rendition for the purpose of…intelligence interrogation using torture as a method,” he said. “They don’t deny that extraordinary renditions have occurred.”

Nonetheless, many critics continue to believe that these renditions are conducted in order to gain crucial information through the torturing of suspected terrorists. While the Convention Against Torture (CAT), which the United States has ratified, forbids transfers to states where there is a “substantial likelihood” that an individual will be tortured, it does not forbid transfers to locations where certain kinds of treatment that might be considered cruel, inhuman, or degrading treatment under U.S. law might occur. Nor does the CAT forbid renditions, Graham said." More. . . [Mark Godsey]

5th Circuit Miranda Decision, "As Clear as Mud"

Four circuits require police to give explicit advice to defendants that they are entitled to counsel during interrogation, as part of the Miranda warning, while four other circuits do not. In a recent Texas death penalty case, the 5th U.S. Circuit Court of Appeals, which has required since 1968 that the defendant be "clearly informed" of a right to a lawyer during interrogation, decided it wants it both ways.

The circuit court rejected the Miranda challenge in the habeas corpus appeal of Allen Bridgers, saying that detectives' advice that Bridgers had the right to consult an attorney "prior to" questioning was adequate to convey that he was entitled to have an attorney before questioning, "and that this attorney could remain during questioning," according to Judge Fortunado Benavides. Bridgers v. Dretke, No. 05-70020. But in a footnote, Benavides said that the circuit would continue to apply its 37-year-old precedent to direct appeals that "a suspect must be explicitly warned that he has the right to counsel during interrogation." U.S. v. Atwell, 398 F.2d 507 (1968)...The Atwell court stated that telling the accused that he or she is entitled to consult an attorney "at any time" does not comply with Miranda v. Arizona, 384 U.S. 436 (1966)...When Bridgers was arrested, an officer warned him, "You have the right to the presence of an attorney/lawyer prior to any questioning. Do you understand?" Bridgers indicated he did. He gave a tape-recorded confession that the defense sought to suppress based on the failed claim of an inadequate Miranda warning."

The court's mixed message of adhering to Atwell, while maintaing that the officer's pre-interrogation warning was adequate to convey that Bridgers was entitled to have an attorney prior to questioning, leaves the decision "as clear as mud." Story from the National Law Journal. . . [Mark Godsey]

Southwestern CrimProf's Habeas Corpus Win

Ken Williams won a 5th Circuit habeas and a 9-7 denial of rehearing en banc in a capital case where the defendant was tricked into confessing.  The district court found that the defendant had requested counsel, but was told by the police that his lawyer told him to go ahead and talk without an attorney present. Story here. [Jack Chin]

Oral Argument in Confessions Case Today

The case is Maryland v. Blake.  Question presented:  Did the police actions in question constitute the functional equivalent of interrogation, and if so, were they appropriately ruled inadmissible at trial?   Details of case here.  [Mark Godsey]

"Confessions Under Torture"

From NPR.com: Oct. 25, 2005 Day to Day: "A federal court ruled that the confession of an alleged al-Qaeda member could be used at trial, despite the suspect's testimony that it was obtained under torture. Noah Adams talks with Slate legal analyst Dahlia Lithwick about the case, in which a U.S. citizen confessed -- while in the custody of Saudi Arabian authorities, often criticized for their harsh interrogation techniques -- to participating in a plot to kill President George W. Bush." Listen here [Mark Godsey]

Iowa CrimProf Tomkovicz and Maryland v. Blake

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, tom-snee@uiowa.edu.

New Article Spotlight: Reformulating the Miranda Warnings

My newest piece is entitled Reformulating the Miranda Warnings in Light of Contemporary Law and Understandings.  I just accepted an offer to publish it at the Minnesota Law Review.  Here's the abstract:

Since Miranda v. Arizona was decided in 1966, much scholarly attention has been devoted to both the theoretical underpinnings and the real world impact of that decision. Little attention, however, has been paid to the substance or content of the warnings. The Supreme Court has often stated that the Miranda warnings requirement is a prophylactic rule that can change and evolve. However, in spite of 40 years of legal developments and practical experience, the content of these famous four warnings has never been modified or even been subjected to systematic scrutiny.

This Article proposes that the substance of the Miranda warnings should be reconsidered as the rules of law underlying the warnings substantially evolve, and as we gain new insights into their effectiveness (or lack thereof). In light of the significant legal changes of the last four decades, and the real world experience that we have gained with the warnings during this time, Miranda's 40th anniversary presents an opportune time to reexamine the content of the warnings to ensure that they remain consistent with and continue to reflect the evolving legal principles that support and justify their existence, and to reaffirm that they remain effective in upholding and enforcing the constitutional rights of suspects.

