0:00:00.0 Speaker 1: We'll hear argument first this time in case 08680, Maryland versus Shatzer.

0:00:09.7 Leon Neyfakh: Hey everyone, this is Leon from Fiasco and Prologue projects. On this episode of 5-4, Peter, Rhiannon, and Michael, are talking about Maryland v. Shatzer. This is a case about your Miranda rights. According to the court, when you invoke your right to an attorney, the cops don't have to give you one, instead they can just wait 14-days and try to interrogate you again.

0:00:33.0 Speaker 1: You bring him in, give him his Miranda rights, he says, "I don't wanna talk". You let him go, you bring him in, give him his Miranda rights, said, "I don't wanna talk, sort of catch and release until he finally breaks down and says, "Alright, I'll talk".

0:00:43.3 Leon Neyfakh: This is 5-4, a podcast about how much the Supreme Court sucks.

0:00:51.1 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have caused our nation to collapse, like Kyle Shanahan in the Super Bowl.

0:01:00.0 Rhiannon: Woah.

0:01:00.2 Peter: I'm Peter, I'm here with Rhiannon.

0:01:01.9 Rhiannon: Hello.

[foreign language]

0:01:02.9 Peter: Michael on vacation.

0:01:05.2 Rhiannon: Fucking vacation.

0:01:06.7 Peter: In Costa Rica. Although, I do think he would have appreciated my football metaphor.

0:01:11.7 Rhiannon: Yeah, he would have, but we hate him right now for being on vacation.

0:01:16.5 Peter: Unapproved PTO. Unsanctioned.

[laughter]

0:01:19.3 Rhiannon: You know what? This brings up something. I wasn't on an episode, it was just you and Michael, this was probably a few months back now. But a law professor at the law school where I work came up to me and said that she was Googling the pronunciation of a case name, and our episode came up and she listened to the episode and she said, "I really didn't like the top portion of the episode", and I was like, "What didn't you like?" Oh my God. And she was like, "Michael and Peter were bullying you for not being on the episode".

[laughter]

0:02:00.8 Rhiannon: And I was like, "Oh, it's okay. This is friendly. We banter, I make fun of Peter, I make fun of Michael. They're not... You know what I mean. It's okay. It's alright". She was like, "They were very mean".

[laughter]

0:02:18.9 Peter: All I can think when I hear something like that is that I can't imagine what that person would feel and think If they witnessed us being actually mean or what we felt was actually meant, and I maintain that we should be bullying whichever host is absent at any given time.

0:02:35.5 Rhiannon: That's right.

0:02:35.9 Peter: It just makes sense, it's our right as podcasters.

0:02:37.4 Rhiannon: That's right. So Michael, watch your back. I'm planning to push you into a locker real soon, Bud.

0:02:43.0 Peter: That's right, baby.

[laughter]

0:02:46.2 Peter: Alright. Well, this is the second time I've recorded a podcast the day after The Chiefs won the Super Bowl, and I am hung over, folks, and the only thing I will say about it is that I believe that God is smiling upon me.

0:02:58.1 Rhiannon: Yeah, everything's coming up, Peter.

0:03:00.4 Peter: It is.

0:03:00.5 Rhiannon: Good for you.

0:03:01.0 Peter: Thank you, I've done a lot to be here.

[laughter]

0:03:05.4 Peter: Yeah, we have completed our series on the Federalist Society.

0:03:09.6 Rhiannon: Thank God.

0:03:09.8 Peter: And we are back to your regular scheduled programming folks. We're doing cases again. And today's case, Maryland v. Shatzer, we're talking about Miranda rights. I think almost everyone knows that if the police have you in custody, you do not have to talk to them.

0:03:27.0 Rhiannon: Nope.

0:03:27.5 Peter: You have the right to remain silent and you have the right to an attorney. And if you do request an Attorney, the police have to stop interrogating you. This is like Law and Order 101, right? The rules that we all know and love.

0:03:41.9 Rhiannon: Yeah. The police, every single time the person says, "I'm not talking to you without my attorney", and the police goes "Goddammit", they hate it.

[laughter]

0:03:52.0 Peter: This case is about what happens if you request an attorney, the cops stop questioning you, and then some time in the future, they start questioning you again. This case involves sort of an extreme example where a man requested an attorney, the cop stopped interrogating him, and then a couple of years later, they brought him back to talk about the same issue and started interrogating him again. The cops argue that this was fine, and the Supreme Court in a unanimous decision, agreed. And in that process, they created a sort of very weird loophole in your Miranda rights. So I think we'll do a little bit of legal history before we get into the facts here, and the legal history is very simple, but important. First, you have Miranda v. Arizona, a case, we all know and love, which say that you have all these rights as a person who is in police custody, and so in order to protect those rights, we are requiring cops to read them to you.

0:04:55.0 Rhiannon: Yep, that if you are in custody, you're being detained and you are being interrogated by the police, the police have to tell you that you have certain rights, and then if you're gonna talk to the police anyway, you have to give a knowing and voluntary waiver of those rights. You say, I know that I have the right to remain silent. I know that I have the right to an attorney. I am waving those rights and I will talk to you guys now. That's Miranda.

0:05:19.8 Peter: Yeah. And then you have Edwards v. Arizona, a case from 1981. In that case, a suspect was arrested, was interrogated, he invoked his right to an attorney, and then questioning stopped. He was held in the jail overnight, and then the very next morning, cops re-approached him to interrogate him again, and the court said, "No, no, no, you can't do that".

0:05:45.4 Rhiannon: [laughter] He said stop.

