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The Supreme Court’s decision in U.S. vs. Dickerson affirms its landmark Miranda decision of 1966 that police must warn criminal suspects of their “right to remain silent” when questioned. On April 19, when the court heard arguments regarding the need to defendants’ Fifth Amendment right against self-incrimination with law enforcement efforts to elicit confessions from them, Laurie Magid, a Villanova Law School professor, was present by invitation. What is arguably the most famous case to be decided by the Supreme Court, Arizona v. Miranda, among other things, transformed a staple law enforcement phrase into one of the most recognized expressions in the American lexicon. “You have the right to remain silent. Anything you say can and will be used against you in a court of law…” So familiar is this phrase, in fact, that it has been determined that more American schoolchildren can identify and recite it than they can Lincoln’s Gettysburg Address. But what some see as a fundamental component of the criminal justice system that has only recently become confused and complex, Magid views as flawed from the very start. The prosecutor turned professor contends that while Miranda sought to clarify certain issues involving custodial interrogation, it only made them murkier. “For the last 34 years it has been a debate within academia and within the courts in figuring out how to apply Miranda,” Magid said. Members of the academic and legal communities were surprised, Magid said, that the Supreme Court decided to revisit what many considered “the fundamental bedrock principle” of the Miranda decision by accepting certeriorari in U.S. v. Dickerson. After more than three decades, the ruling seemed inviolate even to its critics. “The Miranda debate has not only gone to another level, it’s gone to a whole other place. There are good things about Miranda but nobody anymore can call it a bright-line test that offers clear guidance to police, prosecutors and judges.” Each Monday morning since April 19, the very first thing Magid has done is check her computer for news of a decision by the Supreme Court in the case of U.S. v. Dickerson. The professor correctly predicted that the decision will be among the last handed down before the court recesses for the summer. This Monday she was finally satisfied. As Magid sees it, the much-anticipated decision in Dickerson will not be the end of either the debate on the subject or changes to the law. BUILDING SCHOLARSHIP Magid is a recognized Miranda scholar and has written two well-received articles on the topic of Miranda and its effects on law enforcement and prosecution. “It wasn’t like I sat around thinking about it in the abstract,” Magid said. “I got to see in practice what people call ‘technicality’ cases where a confession gets thrown out because you don’t have complete compliance with every little part of the Miranda requirements.” One of the first cases which focused Magid’s attention on Miranda came in 1985. Magid was a new assistant prosecutor in the Philadelphia District Attorney’s office during the spring it tried the high-profile Wilfredo Santiago case. The prosecution obtained a guilty verdict against Santiago for the murder of Philadelphia police officer Thomas Trench. The state Supreme Court later reversed the conviction and ordered a retrial due to a Miranda issue. “There were good arguments on both sides,” Magid conceded. “But it was an issue that the court struggled with, so how can you expect police officers to know [that] if a person invokes their Miranda rights and then meets with an attorney, you can’t go back and ask him if he’d like to speak with you.” Magid had been a prosecutor in Philadelphia for nine years during which time she tried hundreds of criminal cases. She was subsequently appointed assistant district attorney in Delaware County specifically to handle the appeals brought on behalf of John DuPont by famed defense attorney Alan Dershowitz. DuPont is currently serving 13 to 30 years for the murder of Olympic gold-medal winning wrestler Dave Schultz. A few weeks ago, the Pennsylvania Supreme Court rejected a challenge to the Pennsylvania law which enabled a jury to convict the multi-millionaire with a verdict of “mentally ill but guilty.” Magid graduated magna cum laude from the Wharton School of Business at the University of Pennsylvania and was a Harlan Fiske Stone Scholar at Columbia Law School in New York. She formerly taught criminal procedure and appellate advocacy at Temple’s Beasley School of Law and Widener Law School in Pennsylvania and she currently teaches full time at Villanova University School of Law in Philadelphia. TAKING ANOTHER LOOK Ironically, the warning which had never been given to Ernesto Miranda now bears his name. Police officers routinely Mirandize suspects when they take them into custody prior to questioning by informing them of their right to remain silent and their right to obtain counsel. The due process analysis prior to Miranda, which established standards for voluntariness, was deemed not protective enough by the court led by then Chief Justice Earl Warren. The court sought to ensure any waiver of these rights be made knowingly and intentionally. The current debate focuses on the level of protection afforded by Miranda, which is considered a constitutional mandate by Dickerson’s counsel and others. The arguments in the Dickerson case focused on 18 U.S.C. Section 3501, nicknamed “the statute that time forgot.” It provides that “the warnings of Miranda are not an absolute requirement, but only a factor in determining the admissibility of a statement.” Charles Dickerson, a Maryland resident, became a suspect in the robbery of an Alexandria, Va., bank in 1997. An FBI search of his apartment turned up a mask, a handgun