29 March 2010

Intent? We don't need no stinking Intent!

Tomorrow, I'm going to be doing a presentation at the local Bench-Bar conference on the interesting cases of the last year. While prepping yesterday, I reread a case from the Virginia Court of Appeals, Herron v. Commonwealth. In Herron the defendant was arrested and taken to jail. On the way, the officer asked Herron several times if he had drugs and each time Herron said that he did not. Of course, once he got to jail and was searched, Herron had drugs. He was convicted of bringing drugs into a jail.

At trial, and on appeal, Herron argued that he had a right not to incriminate himself when he told the officer he had no drugs and that he didn't have any intent to bring the drugs into the jail because he didn't have any intent to go to jail - he was put in jail against his will.

Personally, I would have handled this in a fairly typical fashion. A standard jury instruction (and case law) in Virginia states that "A person can be inferred to intend the natural consequences of his actions." He doesn't have tell the officer anything, but when he doesn't and ends up in jail with drugs, he intended to go into the jail with the drugs rather than get charged with simple possession by the officer. I think this is a pretty straight forward analysis. However, the Court of Appeals chose a different path.

The Virginia Court of Appeals shoots down the 5th Amendment argument in a manner similar to what I laid out above (you can remain silent, but that doesn't mean you aren't guilty of your acts), but the really interesting part of the decision is about whether Herron had intent to carry the drugs into the jail.

Here the Court of Appeals goes off onto a tangent which I would not have expected from this case. Relying on Esteban v. Commonwealth, from the Virginia Supreme Court, the Court of Appeals states that because this statute was not in the common law and the General Assembly did not write an intent into the statute it is a strict liability criminal statute and Herron's intent is irrelevant.

This is a disturbing trend in Virginia criminal law. Prior to Esteban declaration of criminal law strict liability there was a solid argument based both in case law and statutes that there must be intent in all criminal law statutes. In fact, here's the argument as the Virginia Supreme Court received it in Esteban (a teacher convicted for bringing a pistol to school after she forgot it was in her bag):
At trial, the instruction in issue would have required the Commonwealth to prove that defendant "knew she possessed the firearm." The defendant contends the trial court erred in refusing the instruction because, she argues, mens rea is an element of this statutory offense.

In support of her argument, the defendant refers to Code § 1-10, which provides that the common law of England, "insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly." See Weishaupt v. Commonwealth, 227 Va. 389, 399-400, 315 S.E.2d 847, 852 (1984).

The defendant relies upon the proposition, set forth in Wicks v. Charlottesville, 215 Va. 274, 276, 208 S.E.2d 752, 755 (1974), that a statute must be "read along with the provisions of the common law, and the latter will be read into the statute unless it clearly appears from express language or by necessary implication that the purpose of the statute was to change the common law." This is because the General Assembly "is presumed to have known and to have had the common law in mind in the enactment of a statute." Id.

Continuing, the defendant relies upon the following statement in Parrish v. Commonwealth, 81 Va. 1, 14 (1884), that "whenever a statute makes any offence [a] felony, it incidentally gives it all the properties of a felony at common law." The defendant points out that the requirement of some mens rea for a crime was deeply embedded in the common law, and that the existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence, citing Staples v. United States, 511 U.S. 600, 605, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994).

Thus, defendant contends, because the offense charged here is a felony, mens rea must be read into the statute as an element of the offense, even though the statute does not include an express mens rea element.
That is a well thought out, well reasoned, and persuasive argument for the inclusion of intent in every criminal law statute. And yet, despite this smart, cogent argument the Virginia Supreme Court created the strict liability criminal law statute - or at least stated that the General Assembly could do so as long as the crime in question did not have common law roots.

