VOL. 9 NO. 2 THE MAGAZINE OF THE UNIVERSITY OF UTAH FALL 1999

WHAT'S WRONG WITH VICTIMS' RIGHTS?

by Bob Donohoe, illustration by Randall Royter

Seven years is a long time. A long time to plot, plan, fine-tune. Seven years, it turns out, is enough time to draft and re-draft, file and file again, time enough for one rebuff after another, each court, in turn, considering an argument, then saying, "No, not here, not now." Seven years is time enough for one failure after another. Seven years is also, it turns out, time enough to prepare for five minutes that just might change the course of American criminal justice.

U law professor Paul Cassell wants to end the reign of Miranda v. Arizona, one of the most famous rulings of the Supreme Court of the last half century. Question is, is he out to slay a dragon, or tilting at a windmill?

"The Miranda ruling was the most devastating thing that the Warren Court did to the criminal justice system," he asserts.

"Out in the real world, [Miranda has] had very little effect," counters longtime criminal defense attorney John O'Connell, Sr., a 1965 U law school graduate and onetime debate foe of Cassell.

Right or wrong, Cassell single-mindedly pursues the 1966 Supreme Court ruling he sees as a triumph of criminals' rights over the rights of crime victims.

That pursuit brought Cassell before the United States Fourth Circuit Court of Appeals last year, where he argued for his client, the Washington Legal Foundation, a conservative public interest group based in Washington, D.C. Cassell, contrary to the positions of both the defendant and the federal government, sought to convince the court that the defendant's confession to a crime should not be thrown out of court because of what Cassell calls a technicality.

"I think it went pretty well," Cassell says now of the five minutes the court gave him to argue. "I've been waiting seven years to give this argument."

In 1992, Cassell left his job as a federal prosecutor and signed on as a law professor at the University of Utah College of Law, in part because of his desire to have more time to pursue victims' rights issues. "I tell my classes," he offers, well-rehearsed, "prosecutors deal with one criminal at a time. I changed jobs to look at reform from a broader perspective. I went from the retail level to the wholesale level."

Seven years, then, is time enough to come up with catchy phrases that come in handy when trying to get the word out, retail, wholesale, any sale: Miranda has got to go. In Miranda, the court ruled that a criminal suspect, once in police custody, must be warned prior to questioning that any statements he makes can be used against him at trial, that he has the rights to remain silent, to an attorney, and to have an attorney appointed at state expense. Failure to make such a warning, or to suspend questioning once the defendant invokes those rights, is grounds for excluding from evidence any statements made by the defendant, including a confession.

Seven years has given Cassell the time to write numerous law review articles, testify before Congress, and hone his legal argument. He has created a one-man, press-savvy juggernaut that includes information at the ready—copies and summaries of his legal arguments, newspaper articles about his crusade, names of quoteworthy opponents, and his own recently opened Web site.

Cassell works doggedly at getting the word out because he wants to convince us all of the ills wrought by Miranda. Miranda, he says, has "handcuffed the cops," taking from them their most important tool: the voluntary confession of guilt. A former member of the Reagan-era Justice Department, former federal prosecutor, former law clerk to conservative justices Warren Burger and Antonin Scalia, Cassell has embarked on a crusade to end what he sees as a Miranda-created bumper crop of bad guys gone free because of "technicalities."

Others, of course, see more than mere "technicality" at the heart of Miranda. "It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people," late Supreme Court Justice Thurgood Marshall wrote in a 1986 dissenting opinion.

Ernest Miranda was not very nice. In March 1963, the 23-year-old was picked up by Phoenix police as a suspect in the case of an 18-year-old girl who 11 days earlier had been forced into an automobile, driven into the desert, and raped. In short order, and without benefit of the procedural warnings that would soon carry his name, Ernest Miranda confessed. After two hours of interrogation he admitted to the crime and then wrote out his confession at the urging of police. Miranda was tried, convicted, and sentenced to 20 years in prison. The Supreme Court, in a controversial 5-4 decision, overturned that conviction (although the case eventually was retried, and Miranda was again convicted and sentenced to 20 years in prison).

The Supreme Court explained the new warning it required as perhaps the only way to protect those members of society who could not protect themselves. The decision relied on the Fifth Amendment protection against self-incrimination and the Sixth Amendment guarantee to the assistance of counsel. It applied only to questioning by police after a suspect was taken into custody.

"The warning of a right to counsel would be hollow," Chief Justice Earl Warren explained in his majority opinion, "if not couched in terms that would convey to the indigent—the person most often subjected to interrogation—the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it." The Court went on to say that such rights could be waived, but only if done "knowingly and intelligently." Otherwise, statements by criminal defendants could not be used against them at trial.

Dissenting, Justice Byron White warned, "[I]n some unknown number of cases the Court's rule will return a killer, a rapist or other criminal to the streets...to repeat his crime whenever it pleases him."

That's exactly what has happened, Cassell argues. Meanwhile, he adds, victims seem to take a back seat to those accused. "We've got to consider victims of crime. Getting rid of Miranda is the best way to help victims of crime. My goal is not to take away defendants' rights, but to add to victims' rights."

