Sotomayor Takes Active Role on Court's First Day

By Robert Barnes
Washington Post Staff Writer
Tuesday, October 6, 2009; A03

The Supreme Court began its new term Monday with an inquisitive new justice and a case from Maryland about how long police must honor a suspect's request for an attorney.

Justice Sonia Sotomayor displayed no reticence on the first day of her first term on the court; in the two cases on the docket, she asked as many questions and made as many comments as Chief Justice John G. Roberts Jr. The only sign of her newness was that she at times forgot to turn on her microphone before posing a question.

President Obama's appointee to the court was far more active Monday than in her first hearing as a justice, when the court held a special rehearing last month on a campaign finance case.

Sotomayor, a former prosecutor, was part of an animated bench for the first case of the 2009-2010 term. That case asks whether a suspect's request for an attorney means that police cannot question him again years later if more information in the case becomes available.

Michael Blaine Shatzer was imprisoned at the Maryland Correctional Institution in Hagerstown for child sexual abuse in 2003 when police asked him about allegations in another case: that he had sexually abused his 3-year-old son.

Shatzer refused to answer questions and asked for a lawyer. A police officer stopped the questioning, and the case went dormant.

Nearly three years later, Shatzer's son was old enough to offer new details, and a different police officer returned to prison to question Shatzer. This time, he waived his Miranda rights and made incriminating statements that led to his conviction.

But the Maryland Court of Appeals, the state's highest court, said Shatzer's statements could not be used. It pointed to a 28-year-old U.S. Supreme Court decision that said once a suspect asks for an attorney, "he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation."

The rule was to protect a suspect from self-incrimination in case police tried to badger him into a confession before he, as Justice Antonin Scalia said Monday, "lawyered up."

Maryland Attorney General Douglas F. Gansler, supported by the United States, said there was no allegation in Shatzer's case that police badgered him into a confession. He said that police should be able to question a suspect again once there is a "break in custody" -- in this case, that police stopped questioning Shatzer and released him back into the prison's general population.

In that case, Gansler said, police were free to ask him again about the molestation allegations and use his statements, since he did not ask for an attorney the second time.

Justices seemed generally supportive of Gansler's point that police should have been allowed to question Shatzer again, but they had a hard time agreeing on how the rule should be changed.

Roberts worried that police could repeatedly question and dismiss a suspect who asks for a lawyer.

"You know, just sort of catch-and-release, until he finally breaks down and says, 'All right, I'll talk,' " Roberts said.

Public defender Celia A. Davis, representing Shatzer, said the court should not change a rule that sets clear guidelines for law enforcement.

Creating exceptions, she said, "introduces uncertainty into the determinations of what constitutes custody and what length of time might be adequate to excuse the protection."

But the justices wondered what could be done about a suspect who asks for a lawyer, never actually receives one or is convicted, and then is questioned years later, perhaps for a different crime.

Justice Samuel A. Alito Jr. posed this hypothetical: What if someone was arrested for joy riding in Maryland, invoked his Fifth Amendment protection, and was never convicted? Could police in Montana question him as a murder suspect in Montana 10 years later?

When Davis said no, Alito replied: "And you don't think that's a ridiculous application of the rule?"

When Alito raised the hypothetical ante to a crime committed 40 years later, Sotomayor joined in.

"He is arrested for joy riding, he is let go, and you are saying that for 20, 40 years he is now immunized from being re-approached by the police?" Sotomayor asked.

The case is Maryland v. Shatzer.

Sotomayor's active questioning was in tune with her reputation on the U.S. Court of Appeals for the 2nd Circuit in New York. But all the justices -- save Justice Clarence Thomas, whose custom is not to ask questions at oral arguments -- were unusually involved in the session.

Some of them sat in new spots because of the court's tradition for seating the justices by seniority. Thomas chatted frequently with new seatmate Scalia, and he and Justice Stephen G. Breyer spent time looking from their new vantage points at something on the ceiling.

Likewise, Justice Ruth Bader Ginsburg frequently talked to Justice Anthony M. Kennedy, as she now sits to his immediate left.

Research director Lucy Shackelford contributed to this report.

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