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As the Supreme Court cuts back on the rights of criminal defendants, some state courts have stepped in to pick up the slack. In two key areas- Miranda rights and Eighth Amendment challenges to sentences-state courts have come forward to afford defendants relief, even though not required to do so by recent Supreme Court precedent. The high court’s interesting take in ‘Chavez’ Consider, for example, the area of Miranda rights. Just this term, in a sharply divided opinion, the Supreme Court held in Chavez v. Martinez, 123 S. Ct. 1994 (2003), that a violation of a defendant’s Miranda rights does not create a cause of action under 42 U.S.C. 1983. In Chavez v. Martinez, Oliverio Martinez, a farm worker who, unfortunately, strayed by a police investigation, was shot repeatedly during a scuffle with police officers. Although seriously injured, Martinez was subject to a constant barrage of questioning by police Sgt. Ben Chavez as he was being transported to, and then lying, in his hospital bed. Chavez never informed Martinez of his Miranda rights and Martinez ended up making some incriminating statements. However, those statements were never used against him because Martinez was never charged with an offense. Martinez, however, turned around and sued Chavez under 42 U.S.C. 1983 for allegedly violating his constitutional rights. A majority of justices rejected Martinez’s claim. In holding that the questioning officer and his department did not face civil liability for the unlawful questioning, the court took away a key disincentive for officers inclined to violate a suspect’s Fifth Amendment rights. Knowing that they will not face civil liability, officers can feel free to violate a defendant’s constitutional rights as long as they are willing to forgo later use of the illegally obtained testimony in a future prosecution of the defendant. As civil rights and criminal defense lawyers lamented the court’s decision in Chavez v. Martinez, the California Supreme Court was busy deciding another case that raised Miranda issues. In People v. Neal, 2003 Cal. Lexis 4426 (July 14, 2003), police officers demonstrated their contempt for safeguarding a defendant’s Miranda rights. Kenneth Ray Neal was convicted of the murder of Donald Collins and sentenced to imprisonment of 15 years to life. Prior to his trial, Neal moved to suppress statements he made to Detective Mario Martin, who interviewed him after the murder. Neal claimed that the statements were obtained in violation of his Miranda rights. The evidentiary hearing on the motion to suppress revealed that Martin had intentionally pressed on with questioning Neal, even though Neal repeatedly invoked his right to counsel. Among other things, Neal said, “I am ready to talk to my lawyer” and “I am not saying nothing now.” Nonetheless, Martin continued with his interrogation. Nine times Neal asked for counsel; each time Martin ignored his request. Martin admitted at the pretrial hearing that he intentionally continued his interrogation in deliberate violation of Miranda in hopes that he would obtain statements that might be used “for possible further impeachment at trial . . . if defendant decided to testify.” Martin knew he was violating Miranda, but he frankly didn’t care. He had learned from his supervisor that it was a “useful tool” to coerce such statements so that they could be used for potential impeachment. The first day he concluded the interview only because he “was tired of listening to defendant deny killing Collins.” The next day, however, Martin’s efforts produced results. Neal ultimately confessed twice to the murder. Neal testified that he finally told Martin whatever he wanted to hear because of the exhaustive nature of the questioning and his weakened condition from not having eaten for 36 hours. The trial court found that Martin’s initial interrogation of Neal had been in “blatant disregard” of Miranda. Therefore, in accordance with Harris v. New York, 401 U.S. 222, 225-226 (1971), the court would only allow portions of that statement to be used as impeachment. However, over Neal’s objections, the court ruled that the prosecution could introduce Neal’s subsequent confessions because Neal had initiated those conversations with Martin. See People v. Peevy, 17 Cal. 4th 1184 (1998). The California Supreme Court disagreed. Fully realizing that officers now have little disincentive to violate a defendant’s Miranda rights, the court held that Martin’s deliberate violation of Miranda, in conjunction with the defendant’s youth, inexperience, minimal education, low intelligence, deprivation and isolation, led to the subsequent confessions being involuntary. As a result, they too were illegally obtained and were not admissible for any purpose because they were involuntary. See Edwards v. Arizona, 451 U.S. 477 (1981). Although the court’s decision in Neal provides some added incentive for officers to comply with the laws of interrogation, it falls short of saying that whenever there is an intentional violation of Miranda, the defendant will be able to automatically suppress a