Miranda Rule Still Robust

`New' Supreme Court has surprise in confession case

MIRANDA v. Arizona, the landmark 1966 confession case that applied the privilege against compelled self-incrimination to the police station, was the centerpiece of the Warren court's ``revolution in American criminal procedure'' - and the prime target of the critics of that revolution. Almost everyone expected the Burger court to read Miranda narrowly and to chip away at it when the opportunity arose. In the main, the Burger court did treat Miranda unkindly, with one notable exception - Edwards v. Arizona (1981).

Edwards reinvigorated Miranda in an important respect. It held that once a suspect invoked his right to counsel, the police not only had to cease all immediate interrogation, they could not reapproach the suspect and try again to get him to talk while waiting for the lawyer to arrive. Once a suspect asserted his right to counsel, he could not be subjected to further questioning ``until counsel has been made available to him,'' unless the suspect himself initiated further communication with the police.

Edwards marked the only clear-cut victory Miranda enjoyed in the 17-year era of the Burger court.

Now another ``new Supreme Court'' has assembled. In recent years, three Supreme Court justices have been appointed - Antonin Scalia, Anthony Kennedy, and David Souter (although Souter did not participate in last week's confession case). Moreover, now that Justice William Brennan has left the court, no member of the Miranda majority still sits. The departure of Justice Brennan signifies more than one less vote for Miranda. Brennan was widely regarded as one of the most influential justices in the court's history.

In light of these developments, defense lawyers and civil libertarians braced themselves for new attacks on Miranda and its offspring. Minnick v. Mississippi, the confession case decided last week, seemed the ideal vehicle for cutting down, or at least crimping, the Edwards rule.

When questioned one Saturday by FBI agents, Robert Minnick, a murder suspect, told the agents to ``come back Monday when I have a lawyer.'' The agents left at once. But, unlike the situation in Edwards and other cases, Minnick was provided a lawyer, with whom he consulted two or three times over the weekend. On Monday, a Mississippi deputy sheriff gave Minnick a fresh set of Miranda warnings and asked him whether he wanted to talk about the case. Minnick agreed to do so - and proceeded to confess his involvement in two murders (for which he was subsequently sentenced to death).

The prosecution maintained, and the state supreme court agreed, that counsel had been ``made available'' to Minnick within the meaning of Edwards, and that therefore his rights had been satisfied. Since consultation with a lawyer had taken place before the second interrogation, argued the prosecution, the psychological pressures generated by custody had been largely dissipated. Moreover, ran the argument, since Minnick's first request for counsel had been honored, he had reason to feel confident that if, at the second meeting with the police, he again invoked his right to counsel, it would be honored.

I have long been a defender of Miranda, but I thought the State of Mississippi made a plausible argument. Indeed, I fully expected it to prevail. For there was reason to believe that a majority of the present court was disenamored of Miranda and, at the very least, would decide close cases against it.

But a 6-2 majority, speaking through Justice Kennedy, did not find the prosecution's arguments convincing.

Two years ago, newly appointed Justice Kennedy had criticized the court for applying Edwards to a situation where the police questioned a suspect a second time about a crime unrelated to the subject of the initial interrogation. He maintained that restricting the police in such a case was inconsistent with ``the practical realities of suspects' rights and police investigations.'' On that occasion Kennedy had sounded a bit like Chief Justice Burger. But last week, he sounded a lot like Chief Justice Warren.

The merit of the Edwards rule, emphasized Justice Kennedy, ``lies in the clarity of its command and the certainty of its application.'' The rule proposed by the prosecution would leave unclear ``the sort of consultation'' that would satisfy Edwards. In context, the requirement that counsel be ``made available'' to the suspect who asserts his right to counsel refers to more than an opportunity to consult with a lawyer - it means that, unless the suspect changes his mind himself, the police ``may not reinitiate interrogation without counsel present,'' whether or not the suspect has actually consulted with counsel.

A remarkable event has occurred. A court that was expected to begin (or resume) the dismantling of Miranda has read it more generously than at any time since the days of the Warren court. Moreover, the majority opinion was written by someone who was thought to be a strong ally of Chief Justice Rehnquist in criminal-procedure matters.

The new Supreme Court, one that some thought might even overrule Miranda, has served notice that it is prepared to live with that much-maligned case - indeed, that it may even have grown to like it. Last October, when the court began its new term, law-enforcement officials were rubbing their hands in glee. Now, as they study the majority opinion in the Minnick case, they must be rubbing their eyes in disbelief.

But the police have one consoling thought: As strange as it may strike some, most suspects, including those arrested for criminal homicide, never ask for a lawyer.

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