UNDERDOG - Criminal Defense Lawyer in Virginia & Maryland

Ernesto Miranda (r). (Image from State Department's website).

Miranda v. Arizona,384 U.S. 436 (1966), is sacrosanct, at least until the Supreme Court ruled 5-4 today that criminal suspects must speak in order to assert their right not to speak. Berghuis v. Thompkins, __ U.S. _ (June 1, 2010).

As talented as the above-displayed Carmen Miranda may have been, it is never the right time to replace her inconsequential (in the scheme of things) singing and dancing for the weighty Constitutional implications presented by Ernesto Miranda in Miranda v. Arizona.  

Jon Katz - Criminal defense and DWI defense lawyer practicing in Fairfax County, Virginia, Montgomery County, Maryland and beyond. 301-495-7755. http://katzjustice.com. 

Ernesto Miranda (r). (Image from State Department's website).

Today, Maryland's highest court affirmed the suppression of a murder suspect's statement to the police, where the statement followed a botched Miranda warning. Maryland v. Luckett, __ Md. App. _ (April 14, 2010). The Maryland Court of Appeals concluded:

We hold that a suspect is not properly informed of his or her Miranda rights when a statement of those rights, however correct the statement may be, is nullified by other incorrect statements concerning those rights. In that event, the Miranda advisements are constitutionally infirm, a purported “waiver” of those rights is constitutionally invalid, and any statement the police obtain from the suspect during the ensuing interrogation violates Miranda. Here, Detective Barba misadvised Respondent of his right to counsel under Miranda, rendering invalid his purported Miranda waiver and requiring suppression of Respondent’s post-“waiver” statement to the detective. The Circuit Court’s suppression ruling was correct, as was the judgment of the Court of Special Appeals affirming that order.

Luckett.

Luckett affirms the Maryland Court of Special Appeals' opinion -- which I blogged about here -- that upheld the suppression of Mr. Luckett's statements. Jon Katz.

For trials of charges of being a felon in possession of a firearm, prosecutors would love nothing more than for the jury to hear all the details about the prior felony conviction.

The best way for the defense to avoid prejudicing the jury over the prior felony conviction is to hold severed trials of the firearm possession charge and the charge of being a felon in possession of a firearm. If such a motion is denied, the defense should consider reaching a stipulation or admission that the Defendant was convicted of a qualifying felony prior to the alleged possession of the firearm and should seek the most favorable jury instructions to minimize the collateral damage of the jury's knowing about a prior conviction.

The Supreme Court provides guidance on reducing such prejudice in Old Chief v. United States, 519 U.S. 172  (1997), which is a 5-4 decision, with two of the dissenters still on the Court (Justices Scalia and Thomas), and two off (Rehnquist and O'Connor, JJ).

Shortly before Old Chief was decided, the D.C. Court of appeals dealt with the issue in Goodall v. United States, 686 A.2d 178 (D.C. 1996). Jon Katz

ADDENDUM. Thanks to a fellow listserv member for addressing both of the above-listed cases.

Old Chief is a captivating name for the above-discussed Supreme Court case. Consider how such criminal defendants as Gideon (a prophetic name) and Miranda (whose competing namesake entertained along with Bob Hope and Bing Crosby) get their names immortalized in landmark Supreme Court cases. What if Ernesto Miranda's last name had been MoxiePhish? That might have brought out suppression motion questions about whether the officer had MoxiePhished the defendant, rather than if s/he had Mirandized the defendant.

Ernesto Miranda (r). (Image from State Department's website).

In neighboring Prince George's County, Maryland, a seasoned police officer rambled about and mis-advised a murder arrestee about his Miranda rights. For the officer's deep and damaging straying from Miranda's warning script, Maryland's intermediate appellate court affirmed the trial court's suppression of the defendant's statements that followed to the police. The opinion's theme is that "police interrogators will do well not to stray too far from the canonical text" of Miranda. State v. Luckett, __ Md. App. _ (Oct. 5, 2009). Jon Katz.

Ernesto Miranda (r). (Image from State Department's website).

Praised be attorney Paul Charlton for wanting "FBI agents to tape-record interviews and confessions, particularly in child molestation cases on Arizona's 21 Indian reservations, something the FBI historically has not done." Unfortunately, Mr. Charlton's voice is of less authority on this matter now that he is one of the eight fired United States Attorneys.