A close examination of the warnings suggests that they are out of date. This Article argues that if the warnings were redesigned today, by a Court as mindful of properly balancing the competing interests as was the Miranda Court, they would take a different form. The first two warnings, relating to the right to remain silent, would certainly be included. However, these warnings should be buttressed by a third right to silence warning that would provide something to the effect of: If you choose to remain silent at the beginning or at any time during the interview, your silence will not be used against use as evidence to suggest that you committed a crime simply because you refused to speak.

Furthermore, the third and fourth warnings, relating to the right to counsel, would not make the updated list. In place of the two right to counsel warnings would be three new requirements, reflecting legal developments and practical lessons that have come to light since 1966. The first requirement would be a new warning as follows: If you choose to talk, you may change your mind and remain silent at any time, even if you have already spoken. The second requirement would be a rule mandating that the police to re-instruct suspects of the new Miranda warnings at intervals throughout lengthy interrogations. Finally, the police would be required to videotape all interrogations. These three new requirements would more effectively achieve the intended policy goals of the right to counsel warnings, and thus, should replace the right to counsel warnings in the prophylactic scheme.

Obtain a rough draft of the paper here.  I welcome any comments.  [Mark Godsey]

Wisconsin Confession Case

From BNA.com:  "The Wisconsin Supreme Court July 14 held that "physical evidence obtained as a direct result of an intentional violation of Miranda v. Arizona, 384 U.S. 436 (1966), is inadmissible under Article I, Section 8 of the Wisconsin Constitution." Disagreeing with the positions taken by a divided majority of the U.S. Supreme Court in United States v. Patane, 542 U.S. 630 (2004), the state court said the suppression of the fruits of voluntary statements obtained after police deliberately withhold Miranda warnings is necessary to deter this type of "repugnant" police misconduct and to preserve judicial integrity. (State v. Knapp, Wis., No. 2000AP2590-CR, 7/14/05, further proceedings in 666 N.W.2d 881, 73 CrL 481)."

Decision here.  [Mark Godsey]

Military Judge Throws Out Abu Ghraib Prison Abuser's Confession for Involuntary Waiver of Miranda

Talkleft says:  "Lynndie England, the accused prisoner abuser, accomplished what is usually a herculean task: she persuaded a judge that she did not knowingly and voluntarily surrender her right to remain silent."  Story here.  [Mark Godsey]

Wisconsin Adopts Recorded Interrogations Requirement for Juveniles

Due to the work of Wisconsin State Public Defender Eileen Hirsch, and a host of amicus briefs filed by, among others, Northwestern University’s Bluhm Legal Clinic and the Wisconsin Innocence Project, the Wisconsin Supreme Court exercised its superintending authority this week to require that all future custodial interrogations of juveniles be electronically recorded when feasible, and without exception when the interrogation occurs in a place of detention.  Audio recordings meet the requirement, but video is preferable.  The Court did not say what the decision means for custodial interrogations of adults (although one of the dissenting justices quoted Bob Dylan: “You don’t need a weatherman to know which way the wind blows.”).  The decision makes Wisconsin the third state to have some form of judicially-mandated electronic recording (after Alaska and Minnesota).  A few state legislatures, including Illinois, New Mexico, and Maine, have recently taken action on electronic recording, and a number of others have bills pending. 

The name of the case is State v. Jerrell C.J. and can be found here.   Newspaper article here.  [Mark Godsey, thanks to WIP attorney Byron Lichstein for this content]

Confession in Jessica Lunsford Case Problematic

Transcripts of the police interrogation show that the suspect, John Couey, asked for an attorney 3 times prior to confessing.  Each time, the police blew it off.  Sounds like this high-profile confession is out the door.  [Mark Godsey]

Attorney Suspended For Convincing Defendant To Confess

San Fransisco attorney Joshua Dale was suspended from the bar for four months for convincing a defendant charged with arson to confess to him.  Dale was representing the landlord of the building that was damaged in the arson, and wanted to obtain a confession from the defendant in order to use it in his client's civil suit against its insurance company.  Dale visited the uneducated defendant in prison and cajoled the desired confession from him.  The confession occurred while the defendant was awaiting an appellate decision as to whether his earlier confession to the police should have been admitted at trial.  Dale promised the defendant that the confession would only be used in the civil case, and would not hurt his chances of obtaining a new trial on appeal.  Dale also ignored requests from the defendant's criminal attorney to stay away from his client.  Story . . .  [Mark Godsey]

New Cases of Interest

From BNA.com: 

State v. Sykes, Wis.,   No. 2003AP1234-CR, 4/22/05
PROBABLE CAUSE TO ARREST CAN JUSTIFY WARRANTLESS SEARCH AS 'INCIDENT' TO LATER ARREST THAT OFFICER DIDN'T INTEND TO MAKE AT TIME OF SEARCH

The existence of probable case will justify treating a warrantless search as a search "incident" to a later arrest for a different crime even when the officer, at the time of the search, did not intend to arrest the defendant and the later arrest is based on evidence found during the search, the Wisconsin Supreme Court decides. It is not the officer's subjective intent that is important, the court says; it is the fact that the officer actually had probable cause to arrest the defendant at the time he performed the search.  Decision here.

