Tricky Argument on Right to Counsel |Kicks Off Supreme Court’s 2010 Term

     WASHINGTON (CN) – A tricky argument over the reach of the Sixth Amendment right to counsel started out the Supreme Court’s Fall agenda on Monday in a challenge to a lower court court decision suppressing a failed polygraph test in the case of a man accused of abusing his son.

     Michael Blaine Shatzer was initially questioned while in prison about charges that he had ordered his three-year-old son to give him oral sex in 2003. Shatzer asked for a lawyer.
     The detective stopped questioning and told Shatzer to contact him when he had a lawyer. Shatzer did not get a lawyer and did not contact the detective.
     Over two and a half years later, another detective who reopened the sex investigation questioned Shatzer again about the past offense. This time, Shatzer agreed to waive his Miranda rights and agreed to take a polygraph test that he failed.
     The entire time, Shatzer was serving time in prison for another sexual offense.
     Shatzer later motioned to suppress the incriminating statements and the failed polygraph test obtained during the second interrogation, but the request was denied in district court and the evidence was used in Shatzer’s ultimate conviction for sexual child abuse.     But the Maryland Court of Appeals reversed the evidentiary ruling and said the polygraph results and the incriminating statements should not have been admitted.
     The question revolved around whether the rule of Edwards v. Arizona decision, which prevents continued questioning after a request for counsel, was violated by the policeman interrogating Shatzer who had initially invoked the right to counsel while imprisoned on a separate charge.
     Maryland Attorney General Douglas Gansler, the petitioner, argued that the statements and the failed polygraph test had been obtained legally.
     Respondent Celia Davis, an assistant public defender, maintained that the rule laid out in Edwards had been violated.
     In Edwards, the Court declared that in cases where the suspect has been in continuous custody, “if a suspect requests counsel at any time during the intervention, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation.”
     The rule laid down by Edwards was intended to keep police from badgering the suspect into accusing himself.
     Any information obtained in violation of the rule cannot be used in court.
     Gansler, who argued that the incriminating statements should be admitted in the court, claimed that releasing Shatzer “back to his daily routine,” which happened to be a prison life, counted as a release from custody.
     He added that two years and seven months of having the case closed is long enough to show police weren’t badgering Shatzer.
     But Justice Anthony Kennedy had difficulty buying the argument that Shatzer was released from custody when he went back to his prison cell. “The possibilities for coercion or pressure are very substantial in the prison. The warden comes in and says ‘Oh, your cell doesn’t have a window.’ I think that’s a very difficult rule that you are proposing.”
     Many of the justices appeared concerned about why Shatzer was not provided with a lawyer.
     Justice John Paul Stevens in particular was focused on the issue. He asked whether the police, when reading the Miranda rights, say a lawyer will be provided.
     Gansler replied that they do, but explained that the police are not obligated to actually get a lawyer once the suspect decides to exercise his Sixth Amendment right. They simply need to stop the interrogation until a lawyer can attend.
     “So the Miranda warning is a little misleading,” Stevens said.
     Justice Sonia Sotomayor focused on why the police approached Shatzer before he got a lawyer. “We tell the police they have to stop.” she said. “So presumably they wouldn’t re-engage until the lawyer is present.”
     Gansler said they only re-engaged when Shatzer decided the second time to waive his right to a lawyer.
“I thought that once he’s invoked his right to counsel, you can’t approach him,” Justice Antonin Scalia remarked.
     The question arose over how much time had to pass after the release from custody before the questioner could reasonable believe that the suspect was looking for a lawyer or that he was represented by a lawyer.
     Justice Stephen Breyer and Justice Ruth Bader Ginsburg proposed putting a time limit on what some called “immunity.”
Justice Samuel Alito asked Davis, who represented Shatzer, what she thought would be an appropriate time period before the police can approach suspects after they demand a lawyer.
     “Oh, anything over two years and seven months,” she said to laughter. But she ultimately declared that the protection should never expire.
     Alito was openly skeptical. He proposed a scenario where a man is taken into custody in Maryland in 1999, questioned after invoking his right to counsel, and released. Ten years later, he is questioned for murder in Montana.
     “Now, does the Edwards rule apply to the second interrogation?” he asked.
     Davis said it would.
     “And you don’t think that’s a ridiculous application of the rule?” Alito asked, noting how difficult it would be to determine if the suspect had ever invoked his right to counsel without getting a lawyer.
     Chief Justice John Roberts continued the questioning. “And you are saying he cannot even be approached to see if he would waive his rights ten years later because he invoked the right?” he asked.
     Davis said that if a suspect invokes his right to counsel and is approached by police before he gets a lawyer, “the second approach means an attempt to persuade the person to change their mind about having counsel.”
     She said the police cannot approach the suspect after he exercises his right to counsel until either the suspect approaches them or gets a lawyer.
     Roberts noted that the man in Alito’s scenario was “obviously” released from custody. “You think the rule applies whether they are in captivity or not,” he said.
     “None of the cases where we have applied Edwards has dealt with a situation where a prisoner has been released from custody,” Sotomayor said.
     Davis replied that it doesn’t matter because both interrogations happened while Shatzer was in custody.
     Scalia appeared entirely unsympathetic with Shatzer’s case. “Isn’t he told, at the very outset of the Miranda warning, that he doesn’t have to talk if he doesn’t want to talk?” he asked. “I don’t know why that isn’t enough.”
     Scalia said that saying he won’t speak without an attorney and asking for an attorney are two separate scenarios. “He doesn’t demand an attorney. He says, I don’t want to talk without an attorney,” Scalia said.
     Davis argued that it was clear Shatzer was asking for one.
     The event marked Justice Sonia Sotomayor’s second appearance as a Supreme Court justice, with many eager to see her performance on the bench.
     While some justices asked tougher questions of one side over the other, Sotomayor was critical of both arguments, and showed no hint of the way she might be leaning.

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