0:05:47.5 Peter: When someone invokes their right to counsel, you have to stop questioning and you can't restart it again, at least until counsel has actually been provided to them. And so, that's the basic rule that we're operating from here. Once someone asks for an attorney, the cops need to stop questioning until an attorney has been provided. But what we get here is a case that sort of like tests the extremes of that rule a bit.

0:06:14.1 Rhiannon: Yeah, I think that's right. And I think because we're on the outer bounds of these extremes and the facts of the crime that the defendant is being accused of here, it's bad and people don't like it, and people don't like this guy who's accused of these kinds of things, and so what you get then out of that... And we'll discuss this a little bit later. What you get then is kind of an easy case for the Supreme Court to do some damage to Miranda on. Right?

0:06:41.3 Peter: Yeah.

0:06:42.1 Rhiannon: So let's talk about the case here, let's get into the facts. Just a quick heads up for listeners, the criminal defendant in this case is accused of crimes involving sexual abuse and sexual abuse of a child. We're not gonna get into those facts or the specifics of those allegations, it's just the crime that he was charged with, so take some care as you listen. So in 2003, Michael Shatzer was serving a prison sentence in Maryland for a case involving sexual abuse of a child, he had already been convicted, he was serving a sentence. While he was in prison, though, a police investigation opened about a separate, a different allegation of sexual abuse that he had allegedly committed. So a police officer from the Hagerstown police department went to the prison where Michael Shatzer was serving his sentence so that he could interview him, the officer went over the Miranda rights before beginning the interview, and Shatzer signed the form saying he was waiving his right to remain silent, he was waiving the right to counsel and he was willing to answer questions.

0:07:40.7 Rhiannon: So the officer starts the interrogation, starts to ask questions about that new accusation of sex abuse and Shatzer stops the interview. He says, "Oh wait, I'm confused". He says that he had been thinking that the officer was there to talk about the prior offense, the crime for which Shatzer was serving a prison sentence already. The officer clarified that he was there investigating a new allegation, and at that point, Shatzer invoked his Miranda rights. He said he did not want to talk to the officer without an attorney present. So the interview ended, Shatzer went back to general population, and that was that. There's a little Miranda vignette for all of you law students in criminal procedure right now. So over the Hagerstown Police Department, that file was actually closed, that officer closed the file, it was two and a half years later that the same allegation comes up again at the police department, this time with new details from the alleged victim. So the police department opens up a new case and it's a new detective this time that's assigned to the investigation, that new detective goes down to the prison to interview Michael Shatzer. This time, the detective gives the Miranda warnings and Shatzer signs the form saying that he's waiving his rights, he's okay with answering questions, and he does answer questions.

0:09:01.7 Rhiannon: There's about a 30-minute interrogation during which Shatzer says some things that are incriminating, and then he additionally agrees to take a polygraph exam, a lie detector test, he does that, and the detective administering the polygraph tells him he failed, at which point Shatzer gets upset, he starts to cry, and he incriminates himself further by saying, "I didn't force him. I didn't force him." Shatzer waived his Miranda rights. Answered questions, gave incriminating statements. So Shatzer is charged with this new crime, this new sexual abuse offense, and at trial his defense attorney argues that the incriminating statements he made should be excluded from the trial because this was in violation of his Miranda Rights. Remember, like Peter said, Under the case called Edwards, if someone says, I do not want to answer questions without an attorney present, then the police can't just re-approach that person and start asking the questions again. The interrogation is over until the person has an attorney provided. But the judge in this case, when Shatzer's defense attorneys brought that argument, the judge in the trial said that rule, the Edwards rule didn't apply here because there had been a break in custody.

0:10:16.1 Rhiannon: Now remember in the Edwards case, that guy was interrogated, said he wanted an attorney, he was kept overnight in jail and the police re-approached him for interrogation, so in that case, that custody was all one event, there was no break in custody, he hadn't been let out of jail. Here, the judge said there's a break in custody because of how much time had passed, this was two and a half years, and also Shatzer, yes, was detained for the purpose of being interrogated with the police officer at the prison. But the "break in custody" was that after the interrogation, Shatzer was released back to general population in the prison. So for those reasons, the judge says Edwards doesn't apply here, these incriminating statements do get included in the trial. Shatzer is convicted of the new offense, given a prison sentence and appeals on this basis that his Miranda rights were violated, and that's how it gets to the Supreme Court.

0:11:20.4 Peter: And so, you can see the problem that the Supreme Court is sort of being asked to solve. We have this rule saying the cops can't re-approach someone and interrogate them again after they've invoked their right to an attorney, but this is a situation where the interrogation has ended, this guy return to his prison sentence for a couple of years, and then a sort of a whole new interrogation has begun. So what are the outer boundaries of this rule, that's what the court's being asked to establish, and Antonin Scalia writes the majority, and what he does is basically craft a new rule, they say, "Alright, so the whole point of Miranda writes is to protect people who are in police custody. So if someone's being interrogated and they request a lawyer, the police have to stop. But if the police release him from custody, they can at a later date initiate another interrogation, so long as he is read his Miranda rights again", et cetera. They're basically saying if there's been a break in what we call custody, you can re-initiate the process. But there is a concern here if you just cease questioning, let someone go and then immediately apprehend them again, and attempt to interrogate them again, that would sort of defeat the purpose of having to stop interrogating them to begin with, if you can just start over right away.

0:12:42.3 Rhiannon: Right, right.

0:12:45.5 Peter: So to address this, the court says, "Alright, well, let's say the police have to wait 14-days". Now, where did they get that number? They basically made it up.

0:12:56.7 Rhiannon: That's right.

