Tomorrow’s Argument: Maryland v. Blake
on Oct 31, 2005 at 12:43 pm
“I want my lawyer!”
If there is one piece of wisdom every law student knows, it’s that these should be the first words out of your mouth if you’re ever in trouble with the law. Once you say that, the conversation with the police is over until your lawyer is present. No ifs, ands, or buts. Right? Well, not quite.
In Edwards v. Arizona, the Court first laid down its rule that once a suspect is arrested and read her Miranda rights, if she invokes her right to counsel, police may not continue interrogating her without counsel present. However, the Court left open one exception. The police can continue interrogation if (and only if) the suspect herself reinitiates the interrogation process.
But what counts as self-reinitiation? And in particular, what happens if the police briefly slip up, make an unlawful post-invocation statement, and despite their efforts to undo the damage, the suspect ends up expressing a willingness to discuss the case? How can we tell whether the suspect’s decision to speak was self-reinitiation, or actually a response to the short-lived unlawful interrogation? These are the questions with which the Court will wrestle in Maryland v. Blake, which will be argued tomorrow.
Kathryn Grill Graeff, Assistant Attorney General of Maryland will argue for petitioner. James A. Feldman, Assistant to the Solicitor General, will argue on behalf of the United States as amicus curiae in support of petitioner. Kenneth W. Ravenell of Schulman, Treem, Kaminkow, Gilden & Ravenvell in Baltimore will argue for respondent. Petitioner’s merits brief and reply brief can be found here. The Solicitor General’s amicus brief in support of petitioner can be found here. A publicly available version of respondent’s brief could not be located but is available to Westlaw subscribers at 2005 WL 1900329.
On a chilly morning in October 2002, the Annapolis (Md.) police arrested seventeen-year-old Leeander Blake for murder, removing him from his home in his boxers and a tank top. The police advised Blake of his Miranda rights, and Blake took advantage of them right away by asking to see a lawyer. A little more than a half hour later, however, detective William Johns presented Blake with a copy of the charges against him, and told him to read them carefully. The charges included first-degree murder, and listed “DEATH” as a possible penalty, even though Blake was, in fact, not eligible for death because of his age. Blake also learned that his codefendant and friend had accused him of the killing. Apparently referring to the contents of the charging materials, another officer, Curtis Reese, said to Blake in a confrontational tone, “I bet you want to talk now, huh!” Detective Johns admonished Reese loudly in front of Blake: “No, he doesn’t want to talk to us. He already asked for a lawyer. We cannot talk to him now.” Detective Johns testified that when officers brought Blake fresh clothes about thirty minutes later, Blake asked, “I can still talk to you?” Johns responded: “Are you saying that you want to talk to me now?” Blake answered: “Yes.” The story ends with Blake being brought to an interrogation room, being read his Miranda rights again, but then waiving his rights and giving an incriminating statement to the police.
The issue in this case is whether Blake’s decision to speak to police was actually a response to Reese’s unlawful interrogation or an independent, voluntary decision unrelated to the unlawful interrogation. Blake insists that his incriminating statements were a response to Reese’s exclamation, and the fact that he had just been told he might face the death penalty. Maryland contends that the police took proper “curative measures” to ensure that any statement on Blake’s part could not be considered a response to Reese’s interrogation: Johns admonished Reese loudly enough so Blake could hear that his questioning was improper, and gave Blake about a half hour in his cell without police contact, dispelling any air of coercion.
The trial court concluded that, under a causation-like analysis, Reese’s statements caused Blake’s waiver, and so “[t]he State ha[d] not met its heavy burden of proving a voluntary, knowing, and intelligent waiver.” The intermediate court of appeals in Maryland reversed, finding that Reese’s statement did not qualify as “interrogation” at all. The state’s highest court, the Maryland Court of Appeals, again reversed, and reinstated the holding of the trial court. It found that Reese had effectively interrogated Blake, and held that Johns’s actions after Reese’s interrogation had not cured the violation. In assessing whether Blake subsequently initiated further contact, the court looked at various factors, including that Blake was given a statement of charges that indicated (incorrectly) that the penalty for first-degree murder in his case was death. The court found “no break in custody or adequate lapse in time sufficient to vitiate the coercive effect of the impermissive interrogation.” Agreeing with the trial court’s finding that Blake’s inquiry was in direct response to, and the product of, Reese’s unlawful interrogation, the Court of Appeals held that Blake himself did not initiate contact with the police after invoking his Miranda rights. Maryland appealed, and the Court granted certiorari.