That's not always easy, Justice Marshall noted. "[H]onoring the presumption of innocence is often difficult; sometimes we must pay substantial social costs as a result of our commitment to the values we espouse. But at the end of the day the presumption of innocence protects the innocent; the shortcuts we take with those whom we believe to be guilty injure only those wrongfully accused, and ultimately, ourselves."

But Miranda costs too much, says Cassell. "We can do better than Miranda. Haven't we learned anything in the last 30 years?"

Well, yes, says Lionel Frankel, a U law professor who sits across the fence on the Miranda debate. Miranda is "33 years old [because] it works pretty well." And though he believes overturning Miranda "would be very bad," Frankel is quick to add, "[Cassell] is doing very creative, very valuable work, and he's having a very great effect."

That great effect led to the recent ruling by a three-judge panel of the Fourth Circuit Court of Appeals, which has jurisdiction over federal courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia. The panel agreed with Cassell, ruling that a little-known and seldom-applied act of Congress effectively overruled Miranda. The entire Fourth Circuit Court affirmed that ruling on April 1 in an 8-5 vote. The court agreed that a portion of the 1968 Omnibus Control and Safe Streets Act, passed in response to Miranda, makes the Miranda warning unnecessary so long as a suspect's confession is voluntary.

The decision has drawn national attention, in part because of the notoriety of Miranda, and in part because of the notoriety of the Fourth Circuit, which the New York Times recently called "the boldest conservative court in the nation." Conservative or not, the court is rarely overruled by the Supreme Court, as noted in the Times. And the Supreme Court is exactly where Cassell hopes the case, called United States v. Dickerson, winds up next.

"The [Supreme] Court is concerned about technical violations [of the Constitution by police], and looks for ways to trim back" the impact of procedural rulings like Miranda, he says. Cassell hopes the court is concerned enough to let him argue the case. Cassell's client isn't a party to the Dickerson case, but the Washington Legal Foundation, as a friend of the court, and Cassell as a representative for an alternative point of view, should get a say before the court. Neither the defendant nor the Justice Department supports Cassell's argument.

Some might wonder, why bother with Miranda? The ruling has generally come to be accepted by prosecutors and police, and the Supreme Court has consistently upheld Miranda. John Justice, of the National District Attorneys Association, recently told USA Today, "Miranda is not the bugaboo everyone thought it would be." Even police have grown to grudgingly accept Miranda. "It's ingrained in everything we do," Gene Cromartie of the International Association of Chiefs of Police told USA Today. Overturning Miranda, he adds, would "open a Pandora's box. Why take a chance? It's not a big effort to read someone their rights."

Why bother, indeed, says Salt Lake criminal defense attorney O'Connell. "It doesn't seem to make much difference whether you tell suspects about the right to remain silent or not," says O'Connell, who was director of the Salt Lake Legal Defender Association from 1968 to 1970. He also debated Cassell regarding Miranda in 1996. "I was at the public defender's office at the time [of the ruling]," he recalls. "I remember thinking, 'Oh, my gosh, what a big decision.' But nothing much really happened."

Cassell disagrees. "We've created artificial rights that don't serve legitimate needs of criminal defendants," he argues. To support his argument, he points to his own "exhaustive" study of crime clearance rates after Miranda: it shows, he says, a 15 percent drop in the rate of cases that were solved by police beginning two years after Miranda. "And it's stayed there ever since. Miranda was the causal factor."

Frankel's not so sure. "While I regard his figures as interesting, there well could be other factors that explain the drop in case closures after Miranda."

"A lot of changes were going on in America in 1966; those were really turbulent times," says O'Connell. "The Rolling Stones came to America. Blame it on the Stones." He's joking, but his point is serious: pointing the finger at Miranda is simplistic. "The civil rights movement and the war on poverty were in full swing, police departments were being reorganized, including the way statistics were gathered, drugs were prevalent, the Stones came, more crimes were committed by strangers [so far as their victims were concerned]."

In the meantime, Miranda remains relevant, says Frankel. "Miranda won't make all that much difference. But a policeman has to follow the formula and read a suspect his rights, and that reminds the officer that the suspect has rights. I don't think in 1999 you should think it's a good idea not to have officers reminding themselves that a suspect still has rights.

"One thing about Miranda: everybody knows what's on the cards, and I don't think the cards should be torn up."

Neither does Cassell. "Police should still use the Miranda warning," he says, even if it is no longer required. That's because the reading of a Miranda warning, under the Fourth Circuit ruling, remains among the factors a court can look to in determining whether a confession is voluntary. If the Supreme Court agrees with the Fourth Circuit and applies the 1968 crime act cited by Cassell, voluntariness would likely become the standard used by courts to determine whether a confession can be part of the case against a criminal defendant.

Eventually, Cassell says, Miranda should be replaced with videotaped interrogations. Surprisingly, Frankel and O'Connell agree videotaping might be a good way to go. Frankel also sees a benefit to Cassell's attack on Miranda. "In the long run, making us reconsider Miranda is a good thing. We'll see it may or may not be working, and that there may be a cost."

O'Connell remains a bemused skeptic. "To [Cassell's] credit, or infamy, he's pushing this thing through. I thought nobody cared. He's got Scalia and [Justice Clarence] Thomas. Let's see if he can get anybody else."

– Bob Donohoe JD'93 is a member of the Utah Association of Criminal Defense Lawyers.

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