Posted by Jonathan Adler:
Is the Sixth Circuit Overulling *Miranda*?
http://volokh.com/archives/archive_2008_11_09-2008_11_15.shtml#1226678222
Yesterday, Judge Gilbert Merritt of the U.S. Court of Appeals for the
Sixth Circuit wrote quite a fiery dissent in [1]Davie v. Mitchell,
suggesting that the Court was effectively overruling Miranda v.
Arizona.
The majority in this case is reading the AEDPA statute unlawfully
to suspend the writ of habeas corpus in violation of the Suspension
Clause of the United States Constitution, Article I, § 9 (�The
Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may
require it.�). Here, as I shall explain below, the majority is
using the AEDPA statute as a license to overrule Miranda v. Arizona
and its lineal progeny developed by the Warren-Brennan Court four
decades ago to outlaw coerced confessions that abridge the Sixth
Amendment right to counsel and the Fifth Amendment right against
self-incrimination. The capital defendant invoked both his right to
silence and counsel to no avail before he was then enticed to
confess.
He concluded his opinion in similar tones:
I . . . dissent from the effort by my colleagues to bury Miranda
under a mountain of AEDPA rhetoric. Until the Supreme Court
overrules Miranda, we should follow it, no matter how much we
prefer to side with the police against the liberties created by the
Fifth and Sixth Amendments.
What could have Judge Merritt so upset? The decision by Judge John
Rogers, joined by Judge Guy Cole, to deny the habeas petition of
Roderick Davie, who was convicted to death for the murder of two
people and the attempted murder of a third. Specifically, Judge
Merritt believes Davie's confession was obtained in violation of his
Constitutional rights to remain silent and have the assistance of
counsel.
Here is how Judge Rogers describes the circumstances surrounding the
confession.
At approximately 8:30 a.m., Davie was arrested, read his Miranda
rights, and transported to the police station. At approximately
9:05 a.m. at the police station, Detective Hill read Davie his
Miranda rights with Lieutenant Carl Blevins present. Davie
initialed the rights form but refused to sign the waiver. At that
point, the officers made no attempt to interrogate Davie. At
approximately 9:59 a.m., Captain Downs and Blevins entered the
interrogation room and again advised Davie of his Miranda rights.
Davie initially made some comments, he ultimately declined to speak
further with the officers, and the interview ceased. At
approximately 12:15 p.m., authorities again questioned Davie. Davie
provided some information to police, including the fact that he had
his gun with him that morning, but he did not confess to the crime.
At 12:35 p.m., Davie indicated that he had nothing more to say and
the interview ceased. At approximately 2:00 p.m., Davie indicated
that he wanted to speak with Detective Vingle. After Vingle advised
him of his Miranda rights, Davie confessed. See 686 N.E.2d 245, 256
(Ohio 1997). At no time during the relevant events did Davie ask
for a lawyer.
Based upon these facts (discussed in far greater detail in Judge
Cole's concurrence), and the degree of deference federal courts are
required to show state courts under AEDPA, Judges Rogers and Cole
concluded Davie's confession was voluntary, particularly because he
initiated the discussion with the police that led to the confession.
Indeed, "even under a nondeferential analysis," Judge Rogers wrote,
"the police did not violate Davie's constitutional rights under
Miranda v. Arizona. Judge Merritt obviously disagreed, in part because
Davie never signed a waiver of his rights.
This case strikes me as something of a close call, and is largely
dependent upon how one characterizes the repeated interactions between
Davie and the police. If one thinks these interactions were relatively
benign and non-coercive, the majority is correct. If, on the other
hand, the repeated interactions with the police were more menacing --
Judge Merritt characterizes each interaction as a "confrontation" --
then Davie's confession may have been obtained in violation of
Miranda. Given the deferential standard of review under AEDPA,
however, this means the majority is probably correct as a matter of
law. And although I live in the Sixth Circut, I am not about to lose
sleep about this alleged erosion of Miranda.
References
1. http://www.ca6.uscourts.gov/opinions.pdf/08a0397p-06.pdf
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