I have decided to start summarizing the MD cases published by the Maryland Court of Special Appeals and Court of Appeals. Previously I tried tweeting a summation, but it’s simply too hard to make any meaningful analysis over twitter. Before now I was obviously content with meaninglessness, but no longer! Not right now, at least.

This is a case regarding waiver of the rights encapsulated in the famous Miranda warnings, specifically if  being told by an interrogating officer that this is “between you and me, bud” is a subversive statement that vitiates the defendant’s “knowing and intelligent” waiver of his rights.

For those of you who like skipping to the back of mystery novels, the court held that statement “subverted the warnings and waiver, rendering in violation of Miranda all statements the suspect thereafter made during that interrogation.”

The pertinent fact, aside from the officer’s guarantee of secrecy, is that the petitioner signed a written waiver after being correctly advised of his rights. At that point, the waiver seems pretty knowing and intelligent (insofar as the law views intelligent). Then comes the following exchange, about an hour into the interrogation:

Q. The man, where was he at? Was he still in, was he still in bed; was he

standing up? I mean, it’s important to tell me what his demeanor is? Tell me

what he’s, he’s saying, or what he’s doing, all right, so I can get a better

picture of what’s going on, what you’re going through. When the two of you

go upstairs, all right, and, is he, is he in the bedroom? Is he — -

A. (Witness nodding head yes.)

Q. — - is he standing up, or was he still in bed? Was he sleeping? Was he

awake? Chris, bud — - all right. Was he still in bed or did he get up?

A. I’m going to jail, right?

Q. We’re not talking about jail right now.

A. Just — - that’s what the whole thing is about.

Q. That ain’t what it’s about. It’s about getting to what the truth is, that’s

what it’s all about.

Now, was he still in bed, or did he get out of bed while your cousin was up

there?

A. He was still in bed.

…

Q. He was asleep?

A. Yeah, this is being recorded.

Q. This is between you and me, bud. Only me and you are here, all right?

All right?

A. I’m trying to put together fact and accept that my life is basically over.

(Emphases added.)

The majority found that the officer’s statement was enough to vitiate the petitioner’s waiver; however, the majority concluded that the officer’s statement did not render the petitioner’s statements involuntary, allowing the State to use the unlawfully obtained confession for impeachment purposes during the remanded trial.

Interestingly, Chief Judge Bell and Judge Murphy believe that the officer’s behavior did render the petitioner’s confession involuntary.

The Supreme Court issued Berghuis v. Thompkins today. In it they held that a defendant must make an affirmative invocation of his or her right to remain silent and to an attorney.

Thompkins, the defendant, was subject to a 3 hour interrogation in an 8 x 10 foot room. During the entire interview, Thompkins remained silent — exercising his right to remain so. SCOTUS decided that remaining silent isn’t enough, a defendant must make a “simple, unambiguous” statement such as “that he wanted to remain silent or that he did not want to talk with the police.” (page 10 of the majority opinion) and that failing to make such a statement meant that he did not invoke his right. To remain silent. By remaining silent.

The court then decides that remaining silent for nearly 3 hours and finally giving a monosyllabic response is “sufficient to show a course of conduct indicating waiver.” (page 14 of the majority opinion)

Among the ridiculousness of this decision — and I believe it is ridiculous — the thing that strikes me the most is the way the court analyzes the issues. The Miranda warnings exist to inform defendants of their rights, and the options open to them. They are asked whether they understand the rights, so the warning is obviously for the defendant. So why does the court (and I’m not limiting this to Berghuis, it applies equally to earlier cases such as Davis, which this opinion relied upon) assume that the defendant knows he must break his silence immediately after being told that he has the right to remain silent?! Change the #$!@#& wording of the warning! Everything else in the opinion stems from that simple idiotic assumption. Waiver only comes up since the court found that Thompkins never invoked his right to remain silent.

I know I’m not adding any new or brilliant analysis, but I had to get that off of my chest.

The Supreme Court recently ruled that there is a 14 day time limit to a defendant’s Miranda rights.
Scott Greenfield has written about it, as has Orin Kerr.

The court states that:

It seems to us that period is 14 days. That provides plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel, and to shake off any residual coercive effects of his prior custody.

Fourteen days. Fourteen days from a run-in with the police, accusing you of a crime. Fourteen days from being stuck in an interrogation room with angry cops. Should we assume that those fourteen days are a carefree time, full of laughter and gaiety? Are those two weeks a vacation from the stress and concern over the accusation?

I understand that the police practically require a bright-line rule when they’re in the field. I respect the difficulty in formulating such a rule. I seriously question whether this rule makes any sense whatsoever.