subsequent voluntary statement. It does, however, signal that at least some courts are seriously concerned about how to ensure compliance with Miranda following the Supreme Court’s recent decision in Chavez v. Martinez. Nearly the identical issue will be raised before the United States Supreme Court next term in Missouri v. Seibert, No. 02-1371. As prior decisions of the court have demonstrated, the justices are divided in how they believe Miranda should be enforced. Soon, the U.S. Supreme Court will have to confront the reality that there is so little disincentive to violating Miranda that police departments are actually training officers to ignore defendants’ assertions of their constitutional rights. For the time being, the California Supreme Court’s decision in Neal provides one example of how to enforce those rights by holding subsequent confessions to be unconstitutional. The U.S. Supreme Court will have the opportunity to go all the way in barring any confessions that are made following an intentional disregard of Miranda. The Fifth Amendment is only one area in which state courts are filling the gaps in defendants’ rights left by recent Supreme Court decisions. Another such area is Eighth Amendment challenges of sentences as cruel and unusual punishment. This past term, the Supreme Court decided two key cases regarding defendants’ Eighth Amendment right to challenge a cruel and unusual sentence. In Ewing v. California, 123 S. Ct. 1179 (2003), and Andrade v. Lockyer, 123 S. Ct. 1166 (2003), the high court rejected challenges to the application of California’s “three-strikes” law to defendants charged with relatively minor offenses. In Ewing, the recidivist defendant received a 25-years-to-life term for stealing three golf clubs. In Andrade, the defendant received a 50-years-to-life sentence for stealing children’s videotapes. Although the Supreme Court reaffirmed in those decisions that it would apply the disproportionality standard of Solem v. Helm, 463 U.S. 277 (1983), and Harmelin v. Michigan, 501 U.S. 957 (1991), most state and federal courts are interpreting the Supreme Court’s decisions as precluding any Eighth Amendment challenges to sentences by defendants charged as habitual offenders. See, e.g., Fausto v. Hickman, 2003 U.S. Dist. Lexis 9744 (N.D. June 9, 2003). However, there is at least one court that has recently held to the contrary. A man who wasn’t exactly Al Capone In Crosby v. Delaware, 824 A.2d 894, 2003 Del. Lexis 304 (May 30, 2003), Chris A. Crosby challenged his life sentence as a habitual offender. Crosby was sentenced to a life term after he was convicted of forgery in the second degree for lying to officers about his identity during his arrest on misdemeanor drug offenses. Crosby had certainly not been a model citizen. He had five previous felonies for third-degree burglary, forgery, possession of a deadly weapon, possession with intent to deliver narcotics and second-degree burglary. However, he also wasn’t Al Capone. While noting that the Supreme Court’s recent decisions in Ewing and Andrade had upheld harsh sentences, the Delaware Supreme Court held that Crosby’s sentence of 45-years-to-life imprisonment was disproportionate even for a habitual offender. Using the first two parts of the U.S. Supreme Court’s three-part standard for evaluating whether a sentence is grossly disproportionate, the Delaware Supreme Court looked at the severity of Crosby’s offenses and the sentences issued in Delaware to other habitual offenders. The court wrote: “[Crosby's] prior history, although hardly commendable, does not include the kind of repeated, violent crimes common to many habitual offenders . . . .Crosby’s sentence far exceeds any habitual offender sentence imposed in Delaware in the past year. Based on these factors, we conclude that the United States Supreme Court would find Crosby’s sentence to be cruel and unusual punishment under the Eighth Amendment to the Constitution.” Given the Supreme Court’s harsh rulings in Andrade and Ewing, it is not altogether clear that the U.S. Supreme Court would show the same compassion as the Delaware Supreme Court. Nonetheless, the Delaware court took the bold step of striking down Crosby’s life sentence as cruel and unusual punishment. In doing so, that court breathed life into a constitutional amendment that other courts had thought was essentially on life support following last term’s U.S. Supreme Court decisions. We often think of the Supreme Court as having the final say regarding a defendant’s rights in criminal cases. While that is technically true, lower courts have the power to reopen the issue and mitigate the impact of the court’s decisions. The two recent decisions of courts at opposite ends of the country- Neal and Crosby-are examples of the impact that state courts can have in shaping the future of constitutional protection for criminal defendants. Laurie L. Levenson is a professor of law and a William M. Rains Fellow, and director for the Center of Ethical Advocacy at Loyola Law School, Los Angeles. She can be reached at [email protected].

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