Legal Theatre

In 1967, the United States Supreme Court, by a margin of five to four, mandated the crazy, watershed, big deal, landmark, no-brainer acknowledgment of basic rights in Miranda v. Arizona.

At its core, ‘Miranda’ requires a law enforcement officer to remind any suspect in custody who’s about to be questioned that they are in America and, as such, they have some ambiguous rights. Once that unobtrusive bit of oral housekeeping is complete, the police are allowed to use just about any interrogation tactic they like in order to get the suspect to spill. Bad cop/good cop, bad cop/badder cop, sneezy cop/grumpy cop, promise cop/lying cop, pressure cop/guilt cop: all are fine. They can say stuff like “if you just tell us what you know, we’ll go easy on you” (even when they have no intention or authority to do the same) or even “you know we already have your DNA and two eyewitnesses and your partner already ratted you out (even when they got nuthin’).

In my experience -- defending over a thousand criminal cases -- maybe five per cent of suspects successfully invoked their Miranda rights; the rest typically fucked themselves by flapping their lips. Which is how many of them became my clients in the first place.

But why? Why, after Miranda, would a suspect ever talk to the police having been informed of their rights?

Because Miranda – and let me know if I’m getting too technical for ya -- is bullshit. All Miranda does is act as a talismanic ritual that assures the rest of the citizenry that the system is “fair”; that America is awesome and that we don’t (completely) take advantage of idiots and morons who don’t realize they have the right to not help the police in their own prosecution. Miranda doesn’t foresee a discourse between suspect and cop, it doesn’t provide for answers to questions, it doesn’t even require a waiver of the rights. The cop merely has to read it and ask the person if they understand what was just read. When the person says yes, it’s questions ahoy. If the person says no, the cop typically re-reads it and the interrogation begins.

There are two threads to the Miranda warnings: Silence and Representation.

The right to remain silent is the easier one. Another way to look at it is the right to not be tortured. There is no law in the country that punishes a person in custody for keeping her mouth shut when questioned by the cops, whether or not a “warning” is given. Further, once invoked, the right only keeps the statements out of court proceedings and prevents comment on the silence as an indicator of guilt. That’s it.

Miranda, in and of itself, rarely prevents prosecutions where there is, you know, evidence that proves the crime beyond a reasonable doubt. Cases aren’t thrown out if Miranda wasn’t read unless the entire case hinges on a statement given without the assurance that the citizen accused knew they had rights before they blabbed. Fun fact: Ernesto Miranda – the Miranda from the decision – had his case overturned and his confession thrown out but he didn’t go free, he got re-tried. The only difference in the second trial was the absence of his own words, and, you guessed it, he was still convicted and sent to prison. In 1976, after few years of freedom upon parole, Ernesto was stabbed to death in a bar in Kingman. The end.

You’d be hard pressed to find an adult who couldn’t recite their Miranda rights – at least the first seven words. Every law movie, every frickin’ episode of every frickin’ subset of Law and Order has it. A lot of toddlers know it! The Supreme Court did very little when requiring the police to just make double-sure that the idiot suspect (you know, the one stupid enough to get caught), was aware that he didn’t have to talk. Then, when he does talk to the police, we don’t have to worry whether what comes next is the product of an informed decision. And then they talk, and talk and talk. Thus, Miranda doesn’t do a whole lot for the sap who thinks they’re clever enough to talk their way out of an arrest, but it does make all the rest of us feel great that we tried to tell them not to do it, but they did it anyway. See, America is awesome!

The trickier part of the Miranda “warning” is the bit about having the right to legal representation and the reminder that it is free. The Miranda case didn’t create this right to counsel, it merely required that it be recited – which is very different from being explained. If my clients have any hesitation about speaking once they are in custody, it’s when they wonder aloud if they maybe, possibly should have their attorney present. They’ll say stuff like “should I have my attorney here?” or “would it be better if I did.” Sometimes they’ll even go as far as saying “I think I want an attorney here.” So that’s it, they lawyered up, right? Investigation over?

Well, no. The Supreme Court says that the exercise of the right to representation must be unequivocal. Many courts virtually require you to say “Stop questioning me, I want a lawyer now.” But even then, you never get an attorney right there. You’ll likely be taken into custody at that point and maybe required to wait for days to see your free attorney. In the meanwhile, you’re allowed to change your tune and talk if you want.

Of the two parts of Miranda, the one the police (and their advocates in the legislature) really hate is the second one: the idea of “lawyering up.” Because the first advice most lawyers will give to their clients is to shut the fuck up.

Why? Is it that criminal defense lawyers such as myself want to keep the police from the truth? That we’ll do whatever we can to free guilty people because if there’s one thing criminal defense lawyers love it’s violent people randomly killing people on the streets?

Yes.

Obviously.

Who doesn’t want guilty people free to commit more crimes?

But sometimes my goal isn’t to “invent” a clever defense that will free my client to kill again. Sometimes I have other goals for them.