0:12:57.1 Peter: Here's the quote, "We think it appropriate to specify a period of time to avoid the consequence that continuation of the Edwards presumption will not reach the correct result most of the time. It seems to us that period is 14-days, that provides plenty of time for the suspect to get re-acclimated to his normal life, to consult with friends and counsel and to shake off any residual coercive effects of his prior custody".

0:13:23.5 Rhiannon: Sure. [laughter]

0:13:25.1 Peter: Okay, I do want to ruminate on this briefly. For the record, I actually don't think this is like a terrible rule in a vacuum. It's not crazy that you would say, "Okay, well, this is a totally separate interrogation, but cops can't just keep picking someone up and re-interrogating them, we need to sort of create a buffer period, and not only that, but we're gonna create a very specific buffer period so that cops can't get a little too creative". Right?

0:13:56.9 Rhiannon: Yeah, it's a little... You've said this about John Roberts' writing before, there's an appearance of logic, right, they're on to something in terms of less fashionological rule, but it's really missing like what it is we're supposed to be protecting, what it is we're supposed to be limiting here.

0:14:14.9 Peter: Yeah, I mean, first of all, this is very rich coming from Scalia, who often gets very indignant about what the law is and how it shouldn't be dictated by the whims of judges, et cetera, right. To just be like, "Yeah, 14-days. That sounds about right".

0:14:31.1 Rhiannon: Right. Yeah, yeah.

0:14:32.9 Peter: Gavel gavel gavel.

0:14:33.9 Rhiannon: Two weeks. Yeah.

0:14:35.5 Peter: Yeah. That's enough time to shake off the coercive effects...

[laughter]

0:14:40.8 Peter: Fucking... Okay, what are you? A fucking psychologist. Is that how long it takes, two weeks?

0:14:44.5 Rhiannon: Exactly. Yeah.

0:14:45.9 Peter: Now, there's another issue here, which is that in this particular case, when the police released Shatzer from their custody, they're just releasing him back into prison, right, he was already in prison.

0:14:57.3 Rhiannon: Yeah, custody in this case means Miranda custody, the custody that we put you in only for this interrogation.

0:15:03.1 Peter: The interrogation room, so to speak.

0:15:05.1 Rhiannon: Exactly, exactly. And so when you're released from that custody, the court is saying "There's this 14-day buffer period and the police can re-approach", but in this case, Shatzer is released from custody into fucking custody, he's in prison.

0:15:17.9 Peter: Right. Into prison. Right.

0:15:19.3 Rhiannon: Yeah, yeah. [laughter]

0:15:20.1 Peter: So, there's an open question of whether he really ever exits from underneath the metaphorical umbrella of police coercion in the same way that a free citizen would. Scalia says, that what matters is that the person returns to their "normal life", which is sort of like a weirdly vague phrase to use, but he says like, "Look, prisoners are used to being in prison, that's their normal life, so they're returning to their normal life when they go back to prison". Now, of course, there's a concern here that the police who interrogated you might have control over your living conditions while you're in prison, right. So if they question you, then release you back into the prison population, you're sort of still in their custody, perhaps. It's an argument you could make.

0:16:09.3 Rhiannon: Absolutely.

0:16:10.1 Peter: Now, Scalia says, "The former interrogator... " meaning the cop who was doing the interrogation. "Has no power to increase the duration of incarceration, which was determined at sentencing, and even where the possibility of parole exists, the former interrogator has no apparent power to decrease the time served." All of which is true, technically. Like the cop who interrogated you can't increase your sentence single-handedly, but anyone with knowledge of the prison system knows that a cop who wants can make a prisoner's life miserable, right.

0:16:44.0 Rhiannon: Absolutely.

0:16:44.7 Peter: He still holds coercive power over the prisoner. That's the very obvious reality that Scalia completely avoids here in order to dodge this massive looming question of whether this is custody when they release him back into prison.

0:17:00.7 Rhiannon: Yeah. Yeah, effectively, this majority opinion really treats this situation as if Michael Shatzer is not in prison, and that when the first officer interrogates him about these new allegations and then releases him because Shatzer says, "No, I won't talk to an attorney". The majority is basically acting like Shatzer went home and truly did go back to whatever normal life is, like live with your family. You have access to consultant attorney, maybe if you want to, you're going to work every day, and then it's fully two and a half years later in this situation that he's re-approached by a police officer and interrogated, and so for the majority, they're just kind of like, "Yeah, I mean it's so much time. He went back to his normal life". And I think that brings up something that we referred to at the beginning of this episode here, where we are dealing in this case with a sort of set of extremes, I think a lot of people logically, even if you're not like pro-police, a lot of people logically are like, "Yeah, I don't know that it really offends me so much if after two years and more information in an investigation, a police officer is allowed to re-approach somebody, give them their Miranda rights and ask if they would like to talk again".

0:18:23.3 Rhiannon: Right. But the majority doesn't go as deeply as it needs to go and doesn't treat the things that Miranda is supposed to protect with enough care. I think because of what Michael Shatzer was accused of, he was already serving a prison sentence for child sex abuse, he is accused again of another instance of child sex abuse, and I think it is really, really hard for a whole system and certainly the Supreme Court to suddenly extend the protection of a constitutional rule to somebody who is accused of child sex abuse.

0:19:04.3 Peter: Yeah. As an old maxim, you know, bad facts make bad law. The facts here are very extreme. Right. This guy gets re-approached two years later. That's why this case is 9-0.

0:19:15.1 Rhiannon: Right.

0:19:15.7 Peter: Stevens has a concurrence where he disagrees with a ton of the majority, but he still agrees with the conclusion.

0:19:22.3 Rhiannon: Yep.

0:19:23.0 Peter: Because I think the conclusion is not super offensive even to me that this guy can be re-approached two years later. The problem is that when you take these extreme cases and try to build rules out of them, you build rules that don't just apply to extreme cases.

