Sherry F. Colb

The Miranda Right to Counsel Shrinks at the Supreme Court

By SHERRY F. COLB
Wednesday, June 23, 2010

Earlier this year, the U.S. Supreme Court held, in Maryland v. Shatzer, that after an incarcerated prisoner invokes his Miranda right to counsel, police may still re-approach him with new Miranda warnings if at least two weeks have passed since he was last in an interrogation setting.

The Court's theory for this ruling is that an incarcerated prisoner living in the general prison population has resumed his normal life and is therefore not in "custody," for Miranda purposes. Accordingly, the Court found, the coerciveness of the custodial setting in which the suspect had first received his warnings, and in response to which he invoked his right to counsel, has had a chance to dissipate and no longer warrants the presumption of coercion otherwise available to a suspect in custody who has requested a lawyer.

In this column, I will evaluate -- and ultimately question -- the soundness of the reasoning behind the Court's decision.

The Background Law

As virtually everyone who has watched television in the last four decades knows, the U.S. Supreme Court decided in 1966, in Miranda v. Arizona, that when law enforcement officials have a suspect in custody, they must read her warnings before subjecting her to interrogation.

One of the warnings informs the suspect of her right to counsel (which extends to the indigent, for whom a free attorney will be appointed). Though this point is often not explicit in the warnings, the right to counsel endows the suspect with a right -- upon request -- to have an attorney by her side during interrogation.

Further developing the Miranda right to counsel, in 1981, the Court decided Edwards v. Arizona. There the Justices articulated what must happen if a suspect expressly asks for a lawyer. The Court ruled that once a suspect in custody invokes her right to counsel, police must stop interrogating her unless and until counsel is present.

Then, in 1990, in Minnick v. Mississippi, the Court found that even if a suspect in custody did have a meeting with an attorney after requesting one, her prior invocation of the right to counsel still bars the police from re-approaching her with new Miranda warnings outside the presence of counsel. By saying "I want a lawyer," then, a suspect communicates her sense that she is ill-equipped to handle police questioning without an attorney present with her. This communication applies to a subsequent encounter with the police, regardless of whether she has consulted an attorney in the interim. Once she asks for a lawyer, unless the suspect herself initiates further conversation with the police about suspected crimes, the Court required that police leave her alone, so long as her lawyer is not present.

Under the precedents, suspects feeling vulnerable in the face of custodial police interrogation have long had two options -- they could assert the right to remain silent and thereby terminate the current interrogation, or they could assert the right to counsel and thereby terminate all interrogation outside the presence of counsel. This meant that the more powerful invocation, from the suspect's perspective, was of the right to counsel. For purposes of Miranda, silence might be temporary, but counsel is forever.

In the shadow of the right-to-counsel decisions, however, lower courts concluded that invoking counsel does not really mean that police may truly never approach a suspect in custody who has, at some previous point, asked for a lawyer. What if, for example, a suspect in custody invoked counsel and was later released from custody before going back to jail? Surely, his earlier invocation of counsel could not mean that in future arrests, police could never read him his Miranda warnings and question him.

Lower courts thus developed a "break in custody" doctrine that held, essentially, that a custodial suspect's invocations of counsel would expire if there were a break in custody. Future interrogators would thus be allowed to treat a suspect in custody (who had, prior to the break in custody, invoked the right to counsel) just like any suspect newly in custody, rather than having to honor an earlier invocation of counsel and avoid all interrogation in the absence of initiation by the suspect.

Shatzer's Case and the Court's Recent Ruling

As the majority in the Court's recent Shatzer ruling recounts, in 2003, Michael Blaine Shatzer, Sr. was serving time in a correctional institution for a child-sexual-abuse offense. While he was serving his sentence, it came to light that Shatzer might also have sexually abused his own three-year-old son. Detective Shane Blankenship, assigned to investigate this allegation of abuse, approached Shatzer in prison, read him his Miranda warnings, obtained a waiver, and began interviewing him about the crime against his son. When Shatzer realized that the questions would not be about the crime for which he was already incarcerated, but for a different, suspected offense, he said that he would not speak without an attorney. The detective ended the interview then, as Edwards required him to do.

Two-and-a-half years later, the social worker who had first referred the matter to the police department brought more specific allegations of Shatzer's sexual abuse of his son to the department. A detective and the social worker first interviewed the alleged victim, and then went to the prison in which Shatzer was living and interviewed him. The detective read Shatzer his Miranda warnings, and Shatzer gave a written waiver of his rights. Following this and a second interrogation (which included a consensual polygraph examination), Shatzer gave incriminating statements to the police. After doing so, Shatzer asked for an attorney, and the detective promptly stopped interrogating him.

