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Holding Court with Joan Biskupic

Holding Court
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Court Urged to Repeal 'Miranda' (April 9)

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Friday, April 14, 2000; 11 a.m. EDT

"You have the right to remain silent. Anything you say can be used against you in a court of law. You have the right to the presence of an attorney to assist you prior to questioning. If you cannot afford an attorney, you have the right to have an attorney appointed for you." These Miranda rights are ingrained in the American culture, dictated by a 1966 Supreme Court ruling and popularized in television police dramas and other media. Miranda v. Arizona prohibited confessions from being admitted at trial unless a suspect in custody was first told of his privilege against self-incrimination.

But now they are under challenge in a case to be heard at the court April 19. The question is whether Congress effectively reversed the Supreme Court's requirement that police read suspects their rights. The 1968 law, which has never been enforced and only last year was revived by a federal appeals court, said confessions could be used even when the warnings weren't given, as long was the confession was voluntary. The new case has provoked numerous "friend of the court" briefs, including from police groups seeking to lift the requirement that a confession can be used at trial only if they read the warnings. Have you ever been "Mirandized" or have personal experiences on either side of the warnings? Join "Holding Court" this week for a discussion of the new Miranda challenge and other court developments.

Joan Biskupic has covered the Supreme Court for The Washington Post since 1992. Co-author of the third edition of Congressional Quarterly's encyclopedia on the Supreme Court, she holds a law degree from Georgetown University. Biskupic covered government, politics and legal affairs for CQ's Weekly Report before joining The Post.

She answers your questions on the Supreme Court and legal affairs on Fridays at 11 a.m. EDT. The transcript follows:

Joan Biskupic: Welcome. The Supreme Court is headed into its most interesting round of oral arguments for the term, beginning with the Miranda case next week. Then after that, it will take up abortion rights, a Boy Scout exclusion of gay members, and a California blanket primary law that allows voters to cross party lines. So, let's talk about Miranda or whatever else is on your mind.

Brick, N.J.: It does not really make a difference if you are Mirandarized or not, the loop holes of our legal system can get you out of anything. I would like to know why all the fuss over this or any other law, since simply few are enforced in any event. I have worked for our legal system for over twenty years and the imperfections far outweigh any law, rule or requirement that should be upheld by the court.

Joan Biskupic: I wonder how many readers share that perspective. Sure there are loopholes, but many people believe the hand of government is so strong and potentially coercive that safeguards should be in place to protect suspects' constitutional rights. The idea behind the Miranda warnings was that unless cops told people in custody of their right against self-incrimination, suspects would be unduly pressured to talk.

Canton, Ohio: What is your take on the Boy Scouts of America vs. Dale case? It appears that this decision could be one of the more important ones regarding religious and first amendment rights in a long time. What and whom is the decision of this case going to effect if anything at all?

Joan Biskupic: Interesting question. Lots of religious groups have entered the case, on both sides. (The majority of scout troops are based in churches.) The question is whether the Boy Scouts in New Jersey can be forced to admit a gay scoutmaster because a state law forbids discrimination based on sexual orientation.... So the case will definitely affect the scouts and other groups in N.J. But lots of other states have been passing laws against bias based on sexual orientation and there could be pressure on scouts elsewhere to admits gays.

New York, N.Y.: Before the Miranda ruling, how were suspects informed of their rights? How did the public defender system work?

Joan Biskupic: There was no formal way, and if a suspect was being interrogated by police and hadn't been told he had the right to remain silent and that he could ask for a lawyer, there was a good chance he simply didn't know of the right against self-incrimination. ... Now, the dissenters in Miranda said that wasn't necessarily such as bad thing, for law enforcement at least. Justice Harlan wrote that not all pressure to talk is bad (as long as it's not blatantly coercive). ... I'm not sure how the public defender system worked back then, but I presume that if a suspect had already been assigned a lawyer at the time of questioning, the lawyer would have warned him that he could remain silent.

Washington D.C.: Why is the Supreme Court bringing up the abortion question on an accelerated schedule?