Why would law enforcement people not want to videotape suspects' "confessions" to enable judges and jurors to make fairer decisions about the voluntariness of the "confessions" and their reliability? Why, indeed? To hide police prevarication, exaggeration and distortion? To try to avoid having jurors lose their lunch (or breakfast) over heavy-handed police interrogation tactics?

The last time I checked, the police are supposed to work for the people, and not the other way around. Criminal defendants' lives and liberty are worth requiring all police agencies to purchase and use video cameras to tape "confessions". Jon Katz.

This blog entry provides another reason to live outside Virginia. (Image from Virginia Forestry Dept's website.)

Beware having the accused testify in Virginia state court. When the accused testifies there, the prosecutor has appellate authority enabling the trial judge to permit cross examination of the defendant beyond the scope of direct examination. The case is Drumgoole v. Commonwealth, 26 Va. App. 783 (1998).

In Drumgoole, the Virginia Court of Appeals affirmed a conviction where the prosecutor cross-examined the defendant beyond the scope of his cross examination. In reaching this holding, the Court of Appeals relied on two cases from the days of Virginia's fully-entrenched Jim Crow culture: 

"'Cross-examination . . . entitles the Commonwealth to bring out . . . facts relating to the guilt or innocence of the accused . . . .' Thaniel v. Commonwealth, 132 Va. 795, 806, 111 S.E. 259, 262 (1922)." Drumgoole, 26 Va. App. at 786. 

Worse: "When the accused voluntarily takes the stand he 'loses his character as a party, becomes a mere witness, and may be examined as fully as any other witness. He may be examined and must answer concerning all matters which are relevant to the case, whether testified to on the direct examination or not.'" Smith v. Commonwealth, 182 Va. 585, 598, 30 S.E.2d 26, 31 (1944) (citation omitted) (quoted in Drumgoole, 26 Va. App. at 786).

Drumgoole quotes further from Smith v. Commonwealth, 182 Va. 585:
 

 
"To confine the cross-examination of the accused to such matters as have been brought out on direct examination is 'palpably unfair to the prosecution,' for since it can not call him as a witness or compel him to testify on direct examination, unless it could develop relevant facts on his cross-examination it might be deprived of all means of proving them, and this, too, although the accused, by voluntarily taking the stand, had waived the privilege of self-incrimination. [Smith v. Commonwealth, 182 Va.] at 600-01, 30 S.E.2d at 32." Drumgoole, 26 Va. App. at 786-87.

There you have it, the Virginia Supreme Court in 1944 -- long before so many critical Supreme Court decisions on criminal defendants' rights, including Miranda, saying that "To confine the cross-examination of the accused to such matters as have been brought out on direct examination is 'palpably unfair to the prosecution.'" Id.

A fellow criminal defense lawyer has a good idea for handling this conundrum: If at the arraignment the defendant was told s/he would be subject to cross examination the same as any witness if the defendant testified, then it is impermissible to permit cross examination beyond the scope of direct examination, becauase the defendant at arraignment was not put on notice that cross examination could go beyond the scope of direct examination. Consequently, it is a good idea for defense lawyers to bring the arraignment transcript to trial. Jon Katz.

Chief Judge Bell is Brown's sole dissenter

The United States Supreme Court has not decided the extent to which the police may seize non-residents visiting a home being searched by police pursuant to a valid search warrant. However, on February 7, 2007, the Maryland Court of Appeals provided police a green light to seize such visitors at least to make some initial inquiries. Brown v. State, __ Md. _ (Feb. 7, 2007). As a result, Maryland's highest court upheld the conviction of such a visitor whom the police seized, asked if he had any weapons or drugs (hopefully he was Mirandized, but Brown  is silent on that (Cotton v. State, 386 Md. 249,  cert. denied, 126 S. Ct. 212 (2005) requires such Mirandizing for such a seizure)), and heard him reply that he had one-quarter pound of marijuana in his waist.

Brown relies heavily on Cotton v. State, 386 Md. 249,  cert. denied, 126 S. Ct. 212 (2005), which states: "In executing a warrant such as that issued here, the police for a premises known to be an open-air drug market where the police are likely to encounter people who may well be dangerous, they are entitled, for their own safety and that of other persons, to take command of the situation and, except for persons who clearly are unconnected with any criminal activity and who clearly present no potential danger, essentially immobilize everyone until, acting with reasonable expedition, they know what they are confronting. It really cannot be otherwise."

