A Criminal Enterprise

Court-Watching: Maryland v. Shatzer

Posted in Cases, News by Bidish J. Sarma on October 6, 2009

Today was the first day of the Supreme Court’s October Term.  According to SCOTUSblog, the Court postponed the first scheduled argument of the Term – South Carolina v. North Carolina – because the two lawyers slated to argue the case both had family emergencies.  Unfortunately, I wasn’t able to get inside the Supreme Court for the case I really wanted to watch today – Maryland v. Shatzer. (I learned my lesson… don’t use the Court’s restroom before getting a card with a number to save your spot in the line).  However, I did see almost all of the second argument in Mohawk Industries, Inc. v. Carpenter.  I will write a brief post on my initial impressions of the Carpenter argument later.  I’ve reviewed the transcript from Maryland v. Shatzer, so I will share some of my observations from that here.

In Shatzer, the Supreme Court must decide whether Edwards v. Arizona – which bars police from initiating questioning with criminal suspects who have invoked their (Miranda) right to counsel at interrogation – applies to an interrogation that takes place nearly three years after the invocation.  The case presents unique facts that test will test the Court’s willingness to enforce the bright-line rules announced in Miranda and Edwards.  In 2003, the police suspected Michael Shatzer, Sr. of sexually abusing his then three year-old son.  When approached by a detective, Shatzer, who was incarcerated on another unrelated offense at the time of the interrogation, said that he would not talk to the police without a lawyer.  The detective terminated the interview.  The police shortly thereafter closed the sexual abuse investigation.  In 2006 — three years later — the police re-opened the investigation because the alleged victim was able to make more specific allegations.  At this time, the defendant waived his Miranda rights and gave a statement.  The court below ruled that the statement could not be introduced at trial.

At oral argument, the State of Maryland took the position that a “break in custody” should allow police to re-initiate questioning without providing a lawyer to the defendant who requested one:

CHIEF JUSTICE ROBERTS: Without regard to the time? A break in custody of one day, do you think that should be enough?

MR. GANSLER: Your Honor, we do think one day should be enough, as long as it is not in the pretrial detention category.

Notably, the State defined “custody” narrowly to mean custodial interrogation: “But the break in custody for Edwards purposes ought to end at the end of the interrogation.”  On this theory, it did not matter that Shatzer was incarcerated the entire time between interrogations because correctional custody is different from interrogatorial custody.  Justice Sotomayor seemed troubled by this thin distinction.

It seemed to me that the State took a stronger position than the case’s facts demanded, perhaps because it sensed that this conservative Court will strike at Miranda and other cases that protect criminal defendants’ Fifth Amendment rights:

“In other words, the police don’t have to get somebody a lawyer. Whether or not somebody has the opportunity to consult a lawyer or not, as long as they are provided with their Miranda rights, the Miranda rights themselves are the protection that the defendant has.”

[**THIS PARAGRAPH HAS BEEN EDITED**] This position strikes me as fairly remarkable.  The State actually claimed that the defendant has the burden to get a lawyer in the Fifth Amendment context, even if he is locked down in prison.  Although it is true that the State does not need to get the defendant a lawyer in the Fifth Amendment context (before indictment), the State must ensure the defendant has met with a lawyer before it initiates another interrogation.

The United States also argued on behalf of the State of Maryland.  The U.S. argued that suppression of the statement here would not fulfill the anti-badgering premise that underlies Edwards.  As the advocate said,

“And I think the fact that the Maryland Court of Appeals in this case concluded that two years and seven months is covered by an anti-badgering rule just shows at some point how far this has departed from the original purposes of Edwards in the first place.”

Sotomayor indicated that she had a broader view of the Edwards rule than the Government:

“there were two aspects to Edwards. One was the coercion, but the other was the respect for the advisement of counsel. And so the test that you are proposing only addresses the coercion prong of it, not the respect for the invocation of counsel.”

The Respondent argued for a strict and robust reading of the Edwards rule.  In response to an extreme hypothetical posed by Alito, Shatzer’s lawyer said that a Fifth Amendment request for counsel would preclude the police from questioning the defendant 10 years later on another charge altogether.  Though this seems like a ridiculous result on its face, Shatzer’s lawyer later pointed out that the problem would be alleviated altogether if the State actually provided counsel to the defendant as promised.  Quite easily done.  Justice Scalia proposed another elegant solution to Alito’s damning hypothetical: “What if — what if we limited Edwards to the same crime? That would — that would really make it much easier . . . .”  The Respondent agreed that this suggestion would clear up many problems in the current doctrine (this agreement can’t prejudice the defendant because such a solution would also protect the defendant’s right in this case).

It will be interesting to see how the Court resolves the issues presented here.  It seems like there are three main questions that linger after the argument: (1) does a break in custody suffice to negate an Edwards invocation?; (2) will the Court set a specific period of time (for example, seven days) after which an Edwards invocation presumptively expires?; and, (3) will the Court limit the scope of an Edwards invocation to the specific case the police are investigating?

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