0:19:39.0 Rhiannon: Exactly.

0:19:39.1 Peter: You build rules that apply to a whole bunch of cases.

0:19:42.4 Rhiannon: Yep.

0:19:42.6 Peter: When you think about that 14-day requirement, that means that there could be a situation where a guy is in prison serving some time, gets interrogated on another charge, says "I want a lawyer". They say, "Alright, get outta here". Right back to prison. Bang, 14-days later, drag him back in, interrogate him again, lawyer, 14-days later. They can keep doing this trying to psychologically wear this person down.

0:20:09.1 Rhiannon: Yeah.

0:20:09.8 Peter: The court has created a situation where that is allowed. That is to me, inherently dangerous, you are allowing police to use the coercive power of their position to try to push someone towards confessing. That is the fundamental concern with Miranda. Right. That is what Miranda is trying to address, the coercive element in these interrogations, and the court has used these very extreme facts to craft a rule that in less extreme facts could actually result in plenty of police coercion.

0:20:42.5 Rhiannon: Absolutely. Yeah. And we should talk about the concurrences. Let's talk first about Clarence Thomas's concurrence.

0:20:47.8 Peter: Let's Talk about Clarence Thomas's concurrence.

0:20:50.6 Rhiannon: He Says that that Edwards rule, the rule that came out of the Edward's case, that you could not re-approach a suspect who had invoked his right to counsel until he had an attorney. Thomas says that rule should just apply to Edward's situations. Remember that person in the Edward's case had remained in jail overnight.

0:21:13.7 Peter: Yeah.

0:21:14.1 Rhiannon: Had invoked his right to counsel, stayed the night in jail, police re-approached him while he was still in jail. Thomas says, "Okay, we have the Edwards rule. Well, the Edwards rule should only apply to those limited situations". Here, Thomas says there's a break in custody. Thomas thinks that the break in custody of just being released back to general population in the prison is Michael Shatzer's break in custody and so the Edwards rule doesn't apply. Of course, police can reapproach. Thomas says the 14-day rule is dumb. Doesn't need to be 14-days, could be a few hours. Doesn't matter to him. [laughter]

0:21:51.5 Peter: To be clear, that's Thomas's objection.

0:21:53.5 Rhiannon: Right, right.

0:21:53.7 Peter: He's like 14-days?

0:21:54.8 Rhiannon: Yeah.

0:21:55.7 Peter: You guys made that up. Right.

0:21:56.0 Rhiannon: Right. Exactly.

0:21:56.6 Peter: Which is true. They did make it up, but the consequence of not having a 14-day rule is that police can just constantly re-initiate interrogations.

0:22:06.9 Rhiannon: Right.

0:22:07.1 Peter: He's basically saying, as long as there's a break in custody, the cops can snatch you back up again.

0:22:12.9 Rhiannon: Yeah.

0:22:13.1 Peter: Meaning that they can constantly get you in custody.

0:22:15.0 Rhiannon: Right.

0:22:15.7 Peter: Break the custody.

0:22:16.8 Rhiannon: Right.

0:22:17.2 Peter: Snatch you back up.

0:22:18.1 Rhiannon: Yeah.

0:22:18.6 Peter: It's so obviously fucking absurd.

0:22:21.8 Rhiannon: It's a meaningless rule.

0:22:22.7 Peter: He doesn't reckon even a little bit...

0:22:25.1 Rhiannon: No.

0:22:26.3 Peter: With the practicalities, except to say that the 14-day rule might prevent cops from gathering information.

0:22:31.8 Rhiannon: That's right. Yeah. He's like, "That's a high cost that the majority is going with and I don't like that".

0:22:36.4 Peter: Thomas really believes that like police officers are good faith heroes, like police officers in a movie.

0:22:42.1 Rhiannon: Oh totally. Oh, 100%.

0:22:43.9 Peter: Like a children's, like PAW Patrol level.

0:22:46.1 Rhiannon: Yes.

0:22:46.4 Peter: It's a child's view of how police work works.

0:22:50.3 Rhiannon: If Thomas was active on Facebook, like as Clarence Thomas, I'm sure he basically has the equivalent of a Facebook Finsta, but as Clarence Thomas as himself, he would definitely be like profile picture, like thin blue line flag, you know, like this, like Thomas is this guy...

0:23:06.3 Peter: Crucial.

0:23:06.7 Rhiannon: With police. Right.

0:23:07.8 Peter: Yeah.

0:23:08.1 Rhiannon: Now moving to the Stevens concurrence, this one I think is really good. It's so good that I wish it was a dissent.

0:23:14.3 Peter: Yeah.

0:23:14.7 Rhiannon: I think he's saying enough here that he is dissenting, even though the reason why it's a concurrence and the reason why this is a unanimous decision is Justice Stevens is saying, "Yeah, I do agree. The Edwards rule is not eternal".

0:23:29.2 Peter: Yeah.

0:23:29.8 Rhiannon: Right. If somebody invokes their right to counsel and the police let them go, yeah, it doesn't last forever. There is a time when police can reapproach. I get that Stevens agrees with that part of the holding, the rest of the majority opinion, Stevens is taking issue with in a way that I think is very meaningful, in a way that I wish it had been fashioned as a dissent. But anyways, here we are. What Stevens really goes after is that 14-day rule, and what he's saying is the majority in fashioning the 14-days of it all is really misidentifying what it is that we're supposed to be protecting when people are invoking their Miranda rights. Right. He says like 14-days. It's not just an arbitrary choice in terms of an amount of time. Like, okay, why not 10? Why not a 100 days? Why not not a month? Why not a year? You just chose 14-days out of a hat. But it's also getting wrong so much of what we understand from the Miranda case and so much of what we understand from the Edwards case, right, which is the importance of the right to counsel.

