By Susan A. Bandes, Distinguished Research Professor at DePaul University College of Law and Author of The Passions of Law
Miranda v. Arizona and the cases implementing it tend to favor clear and unequivocal rules for the guidance of police, prosecutors, courts and suspects. In Edwards v. Arizona, the Court adopted a bright line rule mandating that once a custodial suspect has invoked his right to counsel under Miranda, he cannot be questioned again "until counsel has been made available to him, unless the suspect himself initiates further communication, exchanges or conversation with the police." While some of Miranda's bright line rules have been diluted or blurred, the Edwards rule has become increasingly rigid. In Arizona v. Roberson the Court held that once a suspect had invoked his right to counsel, he could not be questioned about any crime. In Minnick v. Mississippi, it held that the prohibition remained in force even after the suspect had been provided counsel, unless that counsel was present at questioning.
In yesterday's argument in Maryland v. Shatzer the Court pushed the advocates to articulate a bright line rule that would limit Edwards without sacrificing its clarity. It considered limits based on passage of time, different crime, break in custody, and the distinction between pre-conviction and post-conviction status. On one point, the Court was in accord: some limits need to be set. It cannot be that "a defendant who invokes [his Fifth Amendment right to counsel] anywhere at any time is forever immune from being questioned by the police" about any crime.
Justice Alito posed the extreme hypothetical: a suspect is questioned about joyriding in Maryland in 1999. He invokes his right to counsel under Miranda and is then released from custody. Ten years later he is taken into custody and questioned about a murder in Montana. Is the 2009 questioning barred by Edwards? Shatzer's counsel, public defender Celia Davis, maintained that Edwards would be violated in this situation. If so, Edwards' days are numbered.
In August 2003, a detective questioned Michael Blain Shatzer, Sr. regarding his alleged sexual abuse of his three-year-old son. Shatzer invoked his right to counsel, and the investigation was subsequently closed. In February 2006, the case was reopened and a different detective questioned Shatzer, not knowing that he had previously invoked his right to counsel. Shatzer at no time requested an attorney and ultimately confessed to the crime. Shatzer was in prison on an unrelated offense during the entire period between the interrogations.