- The Washington Times - Thursday, April 20, 2000

Solicitor general sides with bank robber before high court

Supreme Court justices seemed unusually undecided yesterday as they debated whether arrested suspects have a constitutional right to hear the well-known Miranda warning outlining their right against self-incrimination.

“What is at stake in this case is whether guilty criminals will continue to go free due to a police mistake,” University of Utah law professor Paul Cassell said outside the court. He assured justices during the argument that police could not revert to the days when confessions were beaten out of suspects.

“What is the bright line legal standard that will allow us to determine whether [evidence] is admissible or not admissible?” asked U.S. Solicitor General Seth P. Waxman, the government’s top courtroom lawyer, who was in the odd position of siding with a confessed bank robber seeking to avoid prison.

Fairfax, Va., lawyer James Hundley, who represents Charles Dickerson of Takoma Park, and Mr. Waxman want the Supreme Court to overturn a federal appeals decision upholding a little-used 1968 law. The law, called Section 3501, requires that federal courts accept truly voluntary confessions even if the Miranda warning was not read.

The justices appointed Mr. Cassell, a longtime advocate for Section 3501, to defend it and the 4th Circuit ruling when the Clinton administration refused to do so. Such refusals are extremely rare, particularly when the Justice Department supports an outcome that would free a man who implicated himself in seven bank robberies in Maryland and Virginia.

“Section 3501 can be upheld by this court only if this court is prepared to overrule Miranda,” Mr. Waxman said.

“[Any substitute] has to be at least as effective as words I think two billion people in the world know,” said Justice Stephen G. Breyer, who recited the mantra police and television shows repeat so often that 90 percent of suspects confess anyway.

“You have a right to remain silent. Whatever you say may be used as evidence against you. You have the right to have an attorney present during questioning. The court will provide an attorney if you are unable to afford one,” Justice Breyer said, calling the words a hallmark of American justice.

Mr. Hundley said the words of Miranda easily met the test the Warren court laid down in 1966 in the Ernesto Miranda vs. Arizona decision, which extended the courtroom right of silence to the police station. Chief Justice William H. Rehnquist retorted that even “Mirandized” confessions must be voluntary.

“We’ve had 50 cases on Miranda. To say it’s easily applied is just a myth,” the chief justice said.

Mr. Hundley asked the court not to “roll back the clock” by reverting to a voluntariness test.

“There’s no question of going back to a voluntariness test. We’re already there,” said Mr. Cassell, a former law clerk to Justice Antonin Scalia.

Mr. Hundley represents Dickerson in charges from the Jan. 24, 1997, robbery at First Virginia Bank in Alexandria. The 4th Circuit Court ruled that statements implicating Dickerson in seven robberies, as well as evidence seized at his Maryland apartment, were given voluntarily as prescribed by Section 3501.

Mr. Waxman agreed with the bank robber’s position that Section 3501 can’t be reconciled with the 1966 high court ruling because the Miranda rules are mandatory and that Congress can’t change a constitutional decision of the court.

“The Constitution is what gives the court the power to impose the rule. That doesn’t mean Congress can’t change that rule,” Justice Scalia said.

“In our past Miranda cases, the government has taken the position the warning is not constitutionally required,” said Justice Sandra Day O’Connor, pointing out to Mr. Waxman the administration’s change of heart.

He conceded that was true and said other phrasing could meet the Miranda test, but not the substance of Section 3501. Justice John Paul Stevens said Section 3501 was the brainchild of lawmakers seeking to repeal a decision with which they disagreed.

“It is very disappointing that the Department of Justice will argue against the constitutionality of this amendment,” said one of the original co-sponsors of Section 3501, Sen. Strom Thurmond, South Carolina Republican, before yesterday’s hearing.

Mr. Cassell insisted the language that became the Miranda warning was only the court’s “provisional, interim judgment” until Congress could take appropriate action.

“We now have appropriate congressional action,” he said.

“Miranda is a bedrock decision,” said Justice Ruth Bader Ginsburg, who argued against letting Section 3501 supplement the Miranda decision.

“It may well be that the failure to warn a suspect may mean a statement is involuntary, but not always,” said Mr. Cassell. He is backed by a coalition of law enforcement organizations, 17 states including Virginia, 10 senators, and anti-crime interest groups.

Dickerson’s contention that only the Miranda warning will suffice to protect Fifth Amendment rights is backed by House Democratic leaders, the Rutherford Institute, former attorneys general Griffin Bell and Benjamin Civiletti, organizations of defense lawyers, and the American Civil Liberties Union.

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