and dye-stained currency. Dickerson purportedly confessed to being the getaway driver and incriminated an accomplice as the gunman in the crime. An open-and-shut case for the prosecution, it would seem, but the confession was ruled inadmissible. The transcript supplied by police indicated that the interrogating officers read Dickerson his rights at a time that coincided with the conclusion of his statement rather than at the beginning. The statement, by all accounts, was offered voluntarily. “In Dickerson, the Miranda warnings were given,” Magid said, “but there was a conflict … The police officers and detectives testified that they gave the warnings before they questioned him. But the district court said ‘we rule for the defendant; the confession is out.’” At some point in the case, the government decided not to argue Section 3501 as a basis for keeping Dickerson’s confession on the record. “In a rather bizarre procedural twist in this whole case, the 3501 argument was taken out and was not then made by the government because the directive came from Washington — from the Department of Justice — saying, ‘we, the government, do not support 3501.’” Magid said. Congress passed the Omnibus Crime Control and Safe Streets Act of 1968 in response to the “firestorm of controversy” in the aftermath of Miranda. Section 3501 of that act stated that all statements were admissible in federal court as long as they were made voluntarily. In recent years, the Justice Department stance has been that Congress did not have the authority to pass the 1968 statute. Enter Professor Paul Cassell of the University of Utah law school, who filed an amicus brief in the case. Cassell resurrected the infrequently cited 1968 statute, Section 3501, before the 4th U.S. Circuit Court of Appeals, as the basis for retaining the confession as evidence. Cassell filed many similar briefs in the past without success, but this time the court agreed with him. The courts revisited Section 3501 during the 1970s in two cases, U.S. v. Crocker and Michigan v. Tucker. In Crocker, the judges found that Section 3501 determined the admissibility of a statement, while in Tucker, the court stated that Miranda warnings were meant to be “prophylactic” and therefore were not a constitutional requirement. In subsequent years, the appellate courts for the most part ignored these decisions and not one presidential administration since Richard M. Nixon’s attempted to enforce Section 3501. “The whole debate has shifted from tinkering with Miranda and refining Miranda to real considerations about replacing it entirely.” Magid said before the decision. “No matter how Dickerson comes out this debate has now been ratcheted up a whole level and will become more and more intense.” PREDICTIONS At the oral arguments in Dickerson, Magid sat in the second row just behind South Carolina Sen. Strom Thurmond. All the justices, Magid reports, spoke and asked questions except Justice Clarence Thomas, who nevertheless is customarily a pro prosecution jurist. “You could see four strong supporters of Miranda led by Justice Ruth Bader Ginsburg,” Magid said. “She asked the most questions showing that she favored retaining Miranda as a strong protective test, just as it is. With her will be Justice [John Paul] Stevens, Justice [Stephen] Breyer and Justice [David] Souter.” Chief Justice William Rehnquist was a bit milder in his questions than Magid said she expected. But on the basis of prior decisions, Magid put him in the camp to overrule Miranda. Justice Antonin Scalia would say, as he repeatedly has said, that the statute in question here has overruled Miranda, Magid correctly predicted. She also noted that as recently as 1994 the conservative justice had pointedly encouraged government prosecutors arguing before him to apply Section 3501 and harshly criticized the omission. Magid also pointed out that Cassell, before becoming a deputy attorney general with the Justice Department, he coincidentally, clerked for Justice Scalia when Scalia was on the bench for the U.S. Court of Appeals for the D.C. Circuit. In terms of support for Scalia’s position, Magid said that Justice Thomas usually votes on criminal matters with Scalia. Just as the debate on the scope of Miranda ideologically divides law enforcement agencies and civil libertarians, there are two schools of thought regarding confessions, according to Magid. On one hand, confessions are beneficial to police and prosecutors but the interrogation process is considered inherently coercive. Videotaping confessions could serve to erase doubts as to their validity, but others believe police should rely on increasingly sophisticated investigative techniques to solve criminal cases. “Some crime can’t be solved by being a good investigative officer,” Magid said. “In cases, for example, of sex abuse against children you don’t necessarily have a lot of physical evidence because the child may only relate these incidents to people much later on.” Currently, Professor Magid is looking forward to attending a symposium this fall at Michigan Law School led by Professor Yale Kamisar, “the godfather of Miranda,” Magid said. Kamisar has been a strong supporter of Miranda, Magid added, and his writing may have influenced the Warren Court. U.S. Solicitor General Seth Waxman will be the keynote speaker and the participants will debate the outcome of the Dickerson case. Each professor has been asked to write an essay on some aspect of the case. “This is going to get a lot of attention,” Magid said. “Practitioners, prosecutors, criminal defense attorneys, and judges are all going to be saying ‘How does Dickerson affect everything we’ve known and applied for 30 years?’ It’s going to keep us all gainfully employed and very busy figuring this out.”

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