The parties agree that Edwards would allow post-invocation interrogation if Blake himself reinitiated. They also agree that Johns’s efforts to “cure” the damage done by Reese’s interrogation should be taken into account in some way. The main difference between the parties’ positions seems only to be what kind of analysis should be used to distinguish between self-reinitiation and a response to interrogation. Blake argues for a causation analysis, and asks the Court to defer to the trial court’s factual determination that Blake’s decision to speak was directly caused by Reese’s unlawful statement. Maryland argues that the Court should examine the totality of the circumstances to decide whether the police honored Blake’s rights, and whether such honoring would give a reasonable person in Blake’s shoes the impression that it really was his own choice to resume questioning. In other words, it is probably indisputable that Blake’s decision to speak was in one way or another “caused” by Reese’s comments. But Maryland contends that mere causation is not enough; Blake must show that his decision was actually “involuntary.”
Maryland argues that its totality-of-the-circumstances test is appropriate for two reasons. First, it comports with the original purpose of the Edwards rule, which is to prevent police badgering after invocation. The test asks the Court to consider “the entire course of conduct of the police after the invocation of the right to counsel,” so that “a single improper comment by a police officer after a suspect’s invocation of the right to counsel [w]ould not preclude a finding that the suspect subsequently initiated further contact with the police.” One unlawful comment by the police, indeed one that the police go out of their way to undo, hardly constitutes badgering, and so should not lead to inadmissibility under Edwards.
Second, the state suggests that a totality-of-the-circumstances test would best balance the rights of criminal defendants with the needs of law enforcement. Though Edwards was designed as a prophylactic rule to ensure that suspects maintain the right to choose not to speak to police, it was not intended to prevent voluntary confessions altogether. Nor was it intended to guarantee perfect police behavior in every investigation. Maryland implies that too hard-and-fast a prophylactic rule would impede law enforcement by barring not only coerced incriminating statements, but also legitimate ones. It emphasizes that Edwards clearly left room for suspects who originally declined to speak with police to change their minds if they see this as being in their best interest. Here, Maryland contends, Blake did just that: he considered the severity of the charges, and learned that his codefendant was blaming him, and so changed his mind about speaking to police without counsel. Moreover, Maryland argues, law enforcement would be inhibited if every slip-up, like Reese’s, led to inadmissibility even though the police were able to dispel any sense of coercion.
The Solicitor General filed an amicus brief in support of petitioner. In addition to reiterating Maryland’s argument, the SG emphasizes that the Maryland Court of Appeals’ holding was too stringent, and created a bright-line rule that there must be a break in custody or an adequate lapse in time to “exhaust the scenarios that may militate against finding an Edwards violation.” Other factors, the SG argues, could mitigate the effects of improper post-invocation interrogation, and considering these would still serve the general goals of Edwards.
Blake challenges the state’s “nebulous” totality-of-the-circumstances test. Edwards, he claims, set forth a very clear bright-line rule that any statement made to police in response to post-invocation interrogation is inadmissible (unless it comes after suspect reinitiation). The goals of the case, therefore, include not just a protection of a suspect’s choice not to speak to police, but also, according to Minnick v. Mississippi, “conserv[ation] of judicial resources that would otherwise be expended in making difficult determinations of voluntariness.” The police’s “curative measures” are not irrelevant, but should simply be incorporated into a causation analysis to see if the improper interrogation actually caused the suspect to make his incriminating statements. The state’s standard, however, opens up precisely the difficult question of voluntariness that Edwards tried to avoid.