Garvey v. State, Del.,   No. 5-2004, 4/28/05
A defendant who responded to a request to waive his "Miranda" rights by saying, "Depends on what you ask me," unambiguously waived his rights, the Delaware Supreme Court holds.  Decision here.  [Mark Godsey]

Terrorism Suspects Sent to Foreign Countries for Interrogation After 9/11

From MSNBC.com:  "The Bush administration gave the CIA extensive authority to send terrorism suspects to foreign countries for interrogation just days after the Sept. 11, 2001 attacks on the World Trade Center, The New York Times reported in Sunday editions.  Citing current and former government officials, the newspaper reported President Bush signed a still-classified directive that gave the CIA a broad power to operate without case-by-case approval from the White House in the transfer of suspects — a process known as rendition. 

The rendition program has been under scrutiny in recent weeks after several former detainees have complained of inhumane treatment and human rights groups have complained the operations violated American standards condemning torture.  While renditions were carried out before the Sept. 11 attacks, since then the CIA has flown 100 to 150 suspects to countries including Egypt, Syria, Saudi Arabia, Jordan and Pakistan, former government officials told the Times."  Full story . . .   [Mark Godsey]

Interesting New Cases

Elstad Rule Applies to Sixth Amendment

The Eighth Circuit held last week in U.S. v. Fellers, 01-2045, that a violation of the Sixth Amendment in an initial interrogation does not preclude the admissibility of a second confession taken during a subsequent interrogation after Miranda warnings were provided and waived.  The Court stated:  "The similarities between the Sixth Amendment context at issue in Fellers's case and the Fifth Amendment context at issue in Elstad support our conclusion that the Elstad rule applies when a suspect makes incriminating statements after a knowing and voluntary waiver of his right to counsel, notwithstanding earlier police questioning in violation of the Sixth Amendment. Although the Supreme Court has never explicitly stated that the Elstad rationale is applicable to Sixth Amendment violations, it has emphasized the similarity between pre-indictment suspects subjected to custodial interrogation and post-indictment defendants subjected to questioning."

Death Row Inmate Entitled to Hearing on Mental Retardation

The Fourth Circuit held last week in Walker v. True, 04-16, that the district court erred when it dismissed plaintiff-death row inmate's successive federal habeas petition before holding an evidentiary hearing on whether he is mentally retarded under Virginia law.  [Mark Godsey]

New Case: Stationhouse Interrogations and Miranda Custody

Last week, the Eighth Circuit in U.S. v. Brave Heart, 03-2888 (and here) held that a suspect was not in custody for purposes of Miranda under the following facts:  Brave Heart, a Native American, had called 911 when a 10-month old child in his care died.  The next day, an FBI agent asked him to come down to the police station for an interview after the agent learned that the pathologist's  report, showing the death was caused by two blows to opposite sides of the head, conflicted with Brave Heart's story.  The ninety-minute interview at the station was in two parts.  The doors to the interrogation room were closed throughout, and the officers told Brave Heart at the beginning of the first phase of the interrogation that he was not under arrest.  During the first part of the interrogation, the officers, playing "good cop," simply listened to Brave Heart's presumably false explanation in a civil, nonthreatening manner.  Then the officers took a 10-minute break, stating that they needed to make some phone calls.  After the break, the officers returned with a much more accusatory tone, and informed Brave Heart that they had just spoken to the pathologist and that the pathologist's report conflicted with Brave Heart's explanation.  This information was false, as the officers had actually spoken to the pathologist earlier in the day, but intentionally made it seem to Brave Heart as if they had learned this information during the 10-minute break.  During the second phase of the interrogation, the officers told Brave Heart that they knew he was responsible for the killing, and employed a sympathy-rousing routine to elicit a confession.  The officers told him that what he had done was understandable given that he was under a lot of stress having to watch so many children, and that the mother of the child shared some of the responsibility for the child's death.  Brave Heart, who was crying during this second phase of the interrogation, ultimately admitted that he had beaten and killed the child and was placed under arrest.  At no time was Brave Heart given Miranda warnings.

