The players: Judges Blackburne-Rigsby & Easterly, Superior Court Judge Epstein sitting by designation. Opinion by Judge Blackburne-Rigsby. Opinion concurring in part and dissenting in part by Judge Easterly. Dissenting opinion by Judge Epstein. PDS for respondent. Trial Judge: Milton C. Lee, Jr.
The Facts: S.W. was arrested (for carjacking) and placed in an interrogation room. Before reading the Miranda rights, Detective Howland told him that he was going to give him an “opportunity” to tell his version because “I stand between you and the lions out there [meaning other police officers] …. [W]e have a lot of things going on out there, and they’re gonna try and say that you did it all.” Unlike the lions, “I think what happened today was just a one time thing.” The lions “said … you did a whole bunch of stuff, but in order for us to have a conversation, I have to read you your rights and you have to waive your rights.” He then told S.W, that if he answered “no” to any of the rights questions they could not have the interview. Thereafter, S.W. signed the card, wrote all yeses, and incriminated himself in a videotaped statement.
The Issues: Did the police lions-preamble render the Miranda rights ineffective? Did the police lions-preamble vitiate the validity of the purported waiver so it was neither knowing and intelligent nor voluntary?
The Holdings: Two judges (Blackburne-Rigsby and Epstein) agreed that the lions-preamble did not render the Miranda warnings ineffective, and two judges (Blackburne-Rigsby and Easterly) agreed that the lions-preamble rendered the purported waiver involuntary and thus the statement should have been suppressed.
The Dissents: Judge Easterly dissented in part because she believed that the preamble undid the import of the Miranda rights, rendering them ineffective. Judge Epstein dissented entirely because he believed police complied with Miranda and the waiver was valid.
Analysis:
The Holdings: Two judges (Blackburne-Rigsby and Epstein) agreed that the lions-preamble did not render the Miranda warnings ineffective, and two judges (Blackburne-Rigsby and Easterly) agreed that the lions-preamble rendered the purported waiver involuntary and thus the statement should have been suppressed.
The Dissents: Judge Easterly dissented in part because she believed that the preamble undid the import of the Miranda rights, rendering them ineffective. Judge Epstein dissented entirely because he believed police complied with Miranda and the waiver was valid.
Analysis:
Whether the lions-preamble rendered the Miranda warnings Ineffective:
Appellant argued that the lions preamble, though different from the question-first tactic described in Missouri v. Seibert, 542 U.S. 600 (2004), that the Supreme Court held invalidated the subsequent warnings though they literally complied with Miranda, was of the same ilk – designed to confuse and misinform, rendering the Miranda warnings ineffective. The majority rejected this argument, holding that where S.W. did not make any statement before the Miranda rights and he was read a full set of rights, the preamble did not vitiate the warnings.
Judge Easterly’s dissent from this portion of the majority opinion makes the following points: 1) Seibert is not confined to the precise tactic used in Seibert; in Seibert, the Supreme Court recognized that when police strategists set out to undermine Miranda’s promise of effective procedural safeguards by using tactics that obscure the force and meaning of the Miranda rights, the courts cannot accept as effective a rote recitation of rights; a preamble that obscures core Miranda principles – that the suspect has a real choice about speaking, that the police are his adversaries, and that the consequence of waiver is that evidence will be created and used against him – invalidates the rights, though they are recited correctly; the lions speech was precisely such a Miranda-neutralizing tactic that the Court must condemn; 2) specifically, by telling S.W. that the Detective was offering him an “opportunity” to better his chances, he contradicted and neutralized the required warning that anything a suspect says will be used against him; the exhortation to waive now so he could help himself vitiated the warning that S.W, had a right to remain silent and to consult with counsel before he said anything; the Detective also countered the rights to silence and to counsel by implying that asserting those rights would come at a price – losing the “opportunity” of improving his chances by confessing; and by telling S.W. that the lions would fabricate charges against him if he did not confess, the Detective turned Miranda on its head by communicating that only he could help S.W. by coming between him and the lions, and that standing on his constitutional rights could only hurt him.
Appellant argued that the lions preamble, though different from the question-first tactic described in Missouri v. Seibert, 542 U.S. 600 (2004), that the Supreme Court held invalidated the subsequent warnings though they literally complied with Miranda, was of the same ilk – designed to confuse and misinform, rendering the Miranda warnings ineffective. The majority rejected this argument, holding that where S.W. did not make any statement before the Miranda rights and he was read a full set of rights, the preamble did not vitiate the warnings.
Judge Easterly’s dissent from this portion of the majority opinion makes the following points: 1) Seibert is not confined to the precise tactic used in Seibert; in Seibert, the Supreme Court recognized that when police strategists set out to undermine Miranda’s promise of effective procedural safeguards by using tactics that obscure the force and meaning of the Miranda rights, the courts cannot accept as effective a rote recitation of rights; a preamble that obscures core Miranda principles – that the suspect has a real choice about speaking, that the police are his adversaries, and that the consequence of waiver is that evidence will be created and used against him – invalidates the rights, though they are recited correctly; the lions speech was precisely such a Miranda-neutralizing tactic that the Court must condemn; 2) specifically, by telling S.W. that the Detective was offering him an “opportunity” to better his chances, he contradicted and neutralized the required warning that anything a suspect says will be used against him; the exhortation to waive now so he could help himself vitiated the warning that S.W, had a right to remain silent and to consult with counsel before he said anything; the Detective also countered the rights to silence and to counsel by implying that asserting those rights would come at a price – losing the “opportunity” of improving his chances by confessing; and by telling S.W. that the lions would fabricate charges against him if he did not confess, the Detective turned Miranda on its head by communicating that only he could help S.W. by coming between him and the lions, and that standing on his constitutional rights could only hurt him.
Whether S.W.’s waiver was involuntary:
The majority held that S.W.’s waiver was coerced by the detective’s clear implication that if S.W. did not waive, the lions would pin false charges on him – “that if appellant does not waive his rights, detective Howland will throw him to ‘the lions.’” It is coercive to suggest that if a suspect invokes his rights, he will be penalized.
As both Judge Easterly and Judge Epstein point out, Judge Blackburne-Rigsby’s two holdings are in tension with each other: on the one hand, the majority opinion states that the lions-preamble did not distort the meaning of the rights, on the other hand it relies on the lions-preamble to hold that the respondent could not make a free decision about waiving the rights precisely because the preamble would make anyone feel coerced, as though he had no true option but to speak. The involuntary waiver holding did not really rely on anything peculiar to S.W., only the fact that he was given the lions speech.
Point for practitioners: Be very aware of police preambles and other such tactics. They are rampant, and now that police interrogations are videotaped, they are also recorded. Don’t give up on Seibert-type arguments because the more the defense bar shows the Court that police are trying mightily to obscure Miranda with such tactics, the more the Court will be receptive to such arguments. SF
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