Testing the Outer Limits of the Edwards Rule: Maryland v. Shatzer (Dripps & Kamisar)

Because Miranda was the centerpiece of the Warren Court’s “revolution in American criminal procedure,” most Court-watchers expected the Burger Court to treat the famous case unkindly.  As a general matter, the Burger Court did not surprise them.  But Edwards v. Arizona, 451 U.S. 377 (1981), was a striking exception.

Sharply distinguishing Michigan v. Mosley, 423 U.S. 96 (1975) (which involved a suspect who asserted his right to remain silent), the Edwards Court held that when a suspect asserts his right to counsel, the police cannot try again.  Under these circumstances, observed Justice White for the majority, a valid waiver of the suspect’s right to counsel “cannot be established by showing only that [the suspect] responded to further police-initiated custodial interrogation even if he has been advised of his rights again.”  When a suspect asserts his right to counsel, he has “expressed his desire to deal with the police only through counsel.”  Therefore, he cannot be questioned again “until counsel has been made available to him, unless the suspect himself initiates further communication, exchanges or conversation with the police” (emphasis added).

A few years later, in Arizona v. Roberson, 486 U.S. 675 (1988), the Court took the Edwards rule a step further.  Rejecting the argument that it frequently happens that a custodial suspect is wanted for questioning with respect to crimes unrelated to the one for which he has been apprehended and that denying the police access to a suspect in this situation would inflict a heavy blow on law enforcement, a 6-2 majority, per Stevens, J., held that Edwards still applies and therefore the police cannot even initiate interrogation about crimes other than the one for which the suspect has invoked his right to counsel.

Two years later, the Court, this time speaking through Justice Kennedy, expanded the Edwards rule still further.  In Minnick v. Mississippi, 498 U.S. 146 (1990), the Court held that Edwards’s protection does not cease even when the person who has asked for a lawyer has been allowed to meet with one.

The Edwards rule, the Minnick Court told us, “ensures that any statement is not the result of coercive pressures.”  The proposed exception to Edwards would “undermine the advantages flowing from Edwards’s ‘clear and unequivocal’ character.”  Would a three-minute phone conversation suffice?  Would a phone call to the suspect saying that his lawyer was in route suffice?

Next Monday, October 5th, the U.S. Supreme Court will hear oral argument in another case involving the scope of the Edwards rule, a case called Maryland v. Shatzer.  This case raises such questions as:  How many days or weeks or months after the suspect has asserted his right to counsel does the Edwards protection last?  Does the Edwards rule continue to protect the suspect who has asserted his right to counsel unless and until there is a “break” in custody (a significant change in circumstances before the police try again to question the suspect)?  Or at some point does the mere passage of time bring Edwards’s protection to an end?

The facts in Shatzer read almost like a question on a law professor’s criminal procedure exam:

In August, 2003, a detective met with the defendant, Michael Shatzer, who was incarcerated in a state correctional facility (on an unrelated crime) to question him about a report that he had sexually abused his 3-year old son.  When Shatzer refused to talk to the detective without a lawyer being present, the questioning was terminated.

The police closed the investigation some time in 2003.  However, in February 2006, when Shatzer’s son was able to make more specific allegations, because he was now older, the police department opened a new investigation.  A different detective was assigned the case.  The following month the new detective met with Shatzer, who was still incarcerated within the general prison population, but in a different correctional facility.

At the March 2006 meeting, Shatzer voiced surprise at the renewed questioning on the matter involving his son.  He told the detective he had assumed that the investigation had long since been closed.  The detective responded that the police had decided to reopen the investigation because of new evidence.  The detective then advised Shatzer of his Miranda rights and obtained a waiver of these rights.  At no time did Shatzer indicate that he wanted to talk to an attorney.  Shatzer then made some incriminating statements which were used against him when he was prosecuted for, and convicted of, sexual child abuse.

So two and a half years after the defendant had asserted his right to counsel (31 months to be more exact), the police tried again and this time they succeeded in getting the defendant to talk to them.  Or did they succeed?  Can Edwards’s protection possibly last this long?

The trial court did not think so, ruling that there was “a break in custody for Miranda purposes” because of the great length of time between the first and second police attempts to get Shatzer to talk to them.  This seems a questionable use of the “break in custody” exception.  Shatzer had not been released from custody since his first meeting with the police.  Nor had he been convicted and sentenced for sexually abusing his son since his first meeting with the police.

The Maryland Court of Appeals reversed.  It was unable to find any case that relied “solely upon the passage of time factor standing alone” (emphasis in the original) to conclude that the Edwards protection had expired.  Nor was the court impressed by the argument that a “break in custody” occurred when Shatzer was released back into the general prison population in between the two meetings with the police.

The Maryland Court of Appeals may have gone astray by dwelling too long on the “break in custody” exception.  The Edwards rule was designed to prevent the police from pestering or badgering a suspect who has asserted his right to counsel at his first meeting with the police.  But two interrogations in 31 months can hardly be called “badgering” or “pestering.”  Why not say that when so much time has elapsed between the first and second meetings with the police that no reasonable custodial suspect could possibly believe that he was being badgered by the police or that the police were trying to wear him down, the Edwards protection should expire?  Mr. Shatzer undoubtedly will argue that there is a need for a bright-line rule in this area.  Two and a half years may seem long enough, but what about two and a half weeks or two and a half days?  Absent a break in custody, i.e., a substantial change in circumstances, Shatzer will maintain, the Edwards protection should remain in effect.

However, it is most unlikely that a majority of the present U.S. Supreme Court will tell us that Edwards’s protection never wears out – that it has no time limits at all.  The odds are high that the Court will say that no reasonable suspect could possibly believe that the police were pestering him if they had “tried again” 31 months after their first meeting with the suspect.  Indeed, it would not be surprising if at least two or three members of the Supreme Court went further and urged the overruling of either Minnick or Roberson or both.

If the Court does say that at some point the mere passage of time is enough to end Edwards’s protections, there may be some hard cases to deal with in the years ahead.  But it is hard to believe that they will be any harder than such issues as what constitutes “interrogation” or “custody” for Miranda purposes.  Recall for example, the 5-4 split in Yarborough v. Alvarado, 541 U.S. 652 (1994) over whether a 17 ½-year-old defendant was in “custody” when his parents brought him to the sheriff’s station and then waited in the lobby while a detective took their son to a small room where only the two of them were present.

DD & YK