Thursday, June 18, 2009

Miranda Goes To War (Part II: The Supreme Court Opinions)

To set the stage for the revolution in the American criminal justice system Warren and his four colleagues were about to launch with their decision in Miranda v. Arizona, excluding from evidence confessions given without specific warnings, the Chief Justice began his opinion by solemnly observing that:

The cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself. (My emphasis.)

Thus, because Warren was constrained by the facts of each of the four cases before the Court, the Chief Justice’s opening paragraph left no doubt that his forthcoming opinion was necessarily limited to establishing a constitutional rule applicable only to domestic crimes committed by American citizens in the United States.

Under the facts of those four cases it was jurisprudentially impossible for the Court’s decision to have any extraterritorial application—let alone to irregular fighters, Islamic guerillas, or enemy combatants engaged in jihad against the United States in places thousands of miles from our shores where there were no Arizona police, California prosecutors or a system of “American criminal jurisprudence.”

Warren next turned to a case it had decided two years earlier, Escobedo v. Illinois, in which the Court had held constitutionally inadmissible statements made during custodial interrogation by a suspect who had expressly requested, but was expressly denied by the police, an opportunity to consult counsel.

Note that all this occurred in Illinois with an American suspect and local police, not in Kabul with a Taliban prisoner and NATO soldiers.

In Escobedo the suspect had not only requested a lawyer, but a retained attorney had actually appeared at the police station and was prevented from seeing his client—a very different factual situation from the Miranda quartet of cases where there were no requests for lawyers and none had appeared during the interrogations.

This significant factual difference—request for, and presence of, counsel in Escobedo, but neither in the Miranda quartet and merely a failure to inform in three of the cases—required a long stretch for Warren to get where he wanted to go.

How was his Miranda majority going to construct a bridge from the request/denial in Escobedo to the constitutionally required affirmative duty to warn in the Miranda quartet?

Warren’s answer—for himself, Black, Douglas, Brennan and Fortas (Clark, Harlan, Stewart and White dissented)—is contained in some sixty pages of the official reports of opinions of the Supreme Court. It is a waste of ink and paper.

Lacking controlling precedent, Warren fell back on a recitation of police abuse horror stories, a reiteration of Escobedo, a sympathetic nod to the needs of law enforcement, and broad and often grandiose statements from constitutional history and inapplicable cases. In other words, Warren was backing and filling.

But even then, nothing in the legislation he wrote for himself and his four colleagues (and the country) in his wide-ranging, mostly irrelevant rambling disquisition remotely suggested there could be extraterritorial application of the new “constitutional” requirements, which were:

[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. * * * Prior to any questioning, the person must be warned that he has a right to remain silent that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned. (My emphasis.)

The italicized words “prosecution,” “defendant,” “procedural safeguards” and “police,” make it obvious that the person being interrogated is in the American criminal justice system. He is not in a remote cave in a remote part of a remote village in a remote country in a remote part of the world.

Yet even the domestic application of Miranda’s majority ruling was too much for the four dissenters. Their opposition to the majority’s newly-discovered constitutional right has important implications for the bizarre notion that Miranda’s reach is today extraterritorial.

Justice Clark, a former attorney general of the United States, recognized that the newly-announced “Miranda Rule” “has no support in our cases.” Instead, he proposed the more rational rule that “[i]n the absence of warnings, the burden would be on the State to prove that counsel was knowingly and intelligently waived or that in the totality of the circumstances, including the failure to give the necessary warnings, the confession was clearly voluntary.”

Though Clark dissented from the creation of the newly-found constitutional right, he shared with the majority the necessary understanding that, given the limitations of the facts in the four cases before them, the Court was dealing with cases of domestic crime in the American criminal justice system, not some utopian notion of fairness to irregular fighters, Islamic guerillas, or enemy combatants engaged in jihad against the United States in backwaters thousands of miles from our shores.

In Justice Harlan’s dissenting opinion, for himself and for Stewart and White, we see an observation that today appears clairvoyant: “I believe the decision of the Court represents poor constitutional law and entails harmful consequences for the country at large. How serious these consequences may prove to be only time can tell.” (My emphasis.)

The time is now. The consequences are unimaginable.

Although Harlan would go on to develop his observation by discussing the Miranda Rule’s impact on law enforcement, his arguments are even more applicable to the extraterritoriality now being given to the Miranda Rule.

Harlan begins by characterizing the new rule’s aim as being “toward ‘voluntariness’ in a utopian sense, or to view it from a different angle, voluntariness with a vengeance.”

He then demonstrated that the majority was inventing a new constitutional “right.”

More important for our purposes, Harlan launched a reasoned attack on the policy choice Warren and his four colleagues—judges not legislators—had just imposed on the police and citizens of the United States, stating that “[e]xamined as an expression of public policy, the Court’s new regime proves so dubious that there can be no due compensation for its weakness in constitutional law.”

He continued:

. . . precedent reveals that the Fourteenth Amendment in practice has been construed to strike a different balance, that the Fifth Amendment gives the Court [majority] little solid support in this context . . . . Legal history has been stretched before to satisfy deep needs of society. In this instance, however, the Court has not and cannot make the powerful showing that its new rules are plainly desirable in the context of our society, something which is surely demanded before those rules are engrafted onto the Constitution and imposed on every State and county in the land.

If Harlan, joined by Stewart and White, found unacceptable the majority’s pro-suspect, anti-police/society policy choice, just imagine their reaction if they twere told that the Miranda benefits would be bestowed on Taliban fighters in Afghanistan minutes after they killed American troops.

To merely state this proposition is to reveal its utter insanity.

Although Justice White had joined Harlan’s dissent, he wrote one of his own. Like Harlan, White recognized that “[t]he proposition that the privilege against self-incrimination forbids in-custody interrogation without the warnings specified in the majority opinion and without a clear waiver of counsel has no significant support in the history of the privilege or in the language of the Fifth Amendment.”

It that be true, and it certainly was, then five members of the Supreme Court of the United States, over the dissents of four colleagues, foisted a non-constitutional invented “right” upon not only the people of this country but today’s military forces who are in harm's way because they are charged with defending us.

Warren’s bridge was not constructed with reason and precedent, but with slogans and sleight-of-hand. As such, it should not have been able to support even the Miranda Rule.

But it has.

The next question is whether it is strong enough to support its present incarnation in the wilds of foreign lands when applied to the very different world of irregular fighters, Islamic guerillas, and enemy combatants engaged in jihad against the United States.

To be continued……………………….