Do You Remember an Inn, Miranda?

The arrest of the Boston Marathon suspect has made “Miranda Rights” a trending topic on Twitter, as the authorities have apparently decided not to Mirandize him.  This has in turn put renewed attention on this old story about the FBI’s aggressive interpretation of the public-safety exception to Miranda, instructing agents to avoid Mirandizing terror suspects for as long as possible.

This prompts the question: why do law enforcement officers have any objection to Mirandizing terror suspects?  I can think of four possibilities.

1: Miranda really works. That is, there are suspects who would be prepared to give the police information, but after being told that they don’t have to, would decide to keep quiet. While this view appears to be the premise of Miranda itself, most people I know who are familiar with the criminal justice system don’t find it likely.  It would be highly surprising if this were true.

2: It’s not the Miranda warnings, it’s the Miranda rights.  I haven’t done enough research to know whether this holds water, but I wonder if the decision to delay Mirandizing also delays the various other rules that go along with Miranda.  Can a suspect who is in custody but not Mirandized still invoke his Miranda rights, along with the prophylactic rules that go with them?  Can that suspect’s refusal to answer questions be used against him at trial (pending Salinas)?  In other words, it might be that in addition to providing information, Mirandizing a suspect actually changes his legal status in an important way.  I don’t know if this is actually true and nobody has provided this as an explanation, but I have been wondering about it.

3:  It’s politics.  The administration is anti-Miranda because Lindsey Graham wants them to be, and the administration wants to find low-cost ways to make Lindsey Graham think they’re tough on terrorism.  I wouldn’t rule this out, but it doesn’t answer the question of why Lindsey Graham cares.

4:  Synechdoche.  Nobody cares about the Miranda rights themselves.  But Miranda is the iconic beginning of the criminal process, so Mirandizing somebody is a symbol that we might give them criminal due process rights, rather than military detention.  For those who think that military detention is tougher than criminal justice (and it’s not clear that’s correct, but lots of folks do seem to think it), fighting Miranda is rally just a publicly-digestible way to insist that the war on terror is a war, not a law enforcement operation.

Fun With Hearing Lists

There’s lots of interesting stuff in the hearing list for the April argument session at the Court.  In the category of “Will’s new obsession” is Adoptive Couple v. Baby Girl, an Indian law/family law case that may provoke the Justices to talk about colorblindness and Indian law for the first time in a while.  I’m embarrassed to say I hadn’t been following the case closely until I noticed that it was being argued by Lisa Blatt, Paul Clement, Charles Rothfeld, and Ed Kneedler, and realized that something big must be afoot!

The session also features a Rothfeld-Blatt rematch in Tarrant Regional Water District v. Herrman, and some biggish criminal cases like Kebodeaux and Salinas.  Then there’s the category of “first time arguments by great young lawyers,” like my former Robbins Russell colleague Dan Lerman, my former SCOTUS colleague Rob Yablon, and the famous John Bash.  The audio releases for the next two weeks are going to be quite a treat!

Robert Cover and Leon Kendall

My first reaction upon reading this was, well, that seems obviously right. A trial judge in the Virgin Islands found prosecutors guilty of misconduct. When the Virgin Islands Supreme Court reversed him, he recused himself, because he recognized that he was bound by higher authority but also felt that his conscience wouldn’t allow him to participate in what he saw as a grave injustice. Affronted, the Virgin Islands Supreme Court held him in criminal contempt. Now the Third Circuit has reversed, ruling that the trial judge’s First Amendment rights had been violated.

But the more I think about it, the less I am convinced that this is right. Leave aside the oddity of having the Third Circuit review the decisions of the Virgin Islands Supreme Court (a result that has since been eliminated by statute). I think it might be a mistake to think of judges as having First Amendment rights in their judicial rulings. They are government agents, not private actors– they speak from the bench with authority because they have the power to rule over others, not because they are thought to be wise or because they have the right to mouth off. I think this is the point Robert Cover was making when he said, “The judges deal pain and death.” (Violence and the Word, 95 Yale L.J. 1601, 1609.)

Between Ysursa v. Pocatello‘s holding that inferior government units don’t have free speech interests against their superiors, and Garcetti v. Ceballos‘s holding that government employees don’t have free speech rights in their on-the-job speech, the First Amendment ruling here seems counterintuitive at best. I can imagine a defense of lower-court defiance derived from the separation of powers or the constitutional oath, but that’s not the path the Third Circuit followed and it’s not clear to me how those principles apply in the Virgin Islands. In any case, the Third Circuit’s opinion is such a mess of confusion and overlong footnotes that it’s conveniently hard to follow.

Constitutional doctrine aside, the Third Circuit’s ruling does not strike me as a blow for justice either. In this particular case the trial judge may be ruling on the side of the powerless, but First Amendment rights are content-neutral, so the same idea would presumably apply to judges who refused to institute clemency orders or desegregation decrees.

But maybe we should at least be impressed by the trial judge’s bravery in standing up against prosecutorial abuse. I hate to spend all of my time on this blog as a contrarian, but I am skeptical of that too. Is this really the only case in which the trial judge has been forced to do something unjust by his superiors? I highly doubt it. By making such a big fuss out of this case, the judge implicitly ratifies the many other cases in which he didn’t. And by engaging in such a self-indulgent display of his own personal purity, he sidesteps the more important questions about how to reconcile one’s obligations to the system one has decided to work for with one’s ethical obligations as a human being. I think Robert Cover would agree with me about that one too.