Joan Biskupic: It's not really an accelerated schedule. The Nebraska case came to the court last January on a regular schedule. The 8th Circuit had ruled in Sept. that the Nebraska "partial birth" ban was unconstitutional. But the justices indeed could have waited for a second, conflicting case (from the 7th Circuit) to be fully filed at the court. That would have taken a few more weeks and likely pushed the dispute into next term ... One possibility is that the justices realized there was a conflict among the lower courts over how far states can go to regulate abortion procedures .... and believed that if they were going to have to weigh in eventually, they should do it immediately.... But your question is on-point. The justices rarely jump into difficult issues.

Mississippi: What are your observations on oral argument last month in Reeves v. Sanderson Plumbing (age discrimination), and any thoughts about what the decision will be?

Joan Biskupic: This is a good case, testing what proof a worker has to put up in an age bias case, what sorts of evidence are needed to show the employer's allegedly unlawful motivation against an older employee. But I can't tell you how oral arguments went because the case came up on a busy day and I had to leave the courtroom. The labor reporters who stuck around made it sound as if the justices were pretty split in their views. All will be clearer (we hope!) sometime in May or June when the justices rule.

Weston, Mass.: Which will be the fastest site to receive U.S. Supreme Court opinions once they are handed down, the Cornell Law School Web Site or the new U.S. Supreme Court Web site? Will you be able to e-mail your favorite Supreme Court justice through the court's new Web site?

washingtonpost.com: How long has the court Web site been in the works? It seems the justices have been proudly anti-technology for a while.

Joan Biskupic: Terrific questions. Alas, there will not be two-way communication with the justices in their new web-site. So, there's no way to e-mail a favorite one. (A few of the justices are on the Net, at their homes, but I don't have any addresses for you.) We'll have to wait and see how fast their new system is... it begins Monday. Even though the court will be the source for opinions, it's known for its plodding pace, so the university site might end up faster in the beginning. ... And as to the questions from washpost.com... yes, the court is notoriously anti-tech. But the web-site has been in the works for over a year. I do have to admit I was surprised when they announced it was ready to go for April 17.

Washington, D.C.: What were the politics surrounding the passage of the '68 law to negate Miranda? There was a Democratic president and a Democratic Congress, yet a very conservative law was passed. Was there a "let's get tough on crime" mentality gripping the nation?

Joan Biskupic: Very much so. The law sped through Congress and was written purposely to reverse the "soft on crime" Warren Court. And it's interesting that you mention Johnson. You can't believe how many times I've heard speakers refer to the law as being signed by Richard Nixon. Of course, Nixon wasn't president then, but he came into office with a "tough on crime" stance and his administration vigorously opposed the Warren Court's criminal law decisions. ... But in 1968, street crime was a big issue for Dems and the GOP.

Washington, D.C.: I know it isn't your beat, but based on your knowledge of the court system, can you shed some light on what's going on in the Elian Gonzalez case? Yesterday, the family's case was turned away by a state court, then the little boy's return was blocked by a federal court. What now? Who has final say – INS or the attorney general? Could a case like this end up at the Supreme Court? And (last question) could the family be charged with kidnapping if they refuse to turn the boy over, or would it be a contempt charge?

Sorry for the litany. Thanks!

Joan Biskupic: That's OK. This is such an interesting case, legally, politically, culturally. Right now, as I understand it, we have the 11th Circuit's order blocking removal of the boy from the country (although he is now officially – only officially, not really – in the custody of the INS)... The order puts everything on hold while negotiations continue... The Attorney General is supposed to have the final say in these immigration matters. By not forcing the issue (the deadline yesterday for the family to turn over Elian came and went), it seems that Reno is seeking a little breathing space for all parties while talks continue. If family members defy a final court order to turn over Elian, yes, they definitely can be sanctioned.

Charlottesville, Va.: Do you have the address for the new Supreme Court Web site? I'm guessing it will be something like "ussupct.gov" or "supremecourt.gov."