It's a terrible precedent, based upon a shaky line of reasoning. The two primary Virginia cases upon which this was based were Maye v. Commonwealth, JUN72, 213 Va. 48, and Makarov v. Commonwealth, OCT76, VaSC No. 751263. In Maye the VaSC found a statute without an intent element constitutional because:
A claim that a statute on its face contains no requirement of Mens rea or Scienter is no ground for holding the statute unconstitutional since such requirement will be read into the statute by the court when it appears the legislature implicitly intended that it must be proved.
In Makarov the VaSC found a statute unconstitutional because it lacked an intent element, explaining that in Maye:
We upheld the constitutionality of the enactment and decided that a requirement of Mens rea or Scienter should be read into the statute because it appeared the General Assembly 'implicitly intended' that such be proved. 213 Va. at 49, 189 S.E.2d at 351. There, we construed a statute specifically dealing [217 Va. 386] with larceny, a crime which presupposes a Mens rea. But here the statute on its face deals with a naked civil debt and we cannot say the General Assembly implicitly meant to include proof of an intent to defraud as an essential element of the offense.
If you turn your head at the right angle and squint, you can use these cases to reach the result the VaSC reached in Esteban. That is to say, there is no intent required in a criminal offense unless there was an intent required in the offense under the common law as it stood in 1776 (independence from British rule leading to a freezing of the common law). The General Assembly might grace the citizens of Virginia with some sort of intent in any statute it passed after 1776, but nothing keeps the General Assembly from passing a law which states it is illegal to roll over in one's sleep and then arresting us in job lots when we do so while we are unconscious.

But here we come full circle, back to the case we started with, Herron. The Virginia Court of Appeals partially overrules the VaSC's Esteban holding. Recall that in Esteban the VaSC rejected the Commonwealth being required to prove she "knew she possessed the firearm." In Herron the VaApp adopts the "voluntary act" test, even in strict liability crimes:
[E]ven if [a statute] is a strict liability offense, the Commonwealth still must prove that appellant committed a voluntary act. All crimes of affirmative action, even strict liability crimes, require something in the way of a mental element-at least an intention to make the bodily movement which constitutes the act which the crime requires.
That doesn't mesh with the Esteban opinion. If the school teacher did not know she possessed the firearm, she couldn't have intended to do the "voluntary act" of carrying it into the school. Thus the standard for strict liability in the Virginia Supreme Court is absolute strict liability while the standard for strict liability in the Virginia Court of Appeals is a limited strict liability.

I hope that all this nonsense gets overturned some day or that the General Assembly writes a statue requiring intent in each and every criminal offense. But, if we have to have strict liability criminal statutes, I prefer the Court of Appeals' version to that of the Supreme Court.
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25 March 2010

Reviewing the Kindle

Recently, I bought the Kindle. I had thought of buying various different readers, but eventually went with the Kindle because the Sony Touch was slightly more expensive and there has been some talk that the Touch isn't quite as sharp. I bought the smaller one because I can't picture having the larger screen without the ability to use a stylus to write notes. If I'd bought a larger screen ereader I would have gone with Sony's for that reason and its lower price. The Kindle, at $259. was the best price for an ereader that I trust.

The Good: When you use the Kindle for what it is built for it does an amazing job. It is the perfect replacement for paperbacks. The e-ink is crystal clear and it's not another glowing screen to wear out your eyes. You can adjust the font size and I did bump it up a size because of my eyes which were never so great and which have been worn out by too much staring at glowing screens; if you have younger eyes you may bump it down a size to get more on one screen. You can hold the tablet easily in one hand and click the button to change the page with your thumb. Personally, I suggest that you don't get one of the many covers which make the Kindle look like a book and will require you to use both hands like a book. It just works perfectly as a one hand device.

Prices at Amazon are generally very reasonable. Amazon held the line at $9.99 maximum for all e-books until recently. When Apple sold consumers down the river in order to get publishers to come to its bookstore for the iPad Amazon was forced to give ground. Still, I think the highest price I saw was $14.99 and I found a number of classic books, such as Blackstone, for $.99 (I even found Moby Dick available free of charge). Outside of Amazon, other companies can provide digital books which work on the Kindle through various formats. Some companies are reasonable about this and some are insane enough to think that I'll pay the price of a hardbound book even if they haven't paid for ink or paper or shipping or the profit the brick and mortar would have taken.

