Pair of Miranda Decisions from SCOTUS

The U.S. Supreme Court has issued a pair of decisions interpreting Miranda doctrine. This morning the Court held that there is an exception to Edwards v. Arizona, which required the assertion of the right to counsel to be scrupulously honored, which now permits the police to resume questioning after a "break in custody." Seven justices state that if the break lasts more than two weeks between interrogations, that Edwards does not require suppression.

Maryland v. Shatzer, http://www.supremecourtus.gov/opinions/09pdf/08-680.pdf

Yesterday, a variation of the Miranda warnings used in Florida was found to be adequate. The Court held that “Advice that a suspect has ‘the right to talk to a lawyer before answering any of [the law enforcement officers’] questions,’ and that he can invoke this right ‘at any time . . . during the interview,’ satisfies Miranda.” Even though that advisement does not expressly state that the defendant has the right to the presence of a lawyer.

Florida v. Powell, http://www.supremecourtus.gov/opinions/09pdf/08-1175.pdf

Justice Stevens dissented in Powell noting "the Florida Supreme Court concluded that'[b]oth Miranda and article I, section 9 of the Florida Constitution require that a suspect be clearly informed of the right to have a lawyer present during questioning," and that the warnings given to Powell did not satisfy either the State or the Federal Constitution." Therefore, the USSCt did not have jurisdiction to review the state court judgment as it rested on "an adequate and independent state-law ground that the warnings provided to Powell did not sufficiently inform him of the 'right to a lawyer’s help' under the Florida Constitution[.]"

This state constitutional analysis might be a good way to attack the decision in Idaho Courts.

Justice Stevens then disagreed with the Court’s decision on the merits noting that the right to have counsel present at an interrogation was described in Miranda as being "indispensable to the protection of the Fifth Amendment privilege." He then noted that, the form regularly used by the Tampa police warned Powell that he had "the right to talk to a lawyer before answering any of our questions," which informed Powell "only of the right to consult with a lawyer before questioning," which the the Miranda Court itself identified as insufficient notice to protect the Fifth Amendment privilege.

You know, it seems obvious to me that the right to consult with a lawyer before questioning is not the same as having the right to the presence of a lawyer during questioning. And, it's disappointing that the USSCt goes out of its way in this case to apply the old "close enough for police work" rule.

By the way, I'm going to miss Justice Stevens when he retires, as expected, at the end of the term. His nomination was the best thing to happen during the Ford Administration. Justice Ginsburg, the author of Powell, and the next expected retirement, will not be missed as much. (See March 9, 2009 SCOIDBlog where it was noted that "Justice Ginsburg has hit the Trifecta in bad rulings for criminal defendants this term.")