After the district court had suppressed the confession finding that Brave Heart was in custody for purposes of Miranda during the second phase of the interrogation, the Eighth Circuit reversed. 

While Oregon v. Mathiason holds that not all stationhouse interrogations can be considered "custodial" for purposes of Miranda, this case seems to present some significant differences that, in my opinion, suggest that custody was present.  In both cases, the suspect came to the police station voluntarily and was told at the outset that he was not under arrest.  Beyond that, however, the facts of the two cases diverge.  In Mathiason, the interrogation lasted less than 10 minutes, while in Brave Heart, more than 90 minutes.  In Mathiason, the interrogation remained calm and civil throughout, while in Brave Heart the interrogation took on a decidedly accustatory tone for an extended period of time during the interrogation's second phase.  Most importantly in my opinion, however, is the fact that in Mathiason the officer told the suspect at the beginning of the interview (falsely) that his fingerprints were found at the crime scene.  He was also informed at the same time that he was not under arrest.  Thus, Mathiason could reasonably believe that he was not under arrest despite the fact that his fingerprints had been found at the scene.   In Brave Heart, however, the officers pretended like they obtained this inculpatory information in the middle of the interrogation, and then began accusing Brave Heart of having committed the crime.  This is significant because a reasonable suspect in Brave Heart's shoes would likely believe at the beginning of the second phase of the interrogation that, now that the officers have suddenly obtained new evidence of his guilt, he was no longer free to leave.  In other words, the new evidence of guilt had trumped the earlier statement that he was not under arrest.  The officers in Brave Heart set up the interrogation such that the statement at the beginning of the interrogation that Brave Heart was not under arrest would seem meaningless given the subsequent, intervening events.  [Mark Godsey]

Interesting New Cases

Reasonable Expectations of Privacy
The Fourth Circuit held this week in U.S. v. Stevenson, 04-4227, that a defendant did not have a reasonable expectation of privacy in an apartment rented in his name.  In Stevenson, the defendant was taken into custody by the police prior to the unlawful search of his apartment.  While in custody, the defendant, presumably expecting to be convicted and serve a long sentence, wrote a letter to his girlfriend saying that she can have everything in his apartment.  As a result, the court found that he had abandoned his expectation of privacy in the apartment prior to the time the search occurred.

Public Safety Exception to Miranda
In the recent Eighth Circuit case of U.S. v. Luker, No. 04-1220, the police pulled the defendant over for DUI.  The officers claimed that after they pulled the car over and saw who was behind the wheel, they feared for their safety because they knew the defendant had a history of meth use.  After placing the defendant in custody and without providing Miranda warnings, the officers asked the defendant whether there was anything in his car "that shouldn't be there or that they should know about."  The defendant then revealed that he had a firearm in his car, and was arrested and convicted of felon in possession.   The decision drew a dissent from Judge Heaney, who argued that the evidence that the defendant was in fact a meth user was very thin and far too vague to raise a reasonable concern about public safety.  The evidence amounted to the fact that the defendant had been seen hanging out with known meth users.

I have another concern with the decision.  According to Quarles, "the questions must be necessary to secure the safety of officers or the public, and may not be designed solely to elicit testimonial evidence from a suspect."  So, in Quarles, the officers' concern related to the location of a gun, and the question asked of the suspect was pointedly directed to that end.  The question asked of the defendant in this case, however, was so broad that it seemed designed solely to elicit incriminating statements from the defendant.  The officers appeared to be on a fishing expedition rather than concerned about a specific type of danger, and their question was the functional equivalent of:  "Are you doing anything illegal right now?"  [Mark Godsey]

New Case: Sex Offender Programs and the Self-Incrimination Clause

The Ninth Circuit held last week in U.S. v. Antelope (and here) that the federal sex offender program for convicts on supervised release, which requires participants to disclose past acts of criminal sexual misconduct, violates the self-incrimination clause when it sends a releasee back to prison for refusing to participate and incriminate himself through such disclosures.  The court distinguished McKune v. Lile, in which the Supreme Court upheld the taking away of an inmate's prison privileges when he refused to participate in a similar sex offender program prior to release.  The 2002 case of McKune was a plurality decision from which it is hard to find a clear holding.  Justice Kennedy, writing for 3 other Justices, believed that the prison sex offender program in McKune was permissible in part because it took place in prison, did not impose penalties on "free citizens," and implicated important penalogical goals of the state.  Kennedy also argued that the program in McKune simply offered incentives to participate rather than imposed penalties on silence.  O'Connor concurred on different grounds, arguing that the case presented a question similar to the "choices inherent in the criminal process" cases like Jenkins, McGautha and Bordenkircher, and that the pressure inherent in McKune's choice to participate in the program--possible loss of prison privileges--was not adequately severe to constitute compulsion in that context. Given that the Ninth Circuit relied solely on O'Connor's concurring opinion in McKune (and argued that the penalty in Antelope--imprisonment--was sufficiently more severe than that in McKune) plus speculation as to the likely positions of McKune's 4 dissenters to reach its result, this case might see action at a higher level.  If so, it will be interesting to see if Justice Kennedy and the 3 Justices that joined his McKune opinion believe that a person on supervised release is more like a prisoner or a "free citizen."  [Mark Godsey]

