Bright Line Fever: The Argument in Maryland v. Shatzer

October 6, 2009
Guest Post

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.

Attorney General Douglas Gansler for the State of Maryland argued for a new bright line rule, consistent with the rule adopted by several states and federal circuits: a break in custody from custodial interrogation should be enough to end the Edwards irrebuttable presumption against reinterrogation. Shatzer's move from the interrogation room back to the general prison population would count as such a break. Gansler argued that for an inmate, returning to the general population is like returning home. Justice Ruth Bader Ginsburg objected that those who return home can contact lawyers, while those who return to prison have no such access. This exchange led to Gansler's noteworthy assertion that despite the language of the Miranda warnings, Miranda does not provide a right to counsel. It provides only that if a suspect invokes his right to counsel, he will no longer be questioned in the absence of counsel.

The proper focus of the Miranda rules is counteracting the coercion inherent in custodial interrogation. Edwards assumes that when a suspect invokes his Fifth Amendment right to counsel, he has expressed his inability to withstand the coercive nature of custodial interrogation on his own. Shatzer invoked his right to counsel. He was not provided with counsel, but he was removed from the coercive situation. The question is whether his return to custodial interrogation 31 months later is a continuation of that coercive environment. Perhaps, as Justice Ginsburg suggested, a suspect in this situation would assume that if he invokes the right to counsel again, the interrogation will again cease. Or perhaps, as Justice Sonia Sotomayor implied, he would have no reason to believe he will ever get the lawyer he's requested. Chief Justice John Roberts began the questioning by positing the extreme version of this catch and release cycle: the suspect invokes Miranda, the police let him go, they bring him in, he invokes Miranda, they let him go, they bring him in, and so forth until he breaks down and talks.

The real stumbling block for the Court may be its desire for a bright line rule. As the Court recognized in last term's decision in Arizona v. Gant, predictability and clarity are important values, especially when crafting conduct rules for law enforcement, but sometimes they are outweighed by other values. The State and the United States resisted the pleas of several justices to articulate a bright line rule based purely on the passage of time (though they ultimately relented and suggested possible time limits.) Passage of time may in some instances ease a coercive atmosphere, but if the suspect remains in the same coercive environment, passage of time can actually exacerbate its coercive nature. Change in environment is therefore relevant, and so might be the change from pretrial to post-conviction status. In short, the Court may be headed toward a Michigan v. Mosley-type rule that requires weighing several factors. Miranda's animating principles might be better served by a more flexible test for determining whether reinterrogation amounts to the kind of badgering that leads to coerced self-incrimination.