Burlington Free Press

The right to remain silent

Published: Sunday, December 3, 2006
By Adam Silverman
Free Press Staff Writer

The judge glanced down at a document describing a proposed plea bargain and scowled.

The arrangement Michael Kupersmith was considering allowed a woman accused of attempted second-degree murder to admit a reduced charge of aggravated assault and serve less than two years in prison -- a term 10 times shorter than the sentence for the accusation she faced originally.

Kupersmith, his brow furrowed, grumbled he didn't like the deal at all. The prosecutor encouraged him to sign off anyway, in large part because police violated the woman's civil rights during an interrogation and the state stood little chance of being able to use her confession against her at trial.

That's when the judge's anger boiled over.

As the Vermont State Police detective who conducted the interrogation sat stiffly in the Burlington courtroom, Kupersmith lambasted police interview techniques. Law-enforcement officers seem to violate suspects' rights willingly and repeatedly by ignoring the precept of reciting a Miranda warning, the judge said.

"It's very disturbing that the police appear to intentionally violate the Miranda case, and this happens continuously," Kupersmith said in Vermont District Court late last month. "One of these days it's going to fly right back in our faces, and it's going to cause a dismissal of the case."

This court proceeding was one of at least three instances this fall -- and four this year -- in which attorneys for people accused of murder or attempted murder have challenged interrogations as unconstitutional and sought to bar prosecutors from using confessions the defense claimed police obtained illegally. The defense won three of those challenges, resulting in either a suppressed statement or a plea bargain on reduced charges.

A trend?

At the center of those four cases was Burlington defense lawyer Bob Katims. Raising the issue of Miranda violations is not unique in criminal proceedings -- attempting to suppress incriminating statements is a well-worn page in defense lawyers' playbooks -- but Katims has proved especially adept at challenging confessions in high-profile cases.

Echoing Kupersmith, Katims said the recent incidents are a beacon that shines light on a larger problem.
"There's a trend -- and I think it's a troublesome