When he was charged with several offenses in connection with the abuse of his son, Shatzer moved to suppress his confession. He claimed that detectives had violated Edwards by approaching Shatzer with Miranda warnings and initiating interrogation after he had invoked his right to counsel two-and-a-half years earlier. The trial judge denied the motion. Shatzer then waived his right to jury trial in favor of a bench (judge) trial based on an agreed statement of facts. The trial judge found Shatzer guilty of sexual child abuse of his son.

On appeal, however, the Court of Appeals of Maryland reversed and remanded, finding that Shatzer's confession should have been suppressed under Edwards v. Arizona. According to the Court of Appeals, the passage of time alone did not trigger the "break in custody" exception to Edwards, even assuming that there were such an exception.

The U.S Supreme Court Steps In

The U.S. Supreme Court granted review in Shatzer's case to resolve the question whether there is, in fact, a "break in custody" exception to the Edwards rule, and whether -- if there is such an exception -- it applies to a situation like Shatzer's, in which the "break in custody" does not include an actual release from incarceration.

Answering both questions "Yes," the Supreme Court held that when an incarcerated suspect who has invoked his right to counsel is able to exit the interrogation setting ("investigative custody") for at least fourteen days, the involuntariness presumption associated with Edwards expires, and police may re-approach the prisoner with Miranda warnings and interrogate him.

On the particular facts of Shatzer, the ruling arguably makes sense. After all, Shatzer had not been interrogated in two-and-a-half years. Thus, it may have been reasonable for the police to assume that approaching him now would not feel to him like badgering, or like a failure to pay attention to his earlier invocation of counsel.

Indeed, police could have assumed that Shatzer had forgotten his earlier invocation of counsel entirely. Furthermore, if Shatzer did remember asking for a lawyer, he would likely have also recalled that the invocation led to a prolonged period of freedom from interrogation, which he could presumably renew by reasserting his right to counsel. Having to say "I want a lawyer" every two-and-a-half years to avoid police interrogation hardly seems unduly burdensome.

Note, however, that the majority in Shatzer did not rely on the fact that two-and-a-half years had passed between the suspect's invocation of counsel and the re-Mirandizing that he later experienced. Instead, the Court characterized the hiatus between police interviews as a "break in custody" that lasted fourteen days or more and reasoned that, therefore, Shatzer's "change of heart is less likely attributable to 'badgering' than it is to the fact that further deliberation in familiar surroundings has caused him to believe (rightly or wrongly) that cooperating with the investigation is in his interest."

Incarceration Viewed as Something Other Than Miranda Custody

The decision in Shatzer is, one might say, more remarkable for its dicta (that is, its remarks that were not essential to the outcome of the case) than for its holding. Had the Court said simply that police may re-approach a suspect after two-and-a-half years and read him Miranda warnings, despite his having previously invoked his right to counsel, few would have been shocked by this result. The Court's dicta, by contrast, classify a person who is incarcerated in a prison as not being in custody for Miranda purposes. For the very first time, in other words, the Court says that someone who lives as a prisoner in a correctional facility is, for Miranda purposes, just like someone who lives freely on the outside.

The language the Court uses is particularly noteworthy. It describes the suspect who "has returned to his normal life for some time before the later attempted interrogation." Fourteen days of life in the general prison population "provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody," the Court reasons. In so writing, Justice Scalia, on behalf of a majority of the Supreme Court, implies that prisoners exercise a reasonable level of autonomy over their lives, socialize with friends, communicate regularly with the outside world, and otherwise enjoy freedom from custody.

Though Justice Scalia says he is not "minimizing the harsh realities of incarceration," he does precisely that by describing prison life -- a punishment that officially involves a profound and intentional deprivation of liberty and unofficially entails subjection to violence, intimidation, loneliness, stench, and the risk of serious illness -- as something other than "custody."

In response to earlier holdings indicating that custody involves "a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest," Justice Scalia asserts that "the freedom-of-movement test identifies only a necessary and not a sufficient condition for Miranda custody." In other words, according to Justice Scalia, a person must lack freedom of movement to qualify as being in "custody" for Miranda purposes, but lacking freedom of movement is not, in and of itself, sufficient to constitute Miranda "custody."

The bad news in the Court's application of its stingy custody standard in Shatzer may be of an inchoate sort. It is that a majority of the Supreme Court appears to be comfortable living with a fiction. Here, the fiction is that a person serving prison time has returned to a normal sort of life in which he can socialize and get advice and support from friends. Time will tell what concrete harmful consequences will follow from this fiction. For now, it represents yet another example of a Court that is so out of touch with reality that it believes that prison is in some sense a normal and ordinary place to live.


Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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