Supreme Court Criminal Case: Police May Reinterrogate a Suspect Two Weeks After He Requests a Lawyer, Even if He Remains in Prison, Lawyerless

February 26, 2010 by Kish & Lietz

This week, the United States Supreme Court handed down its opinion in Maryland v. Shatzer. The case examined the parameters of the protections afforded by Edwards v. Arizona regarding reinterrogation of a criminal suspect after he has requested counsel. The court held that 1) a break in custody lasting more than two weeks between attempts at interrogation is sufficient to avoid the coercive pressures against which Edwards protected and 2) a return to the general prison population amounts to a break in custody for the purposes of this rule.

Justice Scalia delivered the opinion of the Court. Justices Thomas and Stevens each concurred in the judgment but disagreed with the 14-day break in custody rule. Justice Thomas would prefer Edwards be limited to “the circumstances present in Edwards itself” whereas Justice Stevens did not find the bright-line rule to provide enough protection against coerced confessions. We agree with Justice Stevens.

The facts of the case involve allegations of sexual child abuse against Mr. Shatzer while he was incarcerated for another offense. In 2003 a detective attempted to interview Mr. Shatzer about sexual abuse of his 3-year-old son, but Mr. Shatzer declined to speak without an attorney. The investigation was closed.

Two and a half years later, another detective was assigned, who interviewed the son (who had somehow aged 5 years in that period) and acquired more details. That detective then interrogated Mr. Shatzer after obtaining a Miranda waiver. Mr. Shatzer had been transferred to another prison, but had been incarcerated for the entire time. Detectives later administered a polygraph exam. Mr. Shatzer failed, then became upset and incriminated himself.

In the majority opinion, Justice Scalia explained the rationale behind Miranda and Edwards, describing the Edwards protections as “not a constitutional mandate, but judicially prescribed prophylaxis.” He explained that in cases following Edwards, the rule had been applied where the suspects had been in continuous custody without a chance to regain “a sense of control or normalcy after they were initially taken into custody.” Due to the diminished benefits and increased costs of extending Edwards, an extension of Edwards without time limits is not justified. Justice Scalia seemed to choose a 14-day bright-line rule arbitrarily, assuming that two weeks is long enough to “shake off any residual coercive effects of his prior custody.”

In his concurring opinion, Justice Stevens expressed his qualms that “[t]he Court’s analysis today is insufficiently sensitive to the concerns that motivated the Edwards line of cases.” He disagrees with the assertion that Edwards is not a constitutional command because the Fifth Amendment is the source of that protection. He also worries that allowing reinterrogation after only 14 days “disregards the compulsion caused” by a subsequent interrogation of a suspect who has requested a lawyer after being told that one would be provided for him, but have not received counsel. That suspect is likely to feel that the police lied, so he does not really have any right to a lawyer. Justice Stevens suggested a concrete event, such as police providing counsel, rather than or in addition to the time-based rule.

The other issue decided in this case was whether Mr. Shatzer was “in custody” for purposes of the break-in-custody rule. Although he was incarcerated, the Court determined that a return to the general prison population amounts to a “return to their accustomed surroundings and daily routine” with “the degree of control they had over their lives prior to the interrogation.” The Court also assumes that the prisoner suspect understands that the interrogator has no power to increase or decrease his time served. Because of those circumstances, a return to prison qualified as a break in custody.

We believe Justice Stevens took a more reasonable approach to this issue in his concurring opinion. He recognizes that “[a] prisoner’s freedom is severely limited, and his entire life remains subject to government control,” which is “not conducive to shaking off any residual coercive effects of his prior custody. Nor can a prisoner easily seek advice from an attorney, family members, or friends [as emphasized in the majority opinion,] especially not within 14 days; prisoners are frequently subject to restrictions on communications.” In addition, “[p]risoners are uniquely vulnerable to the officials who control every aspect of their lives; prison guards may not look kindly upon a prisoner who refuses to cooperate with police. And cooperation is frequently relevant to whether the prisoner can obtain parole.”

