In the June 15, 16 and 17, 2009 National Review Online Andrew C. McCarthy has written a devastating three-part essay “Obama Goes to Court.” In that series, Mr. McCarthy—a former federal prosecutor, and one of a handful of lawyers writing knowledgeably today about the legal aspects of national security—has provided a brilliantly cogent exegesis of how the Supreme Court’s forty-three-year-old Miranda decision has been used and misused by the courts and executive branch to seriously jeopardize America’s national security.
In Part I of his essay, Mr. McCarthy writes that:
[The] Miranda [decision] is a concoction of bad law and bad policy. Its criminal protections are sheer judicial inventions. Nothing in the Constitution mandates them. The Fifth Amendment forbids police to coerce a suspect’s confession; it does not require police to tell the suspect that his confession may not be compelled, nor does it impose a publicly funded lawyer to shield the suspect from interrogation. Thanks to Miranda, however, a guilty suspect who has not been forced to speak can get his voluntary confession judicially suppressed—no matter how heinous the crime—if the police, though they’ve honored his rights, have failed to tell him about those rights. (Emphasis in original.)
How did this happen? How was the Warren Court in 1966 able to invent a “constitutional” right for a kidnapper/rapist (and three other criminals), which in the Twenty-First Century seriously jeopardizes America’s national security?
To answer that question, I have to dissect the Supreme Court’s Miranda opinion.
There were nine members of the Court: Chief Justice Earl Warren and Associate Justices Hugo L. Black, William O. Douglas, Tom C. Clark, John M. Harlan, William J. Brennan, Jr., Potter Stewart, Byron R. White and Abe Fortas.
The “Miranda case” was actually four cases which had been consolidated by the Court for decision: Miranda v. Arizona, Vignera v. New York, Westover v. United States and California v. Stewart. (Had the opinion listed the New York case first, for all these years police would have been Vignera-izing suspects.)
Miranda v. Arizona. Ernesto A. Miranda was arrested at his home, taken to a police station, identified by his kidnapping/rape victim, questioned by two officers, and within two hours confessed in writing. Miranda’s statement contained a paragraph acknowledging that the confession was voluntary, that no threats were made and “with full knowledge of my legal rights, understanding that any statement I make may be used against me.”
Miranda had not requested a lawyer, nor did the police officers advise him that he had the then non-existent right to have one present.
At trial, the confession was admitted in evidence, Miranda was convicted of kidnapping and rape, and sentenced to 20 to 30 years imprisonment.
The Supreme Court reversed. Miranda “was not in any way apprised of his right to consult with an attorney and to have one present during the interrogation, nor was his right not to be compelled to incriminate himself effectively protected in any other manner. The mere fact that he signed a statement which contained a typed-in clause stating that he had ‘full knowledge’ of his ‘legal rights’ does not approach the knowing and intelligent waiver required to relinquish constitutional rights.”
Vignera v. New York. The defendant was picked up in connection with a dress shop robbery three days earlier, and taken first to the Detective Squad headquarters and then to a specific squad. At the squad, he orally confessed, and was identified by the storeowner and a saleslady. He was then taken to a precinct station and later questioned by an ADA with a transcript made of the questions and answers.
No “rights” were read to Vignera.
His oral confession was admitted in evidence at his trial, where he was convicted of first degree robbery and sentenced as a third-felony offender to 30 to 60 years imprisonment.
The Supreme Court reversed.
“Vignera was not warned of any of his rights before the questioning by the detective and by the assistant district attorney. No other steps were taken to protect those rights. Thus he was not effectively apprised of his Fifth Amendment privilege or of his right to have counsel present . . . .”
Westover v. United States. Westover was arrested as a suspect in two robberies in Kansas City, and on a felony warrant from California relating to two bank robberies. Following a police station line-up he was booked. Westover was then interrogated by the local police and later by the FBI, to whom he confessed in two signed statements to the two bank robberies.
The statements were admitted at his federal trial for the California robberies, Westover was convicted of both, and sentenced to 15 years imprisonment.
At the trial, “one of the [FBI] agents testified, and a paragraph on each of the statements states, that any statement he [Westover] made could be used against him, and that he had the right to see an attorney.”
No matter. The Supreme Court reversed.
“Despite the fact that the FBI agents gave warnings at the outset of their interview, from Westover’s point of view the warnings came at the end of the interrogation process. In these circumstances an intelligent waiver of constitutional rights cannot be assumed.”
California v. Stewart. Arrested in connection with purse-snatching robberies in which one victim died, Stewart was held for five days and interrogated nine times. During session nine, Stewart confessed to robbing the deceased. The record was silent about whether “rights” were read to Stewart.
He was convicted of robbery and first-degree murder, and sentenced to die.
The Supreme Court of California reversed.
“It held,” said Warren’s opinion for the Supreme Court of the United States which agreed with the Supreme Court of California, “that under this Court’s decision in Escobedo v. Illinois, Stewart should have been advised of his right to counsel and that it would not presume in the face of a silent record that the police advised Stewart of his rights.”
Before I turn to Escobedo and the other justifications Warren and four of his colleagues used to distort the meaning of the Fifth Amendment’s Self-incrimination Clause, it’s necessary to underscore crucially important facts about these four cases because, as Andrew McCarthy reports, it has become official United States government policy to Mirandize guerilla fighters captured on foreign battlefields.
Where? The Miranda and three other interrogations were conducted within the territory of the United States of America, not in a war zone on the other side of the world.
Who? The Miranda and three other interrogations were conducted of American civilians believed to have committed crimes, not irregular guerilla fighters belonging to no foreign army or state.
By whom? The Miranda and three other interrogations were conducted by domestic civilian police (and a prosecutor), not the military or CIA.
Why? The Miranda and three other interrogations were conducted to obtain confessions of domestic crime, not actionable foreign tactical and strategic intelligence.
Offense? The Miranda and three other interrogations’ fruits were used against kidnappers, rapists, robbers and killers, not irregular military forces (“enemy combatants,” if you will).
Kind of proceedings? The Miranda and three other interrogations were used in civilian criminal prosecutions, where there were judges, juries, due process, presumptions of innocence, proof beyond a reasonable doubt, and the need for jury unanimity, not to justify detention of enemy combatants or otherwise for use against them in a war.
Interrogators’ status? The Miranda and three other interrogations were conducted by justice-system representatives, not by military and paramilitary personnel in the field.
Authority? The Miranda and three other interrogations were instigated at the behest of sovereign political entities, three states and the federal government, not by soldiers or special operators.
In sum, the Miranda, Vignera, Westover and Stewart cases were, apart from their impact on our criminal justice system and the Fifth Amendment, garden-variety domestic criminal cases involving confessions, all handled in conformity with existing constitutional law.
The principal precedent upon which Warren, Black, Douglas, Brennan and Fortas relied in their rewriting of the Self-Incrimination Clause, Escobedo v. Illinois, was no different. Neither it, nor the four Miranda cases which relied on Escobedo, had anything in fact or fancy to do with enemy combatants captured in a war on battlefields halfway around the world.
To be continued ……………………………..