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The right to remain silent?; Law professor, justice of Supreme Court aim to replace Miranda


WASHINGTON -- "Miranda warnings" seem to have become a permanent fixture not only in daily police life but also in television and movie dramas. But that is not the way Antonin Scalia and Paul G. Cassell would have it, and they just might get their way.

For years, Scalia, a Supreme Court justice, and Cassell, a University of Utah law professor and a one-time law clerk to Scalia on a lower court, have worked -- not in tandem, but in common purpose -- to challenge the Miranda decision and its famous mandate to police.

The warnings, required before police may question a suspect they hold, are designed to prevent forced confessions. The words are familiar: "You have the right to remain silent" ... "You have the right to an attorney" ... "Anything you say can and will be used against you."

The 1966 decision in Miranda vs. Arizona has so much history behind it that the warnings sometimes seem invulnerable to attacks from critics such as Scalia and Cassell. But that perception is based on two supposed truisms.

The first is that no one is serious anymore about changing the ruling, which withstood an assault by Cassell when he was a top-level Justice Department official in the Reagan administration. The second is that seven consecutive presidential administrations helped make it permanent by willingly accepting it.

Both are untrue. Miranda is under siege again, and may be more vulnerable to change than at any previous time in its 33-year history.

If Miranda warnings are changed or cast aside, Miranda's supporters are convinced, police will return to trickery in interrogation, and perhaps to strong-arm tactics. The decision's critics maintain that the guilty will continue to get off on technicalities if the warnings are not relaxed.

No one can predict whether a majority of five Supreme Court justices stands ready to overrule Miranda, although in recent years the court has significantly narrowed the decision's scope. And the day might be coming when the court would cut back so sharply on the mandate that police would no longer issue the warnings.

The court might soon have to rethink Miranda, to decide whether it is rooted in the Constitution -- and thus can be undone only by overruling it or by amending the Constitution.

If the court decides that Miranda has no constitutional basis, federal agents would be bound by what's known as "Section 3501," a 1968 federal law that is far more permissive about police interrogation practices. State and local police would no longer be bound by Miranda. Freed of the legal risk of losing cases because of Miranda violations, officers might give up the procedure. From Miranda's beginning in 1966, it has applied to police at all levels.

This month, the 4th U.S. Circuit Court of Appeals in Richmond, Va., began setting the stage for an ultimate test of the Supreme Court's willingness to stand by Miranda. The appeals court concluded that Miranda has been displaced by Section 3501.

Two of Miranda's most determined challengers can take some credit for this new and serious threat to Miranda: Justice Scalia and Utah professor Cassell. Scalia has been publicly advocating a confrontation over Miranda for seven years, and the Circuit Court relied heavily on his views; Cassell has been pursuing that confrontation nearly twice as long, and he argued the case in Richmond.

Cassell says he and Scalia have never talked directly about their views on Miranda, but they have denounced the decision in the same terms: They say it has led to the freeing of many suspects who were guilty of crimes, but who got off because of Miranda.

Congress decreed that if a suspect being held by police for a federal crime had confessed voluntarily, the confession could be used as evidence even if the police had given no Miranda warnings. The backers of Section 3501 thought of it ambitiously, as an intentional, direct affront to Miranda, so that the two could not coexist.

What had to happen to set up a confrontation over the constitutionality of that section and over the fate of Miranda was a test case for the courts -- one like the case unfolding in the federal appeals court in Richmond involving Marylander Charles Thomas Dickerson, accused of a string of bank robberies.

The Dickerson case seems an ideal test: His Miranda rights were violated, but the confession he gave was found to be voluntary. If the Miranda decision were followed, his confession would be barred as evidence; Section 3501 would allow it. The appeals court said it must be allowed, because of Section 3501.

When the law was newly on the books, and in many years since, no such test cases were likely. President Lyndon Johnson signed Section 3501 even though he said in a message that it was "vague and ambiguous." He ordered federal agents to "continue to conform to the Constitution" and to go on giving suspects "full and fair warning of their constitutional rights."

That was the first administration to refuse to apply Section 3501, and the first to deliberately avoid a confrontation over Miranda. Other administrations since have done the same -- but not all of them.

The Clinton administration is firmly wedded to Miranda, and hostile to Section 3501. Several lower-level prosecutors in this administration have used Section 3501 to try to get courts to accept voluntary confessions made without proper warnings, only to be overruled by superiors.