All-in-all, once ereaders come down to a reasonable price (they really should be $99 or lower), there will be no reason for anyone to buy a paperback anymore except sheer stubbornness. The only reason to buy hardbound books will be to have the book on a shelf to impress people.

The Bad: The thing I'm most upset about has nothing to do with Amazon. It has to do with legal publishers. This would be a good medium for legal trial books - the ones companies put out every year for practitioners to take to court with them so that they are able to make arguments on the fly. Specifically, I checked for Criminal Offenses and Defense in Virginia, The Law of Evidence in Virginia (usually called "Friend"), Police, Crimes and Offenses and Motor Vehicle Laws of Virginia (yearly selected codes for crime and traffic), and the Annotated codes (both Lexis and West). None of these were available. Neither West nor Lexis had any useful books which could be downloaded on the Kindle. Last year, West announced that it was putting 30 of its books out for the Kindle, but there wasn't a single one of them which was really of use.

The Other: PDF's don't work well on the Kindle; it shrinks them in size and can make them very difficult to read. I can't really complain about this because if I'd wanted full size I could have bought one of the larger ereaders.

I also can't use the wireless downloading of books, but this is not Amazon's fault. We just have very limited wireless service here in the mountains. I was able to get the wireless to work over in a town in Kentucky, but didn't download any books (just checked the internet). Not having wireless isn't all that bad, all you do is download a book from the Amazon site to your computer and transfer it via a USB cord.

The internet browser on the Kindle is primitive. It works about like a phone browser on a non-smart phone. If a site is optimized for mobile browsers the site is easily read; if the site isn't optimized for it (or has flash) it's just not going to work very well. Basically, you should be able to read well put together blogs and newspapers.

The MP3 player is basic. It works. It can also play music while you read books. My Creative Zen is more versatile and smaller, so I use it instead.

Versus the iPad: There have no shortage of stories predicting the death of the Kindle because of the coming iPad. At this point the Apple reality distortion field is in full effect, so it's hard to tell. The one actual bit of research I've been able to find indicates that the Kindle is actually doing better than the iPad.



I wouldn't be surprised if this continues. I know that since I've started carrying mine their have been a lot of people showing interest in it and most of them are people I don't see buying an iPad (or any other tablet computer). My main hope is that the competition from multi-purpose tablets will drive ereaders down to where their pricing ought to be, perhaps $79.99 for the smaller and $124.99 for the larger unit. It'd also be nice if they finally went to color e-ink. I hope they don't try to change from single focus devices to multi-focus. If the ereader providers try to compete at that level they'll lose.

Conclusion: As something to read with, the Kindle is easily better than a paperback book. In the end, even at $259, it will pay for itself in money I save on books (assuming the current pricing scheme holds) in about 18 months, but it is really too expensive to achieve the level of market penetration it should be getting. If you can afford one buy it.

[addendum] cross posted - with some improvements at my office's blog "The Digital Office".

22 March 2010

Ego Busting 101

Our local court uses video records, so you can see the arguments you made. Recently, I was in a rather intense argument after which the judge agreed to do what I asked. I felt pretty good about it and 3 or 4 people told me how well I did. So, I decided to get a copy of it.

Maybe some of the rest of you are so telegenic and make arguments so perfectly that watching yourself just feeds your ego. Me? Not so much.

First of all, if there is something that is the opposite of telegenic I'm that. Short, overly round, and wearing goofy glasses - they're not going to be modeling any TV drama attorneys after me and nobody who isn't a juror or judge should be forced to look at me too long. Yeesh.

Then there was the argument. I stumbled. I stuttered. I stopped in mid-sentence. I made statements which made perfect sense to me (and the defense attorney) because I know the facts, but which had to leave the judge thinking, "Huh?" AAAaaarrrgggg!

Now, I have been told that my arguments work better when witnessed in person rather than watched on video. I hope so. Good gracious, I hope so.
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18 March 2010

Who are these Crummy Defense Attorneys?

