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An unusual alliance of California Supreme Court justices banded together Thursday to produce a ruling that weakens criminal suspects’ Miranda rights in certain situations. Justice Marvin Baxter — the most pro-prosecution member of the court — was joined by the bench’s lone Democratic appointee and the three justices least likely to favor law enforcement in admitting a confession given two days after the defendant invoked his rights to counsel. Chief Justice Ronald George and Justice Ming Chin — who rank right behind Baxter in rulings favoring law enforcement, dissented — saying the atypical majority’s holding encouraged police misconduct. “Oh my god. That’s bizarre,” Santa Clara University School of Law Professor Gerald Uelmen, an expert on the high court, said Thursday about the breakdown of the vote. “Here you’ve got Baxter lined up with really the four other justices who are most pro defense, and George and Chin, who are very pro prosecution, dissenting. That’s very unusual.” Uelmen, who keeps track of the court’s trends, said his studies show that Baxter favors the prosecution in 89 percent of cases, followed closely by both Chin and George at 79 percent. Justice Janice Rogers Brown is next at 63 percent, with Justice Kathryn Mickle Werdegar at 52 percent and Justice Joyce Kennard at 26 percent. All three concurred with Baxter Thursday. Justice Carlos Moreno, appointed by Democratic Gov. Gray Davis 10 months ago, also joined Baxter. Uelmen, however, has no figures yet on his voting patterns. “It’s going to be interesting to watch Miranda issues now,” Uelmen said, “with George and Chin very protective of Miranda, and the U.S. Supreme Court, of course, whittling away at it for 40 years now.” Uelmen added that the U.S. Supreme Court would likely agree with the majority’s take on the dispute. Thursday’s case came out of San Diego County, where Charles Edward Storm accused detectives of violating his rights under the U.S. Supreme Court’s rulings in 1966′s Miranda v. Arizona, 384 U.S. 436, and 1981′s Edwards v. Arizona, 451 U.S. 477. Edwards prevents officers from recontacting a suspect who has invoked his Miranda right to counsel. Storm, eventually convicted of the 1996 murder of his wife, Gloria Andrade, said detectives violated that right by questioning him at his home two days after he invoked his rights during an interrogation at the officers’ stationhouse. The California Supreme Court, agreeing with San Diego’s 4th District Court of Appeal, said the special protections of Miranda and Edwards only apply to suspects who remain in custody, and that the two-day difference in questioning provided officers with a break-in-custody exception to the Edwards no-recontact rule. “The narrow nature of our holding should be emphasized,” Baxter wrote. “We conclude only that Edwards is not violated when the police re-contact a suspect after a break in custody which gives the suspect reasonable time and opportunity, while free from coercive custodial pressures, to consult counsel if he or she wishes to do so. “We do not suggest,” he added, “the police can avoid Edwards simply by allowing the suspect to step outside the stationhouse at midnight on a Saturday, then promptly re-arresting him without affording any realistic opportunity to seek counsel’s assistance free of the coercive atmosphere of custody.” The ruling affirms Storm’s 56-year-to-life prison term. In dissent, Chief Justice George and Justice Chin accused the majority of removing any incentive for officers to terminate interrogations once a suspect invokes Miranda rights. “We should not countenance a ruse whereby Miranda is given judicial lip service — obeyed in name but not in fact,” George wrote. “Unfortunately, the court’s opinion will encourage precisely the sort of subterfuge by some law enforcement investigators, with the ensuing violation of constitutional rights, that Miranda sought to end.” Chin followed up on George’s point by saying officers “will have carte blanche to ignore Miranda/Edwards” by paying no heed to a suspect’s request for counsel, terminating the interrogation and resuming in a non-custodial setting without providing fresh Miranda warnings. “We would be naive to assume,” he wrote, “that law enforcement agencies will not take advantage of the new evidentiary door the majority’s holding would helpfully open for them.” Chin also chastised the majority for refusing to rule that Storm’s confessions at his home weren’t tainted by his earlier confessions at the stationhouse, which were thrown out at trial because they had been obtained after Storm invoked his right to counsel. “Although the cat-out-of-the-bag cliche may seem trite,” he wrote, “it also seems quite apt here, for defendant certainly would not have so readily confirmed his earlier confession had he never made it in the first place, and he never would have made it had the officers honored his initial request for counsel and terminated their interrogation.” In a separate writing, Justice Kennard agreed with the majority that detectives had not violated Storm’s rights under Miranda or Edwards. But she broke with the majority for addressing the “tainted” confession argument at all, because Storm had not raised it in any lower court. Storm’s lawyer, San Diego solo practitioner David McKinney, couldn’t be reached for comment Thursday. But San Diego Deputy Attorney General Holly Wilkens, who represented the government, called the ruling “an advantage to law enforcement.” “We’ve got an answer to the break-in-custody exception,” she said, “and it’s also good to know whether or not you are required to re-advise and get Miranda waivers” in a non-custodial situation. Wilkens said she fully expects her opponent to seek U.S. Supreme Court review because the high court has not directly addressed the issues tackled by the California Supreme Court on Thursday. The case is People v. Storm, 02 C.D.O.S. 7474.

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