JUSTICE Antonin Scalia accused six of his Supreme Court colleagues on Monday of creating "a veritable fairyland castle of imagined constitutional restriction upon law enforcement." The case at issue involves the admissibility of a murder confession made by a Mississippi escaped convict. The majority's reasoning, writes Justice Scalia for himself and the chief justice, goes beyond concern for an accused person who doesn't know his rights or is coerced into abandoning them. Here, the dissenters maintain, the court is protecting the accused from the consequences of his own voluntary "foolish mistake" in talking when he should have remained silent.
Robert Minnick and a fellow inmate escaped from a county jail in Mississippi and are alleged to then have murdered two men who interrupted their burglary of a mobile home. Mr. Minnick was arrested in California and advised of his Miranda rights, which he refused to waive. On several occasions, he consulted with an attorney who had been appointed to represent him. The attorney, of course, told him to say nothing and sign nothing.
A few days later, a deputy sheriff arrived from Mississippi, again read him his rights and proceeded to talk to him about family news and their mutual friends in the county jail. In the course of this talk, Mr. Minnick responded with details about his escape from the jail and his participation in the double murder at the mobile home park. On the basis of this confession, he was tried, convicted and sentenced to death in Mississippi.
Justice Anthony Kennedy, who wrote the majority opinion, doesn't see that second interview -- after Mr. Minnick had asserted his Miranda rights and seen an attorney -- as entirely innocent. Upholding the conviction, he warned, would create a loophole for police, allowing them to continually badger an accused after his initial consultation with a lawyer in the hope that eventually he would tire of asking that his lawyer be called and would confess. This would undermine the protection granted by Miranda by requiring the prisoner to reassert his rights and demand to see his lawyer every time he was approached anew.
That reasoning sounds right to us. The protections afforded by Miranda are so important, so critical to maintaining the integrity of the criminal justice system, that they must be seen with great clarity by both prisoners and police. While an accused can at any time voluntarily waive his rights and offer a confession on his own initiative, the police should not be able to reopen the interrogation in the absence of counsel once the prisoner has asked for and seen a lawyer. It is easier and fairer to all concerned if the request for an attorney creates a presumption that will be honored throughout the process or until it is voluntarily withdrawn.