Take the Fifth: Confession & conviction
April 10, 2008
Which is worse: A confessed murderer getting off on a technicality or a confessed murderer’s right to remain silent being violated?I had a feeling that’s what you would say. I knew that’s what you’d say.Ever since the 1966 ruling of Miranda v Arizona, criminals have a right to remain silent and the right to speak to a lawyer before being questioned. You’ve seen it on television shows like Law and Order and CSI and movies such as Guys and Dolls. On a personal note, I am good friends with Harold Berliner, the brilliant former Nevada County District Attorney, who initially drafted the so-called Miranda Warning. The entire federal 9th U.S. Circuit Court of Appeal ruled on a new Miranda right to remain silent case, which I suspect may be appealed to the more conservative U.S. Supreme Court.
Jerome Alvin Anderson and the victim Robert Clark were buddies. Their mutual friend, Patricia Kuykendall, discovered that her car had been stolen. Defendant Anderson and Kuykendall confronted Clark suspecting he was involved, and low and behold, Clark’s body was discovered later that afternoon by the side of the road. He had been shot in the head four times. The police took Anderson into custody for a parole violation. Four officers interviewed him for three and a half hours.
The officer’s examination went like this: Officer: You act like you’re cryin’ like a baby, an’ you can’t cry for someone that was a no good an’ you killed him for a good reason.Anderson: No, way! No, way. I you know what, I don’t even wanna talk about this no more. We can talk about it later or whatever. I don’t want to talk about this no more. That’s wrong. That’s wrong. Officer: Were you high that day?Anderson: No, sir. I probably was later on. Yes.Officer: You smoke dope with pipes?Anderson: Uh! I’m through with this. I’m through. I wanna be taken into custody, with my parole . . . I plead the Fifth.Officer: Plead the Fifth. What’s that?Anderson: No, you guys are wrong. As far as I know you guys are lying, uh, making things up, extenuating and that’s not right. It’s not right.The questioning continued until Anderson asked, I’d like to have an attorney present.At that juncture as the court writes the officer turned off the tape recorder and, somewhat suspiciously, concluded that Anderson wanted to reinitiate the discussion, which led to three more hours of questioning, which led to a confession by Anderson.
The Fifth Amendment states in part that no person shall be compelled in any criminal case to be a witness against himself It is sometimes called the privilege against self incrimination. Taking the Fifth, of course, means you don’t wanna talk no mo. You choose not to testify against yourself, you prefer to remain silent.
The trial court recited the Miranda ruling, If an individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.However, the trial court found Anderson’s I plead the Fifth ambiguous and determined the interrogating officer’s reply I plead the Fifth. What’s that? was a legitimate clarifying question. So the trial court upheld the questioning, the confession and the conviction.
The 9th Circuit reversed, concluding Anderson clearly desired to remain silent, writing, This is not a case where the officers or the court were left scratching their heads as to what Anderson meant. The Justices pointed out that Anderson had twice attempted to stop the police questioning, and finally said I plead the Fifth. As the Court wrote, Taking the Fifth is as unequivocal as one can get invoking the right to remain silent. Instead of scrupulously honoring the request, the interrogating officer decided to play dumb, hoping to keep Anderson talking by inquiring, Plead the Fifth. What’s that? This effort to keep the conversation going was almost comical. At best the officer was mocking and provoking Anderson. The officer knew what I plead the Fifth meant.The Justices overturned the trial court and threw out the confession and guilty verdict.
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Circuit Judge Tallman, not wanting to let a confessed murderer off, dissented, writing, Lewis Carroll was right: When I use a word it means just what I choose it to mean, neither more nor less. The dissenting Justice felt the majority fixated on the words plead the Fifth in the midst of a three and one-half hour interrogation, noting Jerome Alvin Anderson was a known felon on parole who admitted to killing his friend Robert Clark. The dissenting Justice let his feelings be known concluding, the majority decrees a murderer is to go free because the constable has blundered.I’m sure many readers agree with Justice Tallman’s sentiments. Jim Porter is an attorney with PorterSimon, with offices in Truckee, South Lake Tahoe and Reno. He may be reached at firstname.lastname@example.org or at the firm’s web site http://www.portersimon.com. 2008
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