A big topic around the criminal defense blawgs recently was how defendants will hire incompetent attorneys and just be tickled pink as that attorney walks them right off the plank and into the ocean. via Divorce Discourse, My Law License, Simple Justice, & Crime and Federalism.

We've all seen these guys and rather than rehash why defendants are drawn to them, I thought I'd try to break down who they are.

Sturm und Drang: This guy has figured out that the best strategy for attracting clients is to be LOUD AND CONFRONTATIONAL. There is no give in this guy. Everything has got to be a trial and he will holler and fuss and object and object and object and object and his client will be convicted of driving without a license anyway. Then, the thoroughly peeved prosecutor will ask the thoroughly peeved judge to throw the book at his client. Defendant could have gotten a weekend in jail if the attorney had just had a short, civilized discussion with the prosecutor before they went before they went to the bench - now he's getting a month. This guy doesn't care. He knows that 50% of the people in the gallery were wowed by him fighting tooth and nail for his client and that they don't understand how it hurt the client. He knows this will bring business and big fees.

I Believe: A True Believer, especially a young True Believer, is dangerous for her clients. She's got a Cause. It can be to stop the oppression of the downtrodden. It can be to force the rule of law to be followed in Pitcairn County. It can be to prove to the world that Judge Smith isn't competent to be a judge. She's got long term goals and she's fired up about them. The problem is that she takes her clients with her on her quest to cure the world's ills (or at least those of the judicial system). Defendants usually have fairly short term problems and she isn't doing one of them a whole lot of good when she uses him as her gateway to make a novel argument that the larceny statute is an unconstitutional violation of the 13th Amendment. The defendants see her fighting tooth and nail and hear all these wonderful arguments - just like Law & Order - and think they're getting the best representation in the world.

Used to Be: This guy had an amazing string of victories once upon a time. He built a well deserved reputation as one of the best. The problem is that that was 20-30 years ago. Nowadays, he doesn't understand electronic research, he doesn't keep up with new cases, and the prosecutors aren't all that worried about him anymore. Still, he's been the high priced, high rep lawyer for so long that people keep going in and handing him tons of money.

The Only: This guy is one of the only two lawyers who have done criminal law in Pitcairn county for the last 20 years. He's represented entire clans - grandfather, fathers, sons, grandsons & granddaughters - as each generation makes it's way into court and on to jail. Every once in a while he's looked at the books and made some arguments, but usually he's just there to ease his clients comfortably through the system. And they go to him without even thinking about it. He's one of them - as opposed to those city lawyers who come out here and get in shouting matches with Judge Smith - and he's the guy they've been seeing in the courthouse every time they go there for the last 20 years. He must know what he's doing.

Miss Empathy: She makes illogical arguments in court, makes ridiculous objections, and does long meaningless cross examinations. Worse, she can't negotiate with the prosecutor and officers worth a darn. Her client "didn't really mean to do it" and was "led astray by her friends" and is a nice boy who comes from a good God-fearing family." She believes this and is emotionally invested in her client. The problem is, she believed it for the last 300 clients just as strongly and nobody trusts her judgement. Because she tends to harass prosecutors and officers they try to avoid her if at all possible. At the end of the trial she's out in the hall talking to Mom about her son's jail sentence and she's visibly more upset about it than Mom is; in fact, you'll sometimes see family members trying to comfort and talk her down. Defendants, and their families, love her because she obviously cares so much.

In the Glow: This guy is the partner, associate, or office sharer of a prominent lawyer. As such, he benefits from the Big Guy's reputation. When people can't afford Big Guy's fee or need someone NOW and Big Guy isn't available, they end up with this guy. After all, he's connected to Big Guy and therefore the defendant's going to get Big Guy's experience at this lawyer's rates (because this guy is going to talk to Big Guy and follow his advice). The they get to court and this guy is a civil attorney who dabbles in criminal law or a kid six months post Bar passage or they guy Big Guy keeps around out of loyalty because he gave Big Guy office space 20 years ago. Still, the defendant's happy because he's represented by someone out of Big Guy Law Offices (even if it's not Mr. Big himself).