Sometimes, for example, I want to make sure that if my client does talk, he’s not going to ramble on and feed the cops utter lies. An instinct for a cornered suspect is to try to talk their way out of the situation and that usually means giving the police a full brimming crock of shit, even if they are completely (or mostly) not guilty. Oftentimes, they overthink and in the heat of the interrogation they’ll change a fact or two to possibly make themselves look better or make themselves look less guilty or tell the police what they think the police want to hear.

Believe it or not – glory be – innocent people in the (pardon the expression) pressure cooker of an interrogation, may fudge some stuff. And if its admissible in court, they just handed the prosecutor two of the most overused summations in the judicial grab bag: (1) Why would the defendant lie if he was truly not guilty? and (2) If he’s willing to lie about the little stuff, how can you trust him about the big stuff? So, um, if you want to make sure that the truth is given when the person talks, its probably good form to get the fella a lawyer.

Second, the overzealous cop (or prosecutor) wants the suspects statements for free despite their very high value. My goal: you want the statement? You can have it, but instead of giving my client the death penalty because he phrased his motives inarticulately, let’s take that off the table. Fair is fair. The lawyer is just brokering the terms of a contract. Again, the cop is legally allowed to lie to the suspect with promises of leniency and the like – my goal is to make sure any promises are enforced.

Finally, I’m merely a spokesmodel for my client. Maybe a better word is a translator. Suspects get asked questions and answer in ways that could be full of slang, or inarticulate, non-responsive gibberish. Moreover, they get asked questions specifically designed to put them in a legal box under the umbrella of things like conspirator, or aider and abettor, where the question asker does not define these concepts. As a lawyer, we make sure the client’s words if they chose to give them are clear, concise and responsive. We also clue our clients in as to what’s going on – so if they decide to hang themselves with their own words, they do such out of their own desire and not trickery or ignorance.

Which bring it all back to the current (lame) debate over whether the alleged Boston Bomber should be read his Miranda rights.

The short answer, of course, is who gives a damn? If he wants to talk without a lawyer, he’s going to. Surely, by the time the Miranda warning is read, he’ll have already decided how he’s going to handle himself. Miranda doesn’t require a damn thing – it’s just a tepid caution sign: no more important than one on a pack of cigarettes or the giant reminder that tells a bunch of kids in bathing suits in the summer not to swim after eating. I can’t imagine this guy or anyone jutting up after the Miranda warning is read saying “Hold the phone, you mean I don’t have to talk to you? Well, get the fuck out of my hospital room, I’m going home.”

An actually effective Miranda warning would start with a fanfare. A formalized “here ye, here ye…” Maybe a scroll. It would be explicit. Have terms like “If you talk to me, you will likely say the wrong thing and I will fuck you up, little man. I will very likely take your words and explain to a jury or judge that because of those words, you deserve to die. I have the right to lie to you. I may make you a promise I have no intention of keeping. You may think you can tell me the right thing, but I will still arrest you anyway and let the court sort it out. You have the right to a lawyer, but who knows if it will be a good lawyer, but really, any lawyer is better than no lawyer before you spill your guts because only a lawyer can really get a deal for you and you always get a better deal before you talk than after. Ok, do you want to shut up and get a lawyer now? (Cop pantomimes yes while waiting for a response).”

But the Boston Bombing suspect is not getting that. He’s getting the basics. The real basics.

In the Miranda case, the four dissenters (especially Justice Byron “Whizzer” White) were freaked out that if a warning was required, no suspect would ever talk to the police and guilty killers and rapists would go free. Yes, Whizzer, except for almost none of them.

I know there’s a lot of hand wringing about the alleged Boston Bomber; how we have a million questions – how we need to know the answers, how there might be others involved or more bombs. Well, sure. Got that. Easy fix… ask him the damn questions, but don’t worry about using it against him to kill him. You want answers and you want him to help you make the case to execute him? Well, as the Church Lady said, “isn’t that special?” (Don’t give me shit on a Church Lady reference – there is a whole religious underpinning here).

On the other hand, just Mirandize the (alleged) asshole and affirm the integrity of our innocent until proven guilty, we-got-rights-yeah-we-do, we-got-rights-how-about-you society. Make sure what he says is being given voluntarily and in line with that whole virtuous America thing we got going. He’s going to talk. He’s going to cooperate. And if he doesn’t – you will still prosecute and execute him (under Federal law).

When I hear calls to suspend his right to even hear the Miranda warning, I can’t help translating that into “let’s just torture him.” If you’re honest, that’s what it comes down to: even though he’s a U.S. citizen, do we want to let the government torture information out of him? The perceived inconvenience over Miranda warnings are a pebble in the beach sandal compared to that tidal wave of water about to crash over the whole system on the means the government is willing to use to get info out of suspects like this. The practical importance of Miranda in 2013 is a canard, but calls for its suspension bespeak a shitstorm of injustice much worse than even fear itself.