While Justice Stevens agreed that the 2½ year period between interrogations is a basis for treating the second interrogation as no more coercive than the first, he acknowledged that “[n]either a break in custody nor the passage of time has an inherent, curative power.” We agree. Unfortunately, the majority held otherwise.

The full opinion is available here.

Upcoming Changes in the Supreme Court?

February 24, 2010 by Kish & Lietz

Tom Goldstein at SCOTUSblog discussed his predictions for the future of the Supreme Court yesterday. He predicts that Justice Stevens will retire, but Justice Ginsburg will remain on the bench. His entry includes an in-depth analysis of potential nominees to replace Justice Stevens, concluding that Solicitor General Elena Kagan is the most likely choice for the Obama Administration.

Read the full post here.

Phillips: A Crack Reduction is a Sentence Under Rule 35

February 24, 2010 by Kish & Lietz

Congratulations to Jake Waldrop and the Federal Defender Office here in Atlanta for winning one at the Court of Appeals this week! Yesterday, the Eleventh Circuit held that Federal Rule of Criminal Procedure 35, which imposes a seven-day jurisdictional time limit on modifications of sentences, applies to crack resentencings, as well as original sentencings.

The opinion in the case, U.S. v. Phillips, is available here.
The Federal Defender blog has a post on the case here.
More information on crack resentencing is available here at the Sentencing Law and Policy blog.

Oral Arguments in Third Circuit Electronic Privacy Case – Should the DOJ Need a Warrant to Obtain Location Data from Cell Phones?

February 18, 2010 by Kish & Lietz

Last week, the Third Circuit, which hears appeals from federal cases in Pennsylvania, Delaware, and New Jersey, heard oral arguments in a worrisome electronic privacy case: In The Matter Of The Application Of The United States Of America For An Order Directing A Provider Of Electronic Communication Service To Disclose Records To The Government. The Department of Justice is challenging a denial of a request for cell phone location data in a drug-trafficking case, which was signed by all of the magistrate judges in the Western District of Pennsylvania and affirmed by the district court judge.

At oral arguments, Third Circuit Judge Sloviter seemed understandably concerned about the privacy implications and potential over-reaching by the government in allowing police to obtain information about a person’s location based on cell phone data without probable cause. Judge Tashima, visiting from the Ninth Circuit, seemed more sympathetic to the government’s argument. Judge Roth, also on the panel, did not attend the oral arguments. An audio recording of the arguments is available here.

Professor Orin Kerr, at The Volokh Conspiracy blog, explained the case in this post and blogged the oral arguments in this post. His posts, and the extensive discussion in the comments, provide a good overview of the legal arguments involved in the case. We have also posted the appellate briefs below. We disagree with Professor Kerr’s Fourth Amendment argument that Smith v. Maryland (in which the Supreme Court held that use of a pen register is not a “search” for Fourth Amendment purposes because the user of the phone voluntarily conveys the outgoing numbers to the phone company) is applicable precedent, because a cell phone user actively dials a phone number, but only passively shares his location with the phone company. We hope that the Third Circuit decides that a warrant is necessary for the police to obtain such information.

The statute involved is 18 U.S.C. § 2703(c), which is available here.

The Atlanta Journal Constitution article about this case is available here.

Briefs and Orders in the Western District of Pennsylvania:
The District Court Order affirming magistrate judge's ruling denying the government's request is available here.
The Government's reply memorandum of law in support of request for review is available here.
The Amicus brief of the Federal Defender is available here.
The Amicus brief of Susan Freiwald is available here.
The Amicus brief of the Electronic Frontier Foundation, the ACLU, and the Center for Democracy and Technology is available here.
The Government's memorandum of law in support of request for review is available here.
The Magistrate Court Order Denying Government Request to Obtain Stored Cell Site Records without Probable Cause is available here.

Briefs to the Third Circuit:
The Amicus brief of Susan Freiwald is available here.
The Amicus brief of the Electronic Frontier Foundation, the ACLU, and the Center for Democracy and Technology is available here.

