01 March 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.


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).


shg said...

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

ParatrooperJJ said...

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.

Ken Lammers said...

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.

ParatrooperJJ said...

Thanks Ken!

Ken Lammers said...


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?