The three-judge Cotton dissent -- with former Maryland United States Attorney Battaglia writing -- insisted:

"It is disingenuous to assert that the danger posed to police under such circumstances was of such magnitude as to warrant the detention of all persons merely present in some capacity on the premises. Surely, the overwhelming number of officers on the small property dispelled any such need to engage in a wholesale detention. In light of the overwhelming number of officers at the scene and the diminutive size of the property, the Majority cannot in good faith argue that the threat to police outweighed Cotton's interest in being free from a warrantless seizure."

Now, in the subsequent Brown decision, Judge Battaglia and Judge Greene -- both who dissented in Cotton -- joined in the judgment only, without standing by the court's reasoning. Their silence makes it unclear whether they joined the judgment merely by considering Cotton to be controlling stare decisis.  Kudos to Chief Judge Bell for dissenting (sadly, the sole dissenter), stating in full: "I adhere to the views expressed in the dissenting opinion in Cotton v. State, 386 Md. 249, 872 A.2d 87 (2005)." Jon Katz.

Like pro-lifers who attack Roe v. Wade at the edges -- knowing that Roe is here to stay for quite some time (at least before Chief Justice Roberts and Justice Alito joined the Supreme Court), many police and appellate government lawyers attack and use Miranda v. Arizona with a similar approach. 

This state of affairs frustrates many of my clients, who see at the frontline the repeated advantage taken by police of the circumstances where Miranda rights need not be read. First and foremost, the police need not mention Miranda before the suspect is in custody. This is why cops repeatedly visit suspects, talk at length with them, and do not arrest them before giving the suspects a chance to spill the beans. Similarly, cops often will delay reading Miranda rights to an arrestee in the hope that the arrestee will blurt out incriminating words (e.g., "Hey, that's not the bag of cocaine I just sold; I sold a bag half its size"). A particularly common situation is the battery of questions cops ask people stopped for traffic violations ("How much did you have to drink? When? Where"). In the last instance, the courts have created a legal fiction, generally allowing such non-Mirandized questions and answers into evidence even when we all know the driver is not free to leave at the time such questions are posed. 

For criminal defendants thinking of testifying at their trials, they need to think hard. First, prosecutors generally are permitted to ask the testifying defendant to confirm his or her prior felony and theft-related convictions, because juries generally are permitted to take such prior convictions into account in judging a witness's credibility. Second, prosecutors generally are permitted on cross examination and through rebuttal testimony to impeach a defendant's testimony with any alleged factual proffers previously provided by the defendant in seeking a plea deal. (The proffer approach is particularly alive and well in the federal criminal system). 

Third, and perhaps less known to the public, non-Mirandized statements by the defendant that are not deemed coerced nor involuntary by the trial court also are admissible for impeachment purposes. Harris v. New York, 401 U.S. 222 (1971). Dissenting Justice Brennan succinctly pointed out the wrongheadedness of Harris:

The Court today tells the police that they may freely interrogate an accused incommunicado and without counsel and know that although any statement they obtain in violation of Miranda cannot be used on the State's direct case, it may be introduced if the defendant has the temerity to testify in his own defense. This goes far toward undoing much of the progress made in conforming police methods to the Constitution.

Harris, 401 U.S. 222, 232. 

This Harris rule also is followed in Maryland, Virginia, and Washington, DC. See Brown v. Maryland, 373 Md. 234 (2003); Castellon v. U.S., 864 A.2d 141 (D.C. 2004); and Dixon v. Com., 270 Va. 34 (2005). 

For criminal suspects, this all adds up to knowing your rights, and repeating one of my favorite mantras: "I maintain my right to remain silent. I want a lawyer. I maintain my right to remain silent. I want a lawyer. I maintain my right to remain silent. I want a lawyer."  Practice this mantra again and again so that it effortlessly flows off the tongue when encountering the police. See the Busted video. Practice this mantra with your friends and acquaintances playing the roles of the slickest and meanest police. By Jon Katz.

ADDENDUM: This posting has been updated here and in our November 29, 2006, blog entry.