Conference: Crawford and Beyond at Brooklyn

February 18, 2005.   Too many CrimProfs to mention.  Details here. [Jack Chin]

The Old Fake Death Sentence Trick: UPDATED

North Carolina police with arrest warrants for property crimes told Andrew Dalzell that he was a suspect in the 1997 disappearance of Debora Leigh Kay.  They put him in the back of a patrol car with a phony warrant for murder, and a phony letter from the DA saying that he would receive the death penalty unless he confessed.  Dalzell confessed to the murder.  Then and only then did police administer Miranda warnings.  Just to make sure he was totally helpful to the police, he confessed orally, in a handwritten statement, and in a typed statement.  UNC CrimProf Louis Bilionis commented that it seems to have been a case of custodial interrogation without Miranda warnings.  "[Interrogation] does not mean merely asking questions. If you use psychological ploys that are likely to elicit a response from the suspect it is the same thing as questioning the suspect." 

UPDATE: Confessions suppressed. Here's IsThatLegal's take. [Jack Chin]

Breaking Case News: 8th Circuit Holds Custodial Pre-Miranda Silence Can Be Used in Prosecution's Case in Chief

The Eighth Circuit held on Friday in U.S. v. Frazier that a defendant's post-arrest but pre-Miranda silence can be used against him in the prosecution's case-in-chief.  The defendant's silence in this case was particularly incriminating, because when the officer accused him repeatedly of criminal violations, he made no comment and showed no reaction.

Crime & Federalism Blog does an excellent job blogging this case, including excerpts from the opinion and a discussion of the law on this topic here.  [Mark Godsey]

DOJ Issues New Memo on Torture

The AP story is here.  [Mark Godsey]

Guantanamo Detainees Allege They Were Subjected to Drug Experimentation

Talkleft has the post here.  [Mark Godsey]

ACLU Reports that Bush Authorized Inhumane Interrogations of Detainees in Iraq

TalkLeft reports:  "A document released for the first time today by the American Civil Liberties Union suggests that President Bush issued an Executive Order authorizing the use of inhumane interrogation methods against detainees in Iraq. Also released by the ACLU today are a slew of other records including a December 2003 FBI e-mail that characterizes methods used by the Defense Department as 'torture' and a June 2004 'Urgent Report' to the Director of the FBI that raises concerns that abuse of detainees is being covered up.  'These documents raise grave questions about where the blame for widespread detainee abuse ultimately rests,' said ACLU Executive Director Anthony D. Romero. 'Top government officials can no longer hide from public scrutiny by pointing the finger at a few low-ranking soldiers.'"  [Mark Godsey]

Can Cops Use Threats to Get a Kidnapper to Disclose a Victim's Location?

A German prosecutor says no.  In September, 2002, two officers threatened a suspected kidnapper to get him to disclose the location of the 11-year-old victim, the son of a wealthy banker.  Upon hearing the threats, the kidnapper admitted the boy was dead, at the bottom of a lake.  The kidnapper is serving a life sentence.  The officers are now being prosecuted for the threats, which evidently violate the German constitution.  The prosecutor is seeking fines against the officers. ``The door to a very dark room was opened and this door needs to be shut again,'' the prosecutor told the court. ``A person in custody has the right to be treated with human dignity.''   A verdict is expected later in December. 

On a related topic, here is a paper by Minnesota CrimProf Oren Gross, "Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience" and here is "Torture" written by Loyola CrimProf Marcy Strauss. But of course, torture is not the precise problem presented in the German case, because there is a big difference between threats of torture and torture.  See, e.g., Arizona Revised Statutes section 13-407(A) which permits threats of deadly force to terminate a trespass, but not the actual use of deadly force. In many cases, a successful, empty threat of deadly force would be better than actual use of lawful, non-deadly force; I'd rather have cops make peaceful arrests, for example, by threatening to shoot a resisting subject rather than requiring them to use a nightstick, mace or Taser. [Jack Chin]