A few years ago, I spent six months doing a story on a squad of homicide detectives in lower Manhattan. I was curious about, among other things, whether they felt "handcuffed" by the need to give Miranda warnings once an accusatory relationship had developed between them and a suspect. A couple of the detectives were of the firm opinion that until all the justices of the Supreme Court worked a few police tours -- preferably at night in certain neighborhoods where no cabs ever stop -- they ought to quit making life even more complicated for cops.
Most of the detectives, however, especially the older ones, had no beef against the Miranda decision. "It took a while for me to admit it," one of them told me, "but having to give those warnings made us clean up our act. This way, we make better cases, and more of them stick."
But police attitudes are beginning to shift again, as the Supreme Court, in the words of Justice William Brennan, increasingly engages in "a balancing process in which the judicial thumb apparently will be planted firmly on the law enforcement side of the scales."
In the last term, the court began to eviscerate the exclusionary rule (unconstitutionally seized evidence cannot be used in court). And in another case a start was made at weakening the protections of Miranda when the court declared there are times when police can ask questions first, and only afterward need give the accused their rights. This new exception comes when "public safety" -- a rather broad and uncertain term -- is involved.
In a 6-3 decision in March, Oregon v. Elstad, the court delivered so fierce a blow to Mranda that Justice Brennan, the Great Dissenter of this time, felt impelled to say that the high court is becoming "increasingly irrelevant in the protection of individual rights."
In this case, police obtained a confession without giving the suspect his Miranda warnings, aware that the confession could not be used in court. The police finally did inform the suspect of his rights to remain silent, have a lawyer present and have the state pay for a lawyer if he could not afford one. The man confessed again. The majority of the court said that although the first confession was inadmissible, the second was okay because he had been given his rights. But as any cop knows, once someone has confessed, he figures it's all over. The cat is out of the bag and can never be put back in.
Or as Michigan University law professor Yale Kamisar told me: "It's a silly concept -- telling someone he can remain silent and has a right to a lawyer after he's already made an incriminating statement. 'Why tell it to me now?' The reasoning of this decision would indicate that the doctrine of excluding the fruit of the poisonous tree no longer applies to Miranda violations. If this is so, there would be nothom using the information in the first impermissible confession to get a search warrant on the basis of probable cause."
Fred Joseph, an attorney in Hyattsville, is legal director of the Prince George's County Chapter of the ACLU. He also has a number of cops as clients, usually in administrative matters. "They tell me these days," says Joseph, "that the Supreme Court is letting them do whatever they want. These police officers now see the Constitution as a document of technicalities, not a document of fundamental individual rights." And they say to Joseph, knowing of his ACLU work, "your technicalities are down the tube now."
Recently, a civilian client of Fred Joseph, a nurse, Jane Bolding, was held by police for 35 hours. Suspected of a mercy killing at Prince George's County General Hospital, "she was in an accusatory context from the moment they knocked on the door of her house," says Joseph. "During questioning, when she asked to leave, she was told she could not. Whenever she fell asleep, she was awakened. Four lawyers tried to get in to see her during those hours of questioning, and
they were not let in. I have reason to believe the police involved had consulted the Oregon
After 24 hours, the nurse allegedly wrote an incriminating "apology," which police call a confession. It was not until 11 more hours later, Fred Joseph claims, that she was given her Miranda rights. In this case, the cops may have been a bit too enthusiastic in celebrating their new edge from the Supreme Court. The state's attorney has been distancing himself from the case. In future cases, police are less likely to act as if they were in a B movie of the 1930s.
"When I started practicing law 15 years ago, Fred Joseph says, "if your client got a bad deal in the trial court, you figured there'd be a fighting chance in the appellate courts -- with the Supreme Court looking over everyone. Today, if you don't win at the lowest level, it's downhill from there."