0:24:36.9 Rhiannon: When somebody who's suspected of a crime invokes their right to counsel, it should be taken seriously by law enforcement, it should be meaningful. It should hold some weight. Right. Part of the Miranda requirement in fact is informing a suspect that if they can't afford an attorney, then they will be provided with one. So if you've just heard your Miranda rights, you have the right to an attorney. If you can't afford an attorney, one will be provided to you. You've just heard those rights and you invoke your right to an attorney, but then two weeks later, the cops can re-approach you and start asking you the same questions again, then what does that communicate about your rights? Right. Like what does that communicate about the right that you just invoked? You just told me I have the right to an attorney and you told me it would be provided to me, but then you let me go and two weeks later you've shown up again. I have no idea why. I don't know if my right to an attorney is real. I thought it was, but apparently it isn't because you're approaching me again. Right. Like none of those things are explained to a person. And so that actual right to an attorney then becomes meaningless. You're not actually protecting the right to an attorney if somebody can invoke it, the attorney is not provided and the police just come back and do it again.

0:25:51.3 Peter: Yeah. And that's the tension that he's poking at.

0:25:53.6 Rhiannon: Right.

0:25:54.2 Peter: That when you invoke your right to an attorney in an interrogation, the cops have to stop questioning you. They don't really have to provide you with an attorney. They only need to provide you with an attorney if they want the interrogation to continue. So is it even a right to an attorney at that point? Right.

0:26:13.0 Rhiannon: Exactly.

0:26:13.8 Peter: The court has sort of turned it into something else, a right to make questioning stop by saying these words.

0:26:21.1 Rhiannon: For a certain amount of time.

0:26:22.0 Peter: But that's not what the Fifth Amendment says. The Fifth Amendment says you have a right to an attorney.

0:26:25.7 Rhiannon: Exactly.

0:26:26.5 Peter: So the cops get to under this rule dodge that by being like, "Alright, 14-days later and and we're hitting reset".

0:26:35.4 Rhiannon: Right. "We'll see if he says he wants the right to an attorney again, we'll see if he says he wants to remain silent or we'll see if he'll just fucking talk to us this time because we're showing up again". Right.

0:26:44.8 Peter: Yeah, "'Cause either we're wearing him down or maybe we just get him on a day when he's not as sharp", or whatever.

0:26:49.7 Rhiannon: Yeah.

0:26:50.6 Peter: Right. The sort of underlying principle is being abandoned here.

0:26:54.3 Rhiannon: Exactly. Steven says, "When police have not honored an earlier commitment to provide a detainee with a lawyer, the detainee likely will understand his expressed wishes to have been ignored and may well see further objection as futile and confession, true or not as the only way to end his interrogation". So a 14-day buffer doesn't protect you from anything. It doesn't protect you from the coercion of police interrogation that Miranda and Edwards were set up to be an obstacle to. And Stevens, but Peter, you hinted at this already, Stevens has a really fucking easy solution here, which is like, you know what else could make it extremely easy to re-approach and interview the suspect after they invoked their right to counsel? You could give him the counsel. You could give him the attorney that he asked for, that you are legally obligated, constitutionally obligated to provide to Him.

0:27:48.4 Peter: Okay. Joseph Stalin.

[laughter]

0:27:50.4 Rhiannon: Like, give him the attorney and then you can interrogate him. But of course, they don't wanna do that.

0:27:56.2 Peter: Fucking this is a... [laughter] It's wild that this is like a fringe view on the Supreme Court.

0:28:02.7 Rhiannon: Right, right.

0:28:03.8 Peter: But when someone invokes their right to an attorney, that like maybe you should just have to give them an attorney.

0:28:09.2 Rhiannon: Right. Yes. Steven's, there's another good quote. He says, "The detainee has been told that he may remain silent and speak only through a lawyer, and that if he cannot afford an attorney, one will be provided for him". He has asked for a lawyer, he does not have one. He is in custody and police are still questioning him. A 14-day break in custody does not change the fact that custodial interrogation is inherently compelling. It is unlikely to change the fact that a detainee considers himself unable to deal with the pressures of custodial interrogation without legal assistance. So Stevens is saying, if on the first interrogation attempt, the person said, "I don't want to talk to you unless I have an attorney present". That is not only invoking a constitutional Right. It's saying something about that person's capacity to answer questions and to deal with police coercion.

0:29:01.0 Rhiannon: Right. That person says, "I do not consider myself able on my own to deal with the pressure of custodial interrogation without my legal representative present with me. Right. And so, you have to take that invocation seriously. Just because you've waited 14-days, it does not mean that the person is now ready, is now completely able, is now willing, even if in a re-approach, because you've worn him down, he agrees to talk this time.

0:29:29.7 Peter: Right.

0:29:29.8 Rhiannon: Right. It's not a meaningful protection of these rights. It's not a meaningful exchange of dialogue on what it is we're supposed to be concerned about here constitutionally.

0:29:39.2 Peter: Right. I wanna point out a sort of tension in our system. If in court you try to represent yourself, you say, "Your honor, I don't want a lawyer. I'm gonna represent myself. I'm going pro se". Every lawyer knows what happens. The judge will be like, "Hey, dipshit. Listen up. This is a terrible idea. It is across the board a failure. This is like never worked out for anyone. You are fucking up right now. Are you sure you wanna do this?

0:30:08.3 Rhiannon: [laughter] Right.

0:30:08.8 Peter: But the person is like, "Yes". They're gonna be like, "I will reiterate".