Joan Biskupic: Here it is: www.supremecourtus.gov. .... and if somehow that doesn't work, call the court public information office at 202-479-3050.

Wayland, Mass.: Will Justice Souter testify before the New Hampshire House of Representatives Judiciary Committee if it requests his testimony about the recusal practices of the New Hampshire Supreme Court in the course of the Committee's impeachment inquiry targeted towards three current members of the N.H. Supreme Court?

Joan Biskupic: Hmmm. I doubt it. I'd be surprised if they asked and if he agreed. Souter was on the N.H. Supreme Court 1983-1990.

washingtonpost.com: In a discussion yesterday, Judicial Watch chairman and founder Larry Klayman said his organization has never been found to bring frivolous lawsuits. What's your impression about how the organization is viewed within the legal community?

Joan Biskupic: Not with overwhelming respect, to put it charitably. ... But certainly everything he's into is politicized, so it's hard to get a neutral view from the legal establishment.

Wood River, Ill.: Michael Reagan, a local lawyer, has been recommended by Sen. Dick Durbin for a vacancy in the federal courts in southern Illinois. Clinton hasn't nominated him yet. Any word on when and if Clinton will nominate some more judges?

Joan Biskupic: No sure about the situation in Illinois, but as I've said in the past, there are likely to be a few more (largely non-controversial) nominees approved in the final days of the congressional session. Judicial nominees get caught up in the horse-trading, like everything else. Individual senators have their favorites and try to push them through before the administration changes.

Alexandria, Va.: Hello:

This is not a Supreme Court question – I hope you have the time to answer it. I am confused regarding the incident where a young girl, Haeun Yoon was hit and killed walking down Route 7 on March 8. Why does the hit and run case of the accused, Jane Wagner, belong in juvenile court?? I thought juvenile court was for juveniles – not adults. Any help to clear this up would be appreciated.

Thank you.

Joan Biskupic: I don't know what you've been reading... but Jane Wagner has been charged with felony hit-and-run... and if I'm remembering right, she's 29 or 30, and definitely not being tried in juvenile court. For those of you readers who don't know about this tragedy, the girl was hit last month after she got out of a car that her mother was driving (she and her brother reportedly had had a fight). Wagner has said she thought she hit a deer.

Washington, D.C.: Now that the Supreme Court is going on-line with a Web site, is there any chance that oral arguments will ever be televised? Are all of the justices opposed to televised oral arguments, or is it just the Chief Justice?


washingtonpost.com: Streaming video, maybe? Wonder what Justice Souter would say to that!

Joan Biskupic: Justice Souter has said the court will have oral arguments only over his dead body. It ain't going to happen for a long time. I think some of the justices would be open to the option, but as a group they are firmly opposed. Which is a real shame. So few people can get into the courtroom, and the arguments – affecting so much of American life – are important to us all.

Porterville, Calif.: Where can I find information on the U.S. Supreme court case Rhodes vs. Chapman from 1981?

washingtonpost.com: Full Text: Rhodes v. Chapman (1981) (FindLaw)

You can search the FindLaw database of Supreme Court decisions back to 1893 on search opinions page of our Supreme Court Special Report.

Joan Biskupic: There's your answer.

Jasper, Ala.: How many veterans' cases get heard by the Supreme Court of the United States? Why are the writ of certiorari denied when cases of the same arguments before a lower court has different judgments. Is this not what the Supreme Court is there to hear? Where is a veteran's justice if this high court will not use its power to straighten out the system of veterans claims. (Re: 95-1109 COVA case and 98-2155)

Joan Biskupic: Hmmm. Certainly veterans' cases are rare at the high court. And a split in lower court rulings is not enough for the justices to take an appeal. The justices also look for national significance, timeliness ... Certainly, it's frustrating for many people who believe they have good cases.

Joan Biskupic: That's it for today. Thanks to all who joined it. We may see escalating action on the Elian dispute, taking it to the justices. But even without that, the next week is going to be a big one at the Marble Palace. See you next Friday.

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