This month, Attorney General Janet Reno made the administration position firmer still. The Miranda decision, she told reporters, is based on the Constitution, and "this administration and other administrations preceding it, of both parties," have agreed that only the Supreme Court can change it.

One day later, the Justice Department put out a formal memo to all federal prosecutors: "Unless the Supreme Court were to modify or overrule Miranda and the cases that have continued to apply it, the lower courts are not free to rely on Section 3501 to admit statements that Miranda would exclude, and the United States is not free to urge lower courts to do so."

That was an echo of the Johnson administration view from 31 years ago. But Reno's perception, widely held these days, that this has always been the federal government's view is mistaken.

When Richard M. Nixon's presidency began in 1969, after candidate Nixon had campaigned against the Supreme Court's liberal decisions, including Miranda, his administration soon wiped out the Johnson administration interpretation of Section 3501. Federal prosecutors were told to use that law to get courts to accept voluntary confessions that violated Miranda.

Section 3501 put on hold

Prosecutors did so in several cases, and got at least one federal appeals court to sympathize with that interpretation in 1975. After that, Section 3501 vanished, for a time, from federal prosecutors' consideration in Miranda cases; it is not clear why.

Then, in the Reagan administration, Section 3501 had a temporary revival. In the summer of 1986, a lengthy Justice Department report, done under the leadership of then-assistant attorney general Stephen J. Markman, called for a strategy that would take a case to the Supreme Court with either a direct plea to overrule Miranda, or at least a request to interpret Section 3501 as having displaced Miranda.

Soon after the Markman Report appeared, Cassell, after serving as a law clerk to Scalia when he was on the U.S. Circuit Court of Appeals in Washington and to Chief Justice Warren E. Burger at the Supreme Court, became a top-level Justice Department official.

One of Cassell's assigned duties was to carry out the Markman Report by finding a Justice Department case to pit the 1968 law against Miranda. Two cases were found, but top department officials decided that each had procedural problems, Cassell recalls.

In 1992, Cassell joined the law faculty at the University of Utah, and continued to press his legal crusade against Miranda and in favor of Section 3501. He began an alliance with the Washington Legal Foundation, a conservative legal advocacy group, that has led to a series of courtroom assaults on Miranda -- including the successful challenge in the appeals court in Richmond.

Lost in bureaucracy

While Cassell remained an activist on the issue, Section 3501 was getting lost again in the Justice Department bureaucracy.

However, in 1992, Scalia took up the cause. It was the last year of the Bush administration, and John G. Roberts, Jr., a deputy U.S. solicitor general, was appearing before the Supreme Court in a criminal case involving a voluntary confession.

Scalia confronted Roberts: "I've been listening to Miranda cases ... for seven terms now. Why has the United States never cited in any of these cases Section 3501? Is there some reason? ... It's clearly very relevant to this case."

Roberts said he did not know why, prompting Scalia to ask: "Is this sort of executive nullification of a congressional statute?"

Roberts said he could not explain why the justices had never been asked to rule on it.

It was a refrain to which Scalia would return. After the Clinton administration came into office, not much more than a year passed before Scalia was pressing the issue anew. In a military court-martial case, Scalia said to a Justice Department lawyer:

"The government just comes in time after time and doesn't take any position on raising 3501, continues to argue Miranda as though there's no statute explicitly addressing it. ... It seems to me the government ought to have a position on this."

O'Connor interested

Justice Sandra Day O'Connor also expressed an interest in Section 3501 in that case.

Cassell had played a role in stirring their interest. He submitted a friend-of-court brief in the case for the Washington Legal Foundation. The brief argued fervently that the 1968 law trumped the Miranda decision.

The decision in that case came out in June 1994, but the court took no position on Section 3501 and its effect on Miranda.

O'Connor wrote the opinion, saying questions about that conflict were not before the court. However, Scalia wrote a separate opinion lambasting several administrations for passing over Section 3501. The court should not continue to ignore Section 3501 and Miranda, he said.

Once again, Cassell has been busy trying to see that that happens, and he and the Washington Legal Foundation have found the appeals court in Richmond most receptive.

When the Justice Department refused before that court to defend Section 3501 to save Dickerson's confession as evidence, the court invited the foundation, with Cassell as the lead lawyer, to do so, and they did, winning their most significant victory.

Lyle Denniston covers the Supreme Court for The Sun.

Pub Date: 02/28/99

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