[laughter]

0:30:14.3 Peter: This is a terrible idea for reasons A, B, C, D. And yet when you're in custody, any fucking flinch where you're like, "Alright, I'll talk". That's fine. That's fine. It's the same thing.

0:30:28.6 Rhiannon: Yeah.

0:30:28.7 Peter: It's a bad idea for all the same reasons.

0:30:31.3 Rhiannon: Exactly.

0:30:31.9 Peter: And yet there are no fucking protections here. There are no protections here. Why are there so many more protections in the courtroom? I can basically tell you why it's 'cause it's annoying for judges.

0:30:39.9 Rhiannon: Exactly. No, it's a judicial resources issue. Right.

0:30:43.0 Peter: Yeah.

0:30:43.3 Rhiannon: When defendants go pro se, meaning they represent themselves in their criminal cases, it's harder for judges, it's harder for prosecutors, they have to do a lot more work, they have to explain a lot more things. People who aren't attorneys representing themselves don't understand the process, the procedures. They don't understand how you're supposed to stand up and object to something. They don't understand how to access the evidence and go over it in their case. Right. So that's why judges don't like it. That's why judges strongly discourage people from representing themselves in their cases 'cause it's more work for them. Right.

0:31:14.3 Peter: Right. Just creates this sort of absurd dichotomy, where someone trying to represent themselves in a courtroom gets a ton of pushback from the system. But when you're being interrogated by the cops, the whole system wants you to operate on your own.

0:31:28.3 Rhiannon: Yes. Stevens also makes a really good point too, about how the court kinda launders this 14-day rule. The majority in Scalia's opinion, they say like "14-days is plenty of time to shake off the coercive effects of police interrogation". And they say, that's plenty of time to go home. You can talk to your family, you can consult with an attorney. And so, the next time police come and talk to you 14-days later, you will have already thought about this stuff and maybe you've decided by that time, "You know what? I'm good, I'm gonna talk to the police". Steven points out what is 1000% obviously wrong about this analysis, which is first of all, let's just take this case. Michael Shatzer, he was in prison. He didn't go home. [laughter] He didn't consult with anybody.

[laughter]

0:32:16.3 Peter: That's that's why Scalia said normal life. Back to his normal life.

0:32:19.4 Rhiannon: Exactly. Exactly.

0:32:20.6 Peter: 'Cause he couldn't say like home.

[laughter]

0:32:25.3 Rhiannon: Right. But then even for people who are not in prison, even for people after an interrogation, they invoke their right to counsel and then the police stop the interrogation and that person is allowed to go home. That person has no idea what has just happened in their case. They don't know that the police are gonna come back and talk to them. They don't know that the case isn't over. They don't know that they're supposed to consult with an attorney. Right.

0:32:51.3 Peter: Right. They're not gonna know that a fucking two-week clock is ticking.

0:32:54.8 Rhiannon: They have no idea. Especially if they've just been told that if you invoke your right to an attorney and you can't afford one, we'll provide one for you.

0:33:02.6 Peter: Yeah.

0:33:03.3 Rhiannon: So why on earth would they in 14-days.

0:33:06.9 Peter: Consult with an attorney?

0:33:07.7 Rhiannon: Exactly.

0:33:07.9 Peter: Right.

0:33:08.3 Rhiannon: So why on earth does 14-days is some special benchmark amount of time during which they would meaningfully involve themselves with being a suspect. In this criminal case, when the police asked them about something, they said, "I want an attorney". And the police said, "Okay, you can go home". This is not meaningful. [laughter]

0:33:28.7 Peter: Right, right.

0:33:30.1 Rhiannon: 14-days doesn't do anything. It's so bizarre.

0:33:33.5 Peter: [chuckle] One interesting thing that I think we've talked about once before is the way that the court talks about Miranda rights. The court specifically says, "Hey, this is not an actual constitutional right. This is a prophylactic rule meant to protect a constitutional right". By which they mean like the constitution doesn't say you have to read someone their rights. It doesn't say you have to stop interrogations when someone asks for an attorney. It just says you have a right to an attorney. We created these rules as a prophylactic measure to prevent violations of the right. Now that's true. That is an accurate summary of what the court has done with these rules. But I think that the court is implicitly making a category error here. They're claiming that this is somehow different from other constitutional rules because it's like preventative. That's what prophylactic means. Preventative.

0:34:25.6 Rhiannon: Yeah.

0:34:26.0 Peter: But that's not really correct. If you look at like free speech doctrines, the court has for many decades struck down laws that restrict speech on the grounds of vagueness. Meaning that if there's a law that impacts speech and it's too vague, it might deter people from speaking freely, which is a violation of the first amendment.

0:34:45.4 Rhiannon: Yeah.

0:34:46.8 Peter: Now the law might not infringe on speech directly, but it creates circumstances that are prone to violations of free speech rights. So the court forbids it as a prophylactic measure. Right?

0:35:03.3 Rhiannon: Yeah.

0:35:03.8 Peter: Same concept, but the court never expressly discusses that right as prophylactic. It's just not the terminology they use. This case has like three paragraphs talking about prophylaxis and how this is like a unique thing.

0:35:18.2 Rhiannon: Yeah.

0:35:18.7 Peter: Smart law nerds have written about this. There's an old law review piece written by David Strauss called The Ubiquity of Prophylactic Rules that talks about this very compellingly. This is a framework that you can apply to almost any constitutional right in different ways right.

0:35:33.9 Rhiannon: What is a constitution?

0:35:34.9 Peter: Right.

0:35:36.4 Rhiannon: What is a bill of rights, but a set of prophylactic rules?

0:35:40.6 Peter: Exactly. I mean, all it is is a set of principles, like free speech, religion.