MegaFirm International: The son of the COO of IBM gets a shoplifting charge. He turns to the only lawyers he knows, those of MegaFirm International, Inc., PSC, LLP - the ones who charge his corporation $750 an hour to write contracts. The next month a partner shows up in court with a hair styling alone which cost more than the combined value of the suits of all the trial lawyers in the room. He's had associates research all the shoplifting laws in the entire US for the last 20 years (at a bargain basement price of merely $250 per hour). They've briefed him and he has come to court with that one perfect case out of Wyoming. He doesn't know that if he just walked over to the prosecutor and asked the first time shoplifting would be taken under advisement for six months and dismissed after shoplifting classes and 50 hours community service. And he seems a little befuddled when Judge Smith just won't give any credit to that case out Cheyenne's District Court. Still, the COO is impressed and knows that his son has the only real lawyer in the courtroom.

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Of course, these are not mutually exclusive categories. Most of these attorneys range across a number of them. While these are surely not all, they are all the categories I can think of this morning. And, none of these are based upon people I practice with now. I can, but won't, point to people in places I used to practice as models for every category above.

16 March 2010

In the News

1) Great, the youngins are going to be huff zombies.

2) Solicit a child, get 100 years.

3) If you went to prison before 1995 you are eligible for parole, but you ain't getting it.

4) If you can't be tried because you're incompetent it doesn't get you set free.

5) I don't car how stupid the other driver is - don't do this.

15 March 2010

In the News

1) You gotta luv local papers. Read the typical "Modern Law Enforcement in a Modern World" bit, then go down and read the comments from locals who are just going off about everything they think is wrong with law enforcement in their county.

2) Come into a Virginia house - get shot. Who needs the castle doctrine?

3) I've heard of padding a bra, but this is ridiculous.

4) Eluding arrest is not a violent crime as far the feds are concerned.

5) Good news lawyers in Virginia's Western Federal District! Soon you'll be able to tell the press what went on in that bench conference in the middle of the trial.

R.I.P. HB1394

For those of you who don't know, HB1394 (previously addressed here) passed the House of Delegates. However, the Senate sent it straight to its Committee for Courts of Justice and passed it by indefinitely.

In case you don't speak legislativese, that means the Senate killed it.

08 March 2010

House Bill 1394

No. I DO NOT know what the final disposition of HB1394 will be. HB1393, which was basically the same bill, was voted down in committee after the governor asked for it and the majority leader introduced it. Five days later it was reintroduced by a very junior Delegate - again at the governor's request. Here's the history as the General Assembly's website has it this morning.
Summary as introduced:

Appointment of counsel; imposition of penalty of incarceration in certain misdemeanor cases. Provides that if a criminal charge against an accused is a misdemeanor or in a class of misdemeanors the penalty for which may be incarceration, a penalty of incarceration may be imposed and an attorney appointed by a court in the case of indigence if the prosecuting attorney advises the court that incarceration remains an option in such class of cases, or in the instant case. The bill also provides that if the prosecuting attorney advises the court that he waives the option of the imposition of a sentence of incarceration in such case or class of cases, the court shall try the case without appointing counsel, and in such event no sentence of incarceration shall be imposed.

Full text:
02/24/10 House: Presented and ordered printed 10105541D pdf
03/03/10 House: Committee substitute printed 10105748D-H1 pdf

Status:
02/24/10 House: Introduced at the request of Governor
02/24/10 House: Presented and ordered printed 10105541D
02/24/10 House: Referred to Committee for Courts of Justice
02/25/10 House: Assigned Courts sub: #1 Criminal
03/03/10 House: Reported from Courts of Justice with substitute (14-Y 5-N)
03/03/10 House: Committee substitute printed 10105748D-H1
03/03/10 House: Referred to Committee on Appropriations
03/04/10 House: Assigned App. sub: General Government
I cannot find a similar bill in the Senate and, as the Senators and Delegates seem to have extremely different views of how to balance the budget, do not know if it could pass a vote in the Senate. We'll know in the next week or so.