Eleventh Circuit: Both Defendant and Federal Prosecutors Entitled to Notice and Opportunity to Respond when Court Intends to Rely on New Information in Modification of a Criminal Sentence

February 11, 2010 by Kish & Lietz

Last week the Eleventh Circuit, which sits here in Atlanta, Georgia, decided U.S. v. Jules. The Court held that “when a district court intends to rely on new information in deciding a motion for the modification of a sentence pursuant to 18 U.S.C. § 3582(c)(2),” both the federal government and the criminal defendant are entitled to notice of the information and an opportunity to respond.

Jules was originally sentenced to 151 months, the bottom of his Guidelines range, for conspiracy to possess with intent to distribute 50+ grams of cocaine base. The Guidelines were subsequently amended to reduce the base offense-level in such a case. Thereafter, Jules requested a modification of his sentence. The probation office sent a memo to the district court detailing misconduct by Jules while in prison. That memo was neither docketed nor provided to either of the parties. The district court relied on the sanctions in the memo in denying Jules’ motion for modification.

The Eleventh Circuit held that, although a defendant in a § 3582(c)(2) proceeding is not afforded all of the protections as at an original sentencing, the “fairness and due process principles embodied in the Federal Rules of Criminal Procedure, the Sentencing Guidelines’ policy statements, and the reasoning of [the Fifth and Eighth Circuits] compel us to hold that each party must be given notice of and an opportunity to contest new information relied on by the district court in a § 3582(c)(2) proceeding. The court also stated that a hearing is permissible for allowing parties to contest such information, but not necessary.

The Eleventh Circuit’s opinion is available here.

Eleventh Circuit Discussion of Loss and Restitution in Sentencing for Federal Crimes

February 9, 2010 by Kish & Lietz

Yesterday, the Eleventh Circuit issued an opinion in U.S. v. Patterson. Even though the criminal defense attorney below failed to object to the Presentence Investigation Report (PSI) and Patterson lost his appeal on the plain error standard, this opinion provides a good review of the Eleventh Circuit law regarding intended loss, actual loss, and restitution and the Federal Sentencing Guidelines.

The Guidelines calculate a sentencing range based, in part, on how much ‘loss’ was caused by the defendant’s crime. The sentence is calculated using “intended” loss because a “criminal pays the price for the ambition of his acts, not their thoroughness,” whereas the amount that a criminal must pay back, called “restitution,” “must be based on the amount of loss actually caused by the defendant’s conduct.”

It often is hard to calculate the loss figure, because some fraud crimes result in “actual” loss amounts that differ dramatically from the “intended” loss. That was the problem in this case. This case involved stolen cars, some of which were never recovered and/or owners could not be located, and others were returned to their owners intact. For these reasons, the “intended” loss more than doubled the “actual” loss and restitution. Patterson argued that the loss amount used in sentencing should equal the restitution amount, but the Court rejected his argument, explaining that “cases offer substantial explanations why these figures can diverge.” The Court of Appeals said, “the district court did not err, let alone plainly err.”

The opinion is available here.

Briscoe v. Virginia: Federal Supreme Court Upholds Recent Opinion Regarding Testimony By Forensic Analysts in Criminal Trials

February 4, 2010 by Kish & Lietz

Crime%20lab%20photo%20courtesy%20of%20U.S.%20Army
Last week the Supreme Court vacated and remanded Briscoe v. Virginia for proceedings consistent with the decision in Melendez-Diaz v. Massachusetts. We discussed Melendez-Diaz last summer in this post.

In Melendez-Diaz, the Supreme Court held that crime lab reports are testimonial statements covered by the Confrontation Clause of the Sixth Amendment. For such reports to be admissible, the forensic analysts must testify as witnesses in criminal trials, both federal and state. Shortly after that decision, the Court granted cert in Briscoe, a case presenting the same issue. Justice Scalia criticized the grant of cert, asking, “Why is this case here except as an opportunity to upset Melendez-Diaz?”

He asked that question at oral argument less than one month ago. SCOTUSblog covered that oral argument thoroughly in this post. They also explained last week’s decision in the context of the changing Court in the first half of this SCOTUSblog post.

The extremely short per curium opinion is available here.

Photo courtesy of the U.S. Army.