0:35:46.2 Rhiannon: Sure.

0:35:47.8 Peter: Unreasonable searches and seizures. Right. These don't have very specific meanings. The court creates the meaning. That's the prophylaxis.

0:35:53.9 Rhiannon: Exactly.

0:35:54.8 Peter: That's how every right works to one degree or another. Outside of like a couple parts of the constitution, everything's pretty vague, right. Aside from the part that's like, yeah, two senators per state, and you have to be 35 to be president. It's all quite up for interpretation. And so judges create these frameworks. It's the same here. And I point this out because A, you can't draw a clear distinction between like prophylactic and non prophylactic rules, really. And so, that brings us to the question of B. Why is the court doing it? And I think that the reason they're doing it, the reason that they call Miranda prophylactic is to allow judges to put Miranda rights into a category of rights that they're allowed to fuck with.

0:36:39.4 Rhiannon: Yeah.

0:36:40.5 Peter: Right. They can carve out all of these exceptions to the rule and just be like, "Well, they're not really constitutional rights". They're just preventative rules.

0:36:48.6 Rhiannon: Yeah. There's parts of the majority and parts of Thomas's concurrence where they're talking about, "Well, we've said that the court can only create prophylactic rules in really limited circumstances", right? Like they're just setting up the idea of the suspicion of creating prophylactic rules in general, but it's only because it's in this category. It's only because it's Miranda. It's only because it's fifth and sixth amendment rights and they don't give a fuck about those.

0:37:14.8 Peter: Right. And what this has led to, is that now in recent years, we've seen like Sam Alito in particular hint that maybe the court should just abandon these prophylactic rules altogether, meaning no more Miranda rights, no more exclusionary rules, right? They have created a framework where they grant themselves permission to do away with these rights. They've been sort of laying the groundwork for years being like, "These aren't real constitutional rights". What's the logical conclusion of that? It brings you to a place where eventually you feel comfortable just tossing them out altogether.

0:37:46.1 Rhiannon: Yeah, the extremely biased skepticism towards prophylactic rules is one huge tell that the Supreme Court is really doing policy here when it's talking about Miranda, because they are coming up with seemingly procedural almost or like pseudo procedural reasons, why expansion of constitutional rights and the protection of constitutional rights, oh, that's actually not a judge's role, or that's actually not what judges should be doing. That's actually not what the federal judiciary is for. That's one thing. Another huge tell is the way the majority treats custodial interrogation, treats police interrogation in general. Assuming that all of it is happening in good faith and that as soon as a suspect invokes their right to remain silent or their right to an attorney, okay, the interrogation stops and then, "Okay, we can just wait 14-days. We'll try again". Everybody's on the up and up. We're all acting professionally and in service of the constitution, what have you, everything's good.

0:38:51.8 Rhiannon: Not until Stevens' concurrence, do you have any treatment of realistically what police interrogation, what being called in or arrested for police questioning, what that actually looks like, feels like, means in a person's life? I don't think Stevens even gets that deep into it or as realistic as it actually is, but you have some treatment, some recognition there. And all of this is to bring me back to the point that everybody should be internalizing by all of these cases that we talk about, by every time we criticize the police, we'll say again and again and again, you should never talk to the police. You should not talk to the police, because the court would have you believe in cases like this that they're operating in good faith and that the court is handing down bright line, clear rules that the police will follow and your constitutional right will be protected.

0:39:48.6 Rhiannon: Nowhere does it say, every single other thing, every single other practice the police are going to use against you in an interrogation to get you to talk. It is a wide array of things that would fucking shock you, right? The police can lie to you. The police can promise you a lie, can say, "If you talk to us about this, we're gonna help you out. If you do this, we can help you in this other situation". The police can lie and say, "We already have evidence against you. Your co-defendant, your friend, your wife has already told us what you did". And so, if you talk to us and tell us about what happened, then it will be helpful to you in the long run. All of these things that go into the coercion of being interrogated by the police, setting aside that you are detained where you are, that you're alone for hours, that you might be in a cell, et cetera, et cetera, et cetera, right? Obviously, people know that I was a public defender for a really long time. I saw people talk to the police all the time. The vast majority of cases, people talk to the police because you are coerced into talking to the police, because you are promised and convinced that it will help you to talk to the police. And it never, ever, ever does.

0:41:07.5 Rhiannon: I saw this TikTok. Actually, I know it's so stupid to like refer to a TikTok video, but I saw a TikTok and it was really good. It was a criminal defense attorney. I don't know what state she practices in, but she was telling this story to illustrate this very same point. Do not fucking talk to the police. So she has a client who the police had called him and asked him to come into the station to answer some questions. The client very smartly immediately hired an attorney or was able to hire an attorney, retained her legal representation. And so, she went with him to the appointment at the police station. She, in her capacity as his legal representative, said he is not answering questions. "We're not answering any questions at this time. If there's any information you would like to give us, thank you so much. And we're out of here". Right. Her client was telling her, "I'm not doing anything wrong". And he wasn't. He was completely innocent. The police had suspicions about a business that he ran with his partner. The business was completely on the up and up, completely legal. But police had suspicions about X, Y, Z.

0:42:08.8 Rhiannon: So the client himself was like, "Ma'am, lawyer, like I can talk to the police. I'll tell them what I'm doing. It's completely legal. I have all my licenses. I can show them the county registration I have for my business, et cetera, et cetera". She said, "No, you're not fucking talking to the police, it never ends well." Remember, the guy had a business partner. That business partner did talk to the police. That business partner, even though he had done nothing illegal, was arrested, had to pay to bail himself out, paid for an attorney. And now that there was an open case because he had talked to the police, now that there was an open case, it took like a year and a half. They went to trial. Finally, they dropped the case the day before trial because he had not done anything illegal. But it's a year and a half later, that case, that arrest is on your record in the state that she's in. She was describing how you only have one chance at expunction. So you're gonna use your one lifetime opportunity at expunging this one thing off of your record. God help you if you're arrested anytime in the future, 'cause that won't come off your record.