And now to address all the points which I've been told by various people over the last two weeks:

Yes, I realize this law will require Commonwealth Attorneys to know everything about a case at the initial court appearance, which will probably mean that smaller offices will just have to leave blanket notices with the judge that they will prosecute everything. Larger offices may be able to assign one assistant commonwealth attorney as some sort of intake officer either sitting at the magistrate office or getting a list every morning from the magistrate and calling officers trying to get information on the cases.

Yes, I also realize what this will do to the defense bar. If it works as intended it will cut out a lot of low level cases which will make it even harder for new attorneys to start doing criminal defense work. It will also make it harder for people who rely on the misdemeanor appointed cases to flesh out their income and force more people to try to get felony cases, thus making money scarcer for everyone. Yes, I've heard the rumor that waivers are not being funded this year, meaning that felonies - especially jury trials and serious offenses such as non-capital murder - are going to become money drains again (subject once again to the hard fee cap). No, I do not know how long it will take for the lawsuit to gear back up.

Yes, I realize this will end up with a lot of people convicted of 1st or 2d offenses without knowledge that a subsequent conviction will carry mandatory jail/prison time.

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Interestingly, this bill now comes with an expiration date: 01 July 2013.


[addendum] Generally I would avoid something like this like the plague because it is too political. However, I keep getting the same questions and arguments over and over about this bill, so I wanted to put it out what little knowledge I have for everyone to see. I do not have any great insider knowledge about any of this and suggest that you go to one of the Virginia political blogs if you are looking for an indepth political discussion of this matter.
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In the News

1) Robbing a German poker tournament in the middle of the day.

2) No tweeting for jurors.

3) How bad must this guy's fake DEA outfit have been?

4) A regional jail gone bad in Kentucky?

5) The article doesn't really tell us what happened, but the comments are interesting. Did Lexington police wake a drunk guy at night in his room in the fraternity house and then arrest him for resisting? Will the whole thing get swept under the rug?

02 March 2010

In the News

1) Virginia doesn't grant many geriatric paroles. (there's a shock for you)

2) Virginia Supreme Court in the News: A person can't be thrown out of a drug program and convicted without a hearing on his expulsion. Not sure how I feel on this one. As long as the plea agreement between the Commonwealth and the defendant remains in place (usually = complete program or get 6 months) I don't have too much of a problem with it. If a person was kicked out for something ridiculous like wearing purple socks, he should have a chance to complete the program. Of course, it won't be used that way. Every time some Yahoo gets dumped out of a program because he tested dirty 5 times or slugged a counselor he'll be in court arguing that the plea agreement is too harsh and some judges will violate the terms of the plea.

3) One of the many ways the Virginia General Assembly is considering balancing the budget is to raise filing fees, but not everybody's happy about it.

4) Who knew Starbucks was gun friendly? Of course, the nearest is two hours and two states away, so I shan't be testing this out any time soon.

USSC Cases from February

Right to Remain Silent

EXPIRATION OF ASSERTED RIGHT: Maryland v. Shatzer, FEB10, USSC No.08–680: (1) Once a suspect asserts his right to not speak or have an attorney present and he is released from “Miranda custody” the police cannot ask the suspect to waive his Miranda rights for 14 days. (2) Being in prison after a conviction does not count as “Miranda custody.” (3) The decision hints that being in jail awaiting trial is “Miranda custody.”

Florida v. Powell, FEB10, USSC No. 08–1175: “You have the right to talk to a lawyer before answering any of our questions. . . You have the right to use any of these rights at any time you want during this interview” told the suspect that he could demand his lawyer before answering any particular question – not just before any questions were asked.

Jury

Thaler v. Haynes, FEB10, USSC No. 09–273: In deciding a Batson motion, a judge does not need to have observed the behavior proffered as the reason for the strike.

Cruel & Unusual Punishment

Wilkins v. Gaddy, FEB10, USSC No. 08–10914: (1) The amount of harm done to a prisoner does not determine whether a beating by guards was cruel and unusual. (2) The amount of harm is relevant evidence as to whether the claimed beating is plausible.

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.

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).