Blogging Criminally For Over Ten Years



3/01/2010
What's the Expiration Date on a Constitutionally Guaranteed Right?
14 days.

Yes, you heard it first here folks, constitutional rights have a shelf life of 14 days.

So sayeth the Nine Great Legal Minds in Washington.

BUT WAIT, there's more! We now have two different kinds of custody. There's custody custody and there's Miranda custody. But custody custody might be Miranda custody if the custody custody is pretrial custody custody rather than post conviction custody custody.

It's all in Maryland v. Shatzer, handed down from the Mount last Wednesday. I'm not going to quote from the case because it engages in childish tit-for-tat with the concurrence and feeds us this gigantic imaginary straw man in order to justify itself. So, I'll just summarize the decision as my meager intellect is able to parse it.

Suspect was in a prison, serving a sentence, when an officer came to question him about an unrelated crime. Suspect asserted his right to an attorney and police officer left. Two and a half years later another police officer, prompted by some new evidence, spoke to Suspect, who was still in prison. Suspect waived his Miranda rights and made inculpatory statements leading to a new conviction. He tried to assert that his demand for an attorney to the first officer was still in effect because they'd both questioned him about the same crime and he'd never been out of custody in between.

The Supreme Court picks a totally arbitrary number out of thin air and decides that if a suspect has asserted his right to an attorney that the assertion only lasts for 14 days. After that point officers can go back and talk to the suspect again, asking him if he's willing to waive his right now. Then, if the suspect says no, the officers must wait 14 days. After that point officers can go back and talk to the suspect again, asking him if he's willing to waive his right now. Repeat ad infinitum.

As to suspect being in custody the entire time, the Court decided that he wasn't really in Miranda custody because the officers questioning him had nothing to do with the conditions under which the suspect lived his everyday life. The officers only controlled his life for that period of time they called him into a room to question him.

A part of the opinion talks about how the prior decisions in this area had all been related to pretrial custody. There's an implication that pretrial custody is Miranda custody because the matter has not been decided yet and a discussion with an officer could impact the ongoing case. However, all the cases cited seem to fall within the 14 day ban. Therefore, I'm not sure that pretrial custody is Miranda custody. I'm going to go out on a limb here and say we're going to see further litigation on this point.

MY ANALYSIS:

Let the games commence!

Actually, I'm in general agreement with the Court here. There is going to be some point where an original assertion of the right to an attorney no longer applies. For instance, if a suspect asserts his right while being questioned about a mugging, it shouldn't keep the police from questioning him about a totally unrelated murder a week later. On the same charge, I'm a little more leery than the Court. Every 14 days is just setting us up for years of further litigation. Nobody's going to go back every 14 days over a shoplifting, but in important cases that doorbell's going to be rung every 14 days like clockwork. The primary, but unprovable, suspect had best set aside the day every two weeks that officers are going to show up wherever he is. The next fight is going to be over whether 5 straight assertions of the right are enough to make it permanent, or 10, or 25, or . . . ?

If the Court had set this at a year or 6 months it would feel more like a right defended. As it is, it feels like a right begrudged.

And, yes, before anyone asks me, I will tell the officers in my County about the new rule. The courts and legislatures set the rules. We attorneys read and interpret the rules. Police have to live by them. I do my best to let them know what the rules are (even when the line keeps shifting).

Ken Lammers . . . Permalink . . . 5 comments 5 Comments:

Anonymous shg said on March 01, 2010  

Heard it here first? That's a bit of a stretch.


Anonymous ParatrooperJJ said on March 01, 2010  

Do this effect the rule that when a defendant has a lawyer appointed the DA can only talk to the defendant's lawyer and not directly to the defendant.


Blogger Ken Lammers said on March 01, 2010  

ParatrooperJJ -

That constitutional protection went away in the last term. Look on my right column and under legal theory read the post about Montejo. However, as a matter of legal ethics rules, most States will prohibit a lawyer from talking to a person who is represented, but that doesn't apply to law enforcement officers.


Anonymous ParatrooperJJ said on March 02, 2010  

Thanks Ken!


Blogger Ken Lammers said on March 02, 2010  

shg,

What? I'm not allowed a little puffery? How else am I supposed to use this social media blog to increase my presence in the minds of consumers and become richer than the Carnegies?


Post a Comment


email Ken


Ambush in Bartlette
Chapters 1 - 13


Law & Theory
Practice Tips
Specific Cases
Legal Theory

Back When I was a Defense Attorney


FEB03
Jury
Jury
JUN03
A Week in the Life
A Week in the Life
JUL03
A Week in the Life
OCT03
A Week in the Life
DEC03
A Week in the Life
JAN04
5 Events
A Needed Sign
A Week in the Life
Trial Desperation
A Week in the Life
A Week in the Life
Quick Panic
FEB04
Supress Motion
A Week in the Life
A Week in the Life
MAR04
A Week in the Life
Closing Argument
APR04
A Week in the Life
A Week in the Life
A Week in the Life
A Week in the Life
MAY04
A Week in the Life
A Week in the Life
A Week in the Life
JUN04
Chocolate Chip Marijuana
A Week in the Life
High School Critique
JUL04
A Week in the Life
Cripple v. Cop
01 Long Week
02 Long Week
03 Long Week
04 Long Week
05 Long Week
I'm a Narc
AUG04
Frustrating Day
Damn Yankee Defense
A Week in the Life
SEP04
Angry Relative
01 Long Week
OCT04
01 Long Week
02 Long Week
03 Long Week
04 Long Week
-----
01 Long Week
02 Long Week
03 Long Week
NOV04
Client Families
DEC04
01 Long Week
02 Long Week
03 Long Week
04 Long Week
05 Long Week
06 Long Week
Surprise at Prelim
Confronted
JAN05
A Sentencing Hearing
Sales Lady Visits
FEB05
Purse Search Brief
Violent Insane Client
MAR05
Affidavit of Truthfulness
Juvenile Detention Visit
Moments in the Life
Fail to Visit
APR05
Trial of the Century
MAY05
Transcript: Court Argument I Won
A Day in Court
Moments in the Life
Angry Jury Day
Angry Jury 02
JUN05
Eureka Sentencing Moment
My Own PI
Innovative Jail Phone Call
A Moment in Court
A Moment in Court
JUL05
Huh?
Raccoon Attack
AUG05
Picking on a Prosecutor Intern
Moments in the Life
SEP05
Victory by Speedy Trial
OCT05
Kicking Myself
A Day in the Life
Insane Client & 15 Deputies
Torture by Judge
A Federal Habeas
NOV05
Invisolawyer
Petition Freak Out
Moments in the Life
Moments in the Life
State Habeas
DEC05
Moments in the Life
JAN06
Jury Trial Fizzle
FEB06
A Bench Trial
Bittersweet "Victories"
A Prosecutor Tries to do Right
MAR06
What Just Happened?
Va. Worse than Conn.
Illness as a Defense Attorney
Failed Prison Visit
APR06
Heard in a Courthouse
Appellate Court Argument 01
Va. Court of Appeals
MAY06
Heard in Court
JUN06
Bad Press
Entire History of a Trial
Bad Press 02
JUL06
I Must be too Good
AUG06
Announce Becoming Prosecutor
The Last Life in a Week
Monday
Tuesday
Wednesday
Thursday
Friday

Client Communication
~~~~~~~~~~~~~~~

CYA Letter: Felony Client
CYA Letter: Appeal
-----
Dear Mr. Jailhouse Lawyer
Conversation between Inmates about Lawyers
Innocent Client Pleads Guilty
Client Parents

Time as a Prosecutor


JAN07
The New Office
FEB07
Different Court Diferent Behavior
Competency
MAR07
Cats
Ma'am I'm the Prosecutor
JUN07
I know nothing
23 Felonies
JUL07
Cross
Cross II
2d Simplest Explanation
OCT07
Jury
FEB08
CrimLaw Prosecutorial Corollary #1
MAY08
Paranoia
JUN08
Why Not Drop?
JUL09
Buy Me Dinner First
AUG09
Jury Sentencing Argument
SEP09
Is Litter Patrol Jail?
OCT09
Paperwork Closing Argument
APR10
Bubonic Bob & the Creative Judge
JUL10
Finding the Perfect Witness
APR12
Small Town Cop : Big City Lawyer
JUN12
Maturity Ain't Orange
Criminal Law

Sentencing Law and Policy
FourthAmendment
Law of Criminal Defense
CrimProf
White Collar Crime Prof
4th Circuit
...
Simple Justice
Defending People
a public defender
Underdog
Indefensible
DUIblog
Southern District of Fla.
Criminal Defense
Harris Co. Crim Justice
...
Seeking Justice
Crime and Consequences
The Chicago Syndicate
Patterico's Pontifications
The Magistrate's Blog
Trials & Tribulations
Charon QC
Changing the Court


Virginia Blogs

SW Virginia Law
Va Poli Blogs
Vivian Page
Bearing Drift
Not Larry Sabato

Worthwhile

Bloggingheads.tv
Gruntled Center
WindyPundit
day by day
The Faculty Lounge
Legal Scholarship Blog
PrawfsBlog
Justice & Drugs
Ernie the Attorney
Bag & Baggage


In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.


Tech &
Vlogs
This Week in Tech
TWIT Live
Spill.com
Tekzilla


Archive

January 2003
February 2003
March 2003
April 2003
May 2003
June 2003
July 2003
August 2003
September 2003
October 2003
November 2003
December 2003
January 2004
February 2004
March 2004
April 2004
May 2004
June 2004
July 2004
August 2004
September 2004
October 2004
November 2004
December 2004
January 2005
February 2005
March 2005
April 2005
May 2005
June 2005
July 2005
August 2005
September 2005
October 2005
November 2005
December 2005
January 2006
February 2006
March 2006
April 2006
May 2006
June 2006
July 2006
August 2006
September 2006
October 2006
November 2006
December 2006
January 2007
February 2007
March 2007
April 2007
May 2007
June 2007
July 2007
August 2007
September 2007
October 2007
November 2007
December 2007
January 2008
February 2008
March 2008
April 2008
May 2008
June 2008
July 2008
August 2008
September 2008
October 2008
November 2008
December 2008
January 2009
February 2009
March 2009
April 2009
May 2009
June 2009
July 2009
August 2009
September 2009
October 2009
November 2009
December 2009
January 2010
February 2010
March 2010
April 2010
May 2010
June 2010
July 2010
August 2010
September 2010
October 2010
November 2010
December 2010
January 2011
February 2011
March 2011
April 2011
May 2011
June 2011
July 2011
August 2011
September 2011
October 2011
November 2011
December 2011
January 2012
February 2012
March 2012
April 2012
May 2012
June 2012
July 2012
August 2012
September 2012
October 2012
November 2012
December 2012
January 2013
February 2013
March 2013
April 2013
May 2013
June 2013





NOTICE
Be advised that all
e-mails received are subject to inclusion in the Blawg. If you do not wish your name published with that e-mail make certain that you notify me in it.

Copyright

Everything herein is copyrighted by Kenneth Frank Patrick Lammers Junior. License for use of particular posts is granted so long as this site is linked to and credited. Serial republishing of all or the majority of posts on a separate website from CrimLaw is forbidden.