0:43:16.2 Rhiannon: So all of these things that flow from contact with the police even when you are innocent, right? You have done nothing wrong, but because you spoke to them, because you waived your Miranda rights, because you said, "Yeah, I'll talk to you. I haven't done fucking anything wrong. Of course, I'll talk to you. I'll argue my innocence. I'll prove to you my innocence". That's not what the police are trying to do. The police are looking to arrest people and charge people with crimes, period. And so, it was just such a compelling example, demonstration of how this works. And that contrast, right, where in this case, you see a Supreme Court acting as if there's nothing ever inherently wrong with police interrogation on its own, right? There's nothing inherently coercive about that. It's just about if we make a couple of little rules here and there and kind of navigate around the extreme cases. Put some limitations on the amount of time that they have to wait to ask you the questions again. And then, everything will be fine, right? But that completely misunderstands how police work in real life.

0:44:29.3 Peter: Yeah, and I think we're getting at something important here because I think we do these cases about cops. And I've seen some people on social media basically be like, "All right, well, these guys just hate cops. And all of their reasoning is just about hating cops. You can't build law around hating cops". And that's true. I don't think that you should be building rules around my opinion of cops. But I do think that you should avoid trusting in the good faith of cops.

0:44:57.7 Rhiannon: That's right.

0:45:00.9 Peter: And what I mean by that is that you can't craft rules that rely on cops acting in good faith for them to be functional. And that's true even if you think that only a small percentage of cops are bad apples, right? Even if you think that because you have been lobotomized. Because you suffered a traumatic brain injury at a very young formative age.

0:45:26.8 Rhiannon: Your mother didn't love you. Whatever the thing is that brought you to this. Yeah.

[laughter]

0:45:30.0 Peter: Whatever it is that makes you think that only 2% of cops are bad actors. Those 2% can do a lot of damage if they are not restrained. A big part of these rules should be restraining bad actors and creating confines in which they cannot cause harm, right? But what the court very frequently does is sort of imagine cops acting in good faith. And that is just not the real world. Whether you think that the bad cop population is 2% or 100%. It's not the world that we live in. They should be crafting rules that are designed to confine bad actors and limit the damage that they can do. And the court simply does not do that.

0:46:17.5 Rhiannon: Yeah. And so what you get out of this case is a dumb rule about 14-days and the police can go back. It's just another handing the police a lot more power when they shouldn't have it. But ultimately, what I would love for people to take away from this episode, from fucking every episode where we talk about the police, where we talk about Miranda, is that ultimately, vis-a-vis the police, in face of their coercion, in face of the bad faith modus operandi with which they are acting in every situation, the person that has the most power actually is you, the individual, because all you have to say is, I am exercising my right to remain silent. I am requesting an attorney. That's it. You say it over and over again. That's all you say. You don't say anything else. That is your protection against the police. And I wish that people could internalize that. And I understand how difficult it is to internalize it because I have seen 100s, if not 1000s of people talk to police.

0:47:25.4 Peter: And because most people operate on the basis in their day-to-day life that the people that they're talking to, are not bad actors.

0:47:33.2 Rhiannon: Right, and that they're not lying to them.

0:47:35.0 Peter: The guy asking you questions is not lying to your face right hoping to literally strip your freedom from you so that he can like improve his stats.

0:47:43.6 Rhiannon: Exactly.

0:47:44.3 Peter: That's what's happening when cops are talking to you 99.99% of the time. You're never gonna be in the situation where like, Your wife was murdered and you're a suspect, but you need to cooperate because there's no other hope of trying to find her body", or something. That's not gonna happen to you.

0:48:00.7 Rhiannon: Right. That's not.

0:48:00.8 Peter: That's movie shit. I think it's probably just worth ending every single fucking episode about Miranda rights with this. Don't talk to cops.

0:48:06.8 Rhiannon: Right, don't do it.

0:48:07.8 Peter: You only know one word, Lawyer.

0:48:09.8 Rhiannon: Yep.

[music]

0:48:15.5 Peter: All right, folks. Next week, Michael will be back. And then we're talking Nixon v. Fitzgerald. Case from 1982 about immunity for government officials. Perhaps you might imagine why we'll be talking about this case next week. Richard Nixon, Donald Trump.

0:48:36.8 Rhiannon: [laughter] Those two guys.

0:48:39.7 Peter: The first and last page in American history books. Oh, shit. Follow us on social media at 5-4 Pod. Subscribe to our Patreon, patreon.com/fivefourpod, all spelled out for access to premium and ad-free episodes, access to our Slack, occasional special event. See you next week.

0:49:05.1 Rhiannon: Bye.

0:49:07.0 Speaker 5: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. And our researcher is Jonathan DeBruin. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks at Chips NY. And our theme song is by Spatial Relations.

0:49:37.5 Peter: Do you see what he said?

0:49:38.8 Rhiannon: Yeah. [laughter] Tuna Tartare and...

0:49:39.7 Peter: Tuna Tartare and three Piña Coladas. I was like, that's your... Just fish and Piña Coladas.

[laughter]

0:49:47.2 Rhiannon: Raw fish, coconut milk and sugar and rum.

0:49:51.0 Peter: Raw fish and three piña coladas just swirling around.

0:49:55.6 Rhiannon: Yeah.