Blake thus urges the Court to focus only on a causation analysis. He argues that the trial court made a finding of fact that, even considering Johns’s curative measures, Blake’s statement was actually caused by Reese’s provocation. This finding of fact should be reviewed on a plain error basis, and easily passes such review in this case. Blake further argues that, even if the issue were to be reviewed de novo, the Court still must find causation. Reese’s comment suggested that Blake had made the “wrong” choice in exercising his rights. Johns made no effort to dispel Blake’s belief that he might have made an improper choice, but instead employed a good-cop-bad-cop routine that ended the discussion after Reese successfully instilled fear in the suspect. Johns reprimanded Reese, but never addressed Blake himself; Reese’s direct and forceful challenge to Blake’s decision to request counsel could only be cured by an equal and opposite assertion directly to Blake.
Maryland responds that Blake’s causation analysis is nevertheless improper. It is simply a transplant of the Fourth Amendment’s fruits-of-the-poisonous-tree doctrine into Fifth Amendment jurisprudence, where it does not belong. Oregon v. Elstad, Maryland argues, shows that causation is not the proper analysis for deciding if violation of a prophylactic rule, like the Miranda rule, should lead to suppression. In Elstad, the police failed to Mirandize the suspect when he was taken into custody; but the Court found that any subsequent statements were admissible if they were made after the suspect was later properly Mirandized at a different location. The earlier Miranda failure did not “taint” the later, properly obtained confession. The Court focused on the suspect’s reasonable perception of voluntariness at the later confession. Edwards is much like Miranda, Maryland argues: it sets forth a prophylactic rule, the violation of which does not directly cause constitutional harm. As in Miranda cases, voluntariness, and not causation, is the more appropriate issue to consider in Edwards cases.
Maryland’s response to Blake, however, did not seem to address what may be the strongest weapon in Blake’s arsenal. Maryland is apparently asking for a departure from the common wisdom that the Fifth Amendment right to counsel (as set forth in Edwards) is to be treated with much more severity than the Fifth Amendment right to silence (as set forth in Miranda). It is much easier to waive the right to silence than the right to counsel under the Court’s Fifth Amendment precedent. In Michigan v. Mosely, the Court held that police could interrogate the suspect who had invoked his right to silence after being Mirandized, since they “scrupulously honored” this invocation. A rereading of the Miranda rights combined with anything that makes the pre-invocation interrogation seem not continuous with the post-invocation interrogation may be considered curative measures that allow police to continue interrogation even after an initial invocation of the right to silence. Moreover, Elstad held that a single police mistake with respect to Miranda rights will not necessarily taint a future confession after the Miranda warnings are properly given. These cases suggest that, in the right-to-silence context, a police impropriety can be cured so long as steps are taken to ensure that the circumstances surrounding the impropriety would not be seen by a reasonable person as continuous with or related to the circumstances surrounding the eventual confession. If however, the pre-invocation (or pre-warning) interrogation and the post-invocation (or post-warning) interrogation would be seen as one and the same incident, then a resulting confession will be inadmissible. See Missouri v. Seibert, 124 S. Ct. 2601 (2004).
Edwards and its progeny suggested, however, that right-to-counsel cases would be governed by a stricter standard, and that “scrupulous honoring” is irrelevant in this context. In Arizona v. Roberson, the suspect invoked his right to counsel, but ended up speaking to police at a later police-initiated interrogation. The Court held that even though the police took the same curative measures that were sufficient in Mosely, the post-invocation interrogation without counsel was unlawful. Blake therefore seems justified in saying that Edwards provides a much more stringent rule than Maryland is asking for, and that Maryland is blurring the line between right-to-silence and right-to-counsel cases; previous decisions seem to say that no amount of “scrupulous honoring” can undo or trump a previous invocation of the right to counsel.
Nevertheless, the fate of the Miranda and Edwards lines of cases is always up in the air. These cases are often seen, as Maryland and the SG emphasize, as broad-reaching, overinclusive, prophylactic rules that seriously impede states’ abilities to obtain truthful confessions and put dangerous criminals behind bars. The Court has indicated before that it is willing to cut back Edwards‘s broad reach. In Oregon v. Bradshaw, it found that when a suspect asked innocently of a police officer “what is going to happen to me now,” this counted as self-reinitiation. Bradshaw, at the least, indicates the Courts’ willingness to find reinitiation with relative ease. It may exhibit the same willingness here. The scales weighing the need to protect defendants and the need to allow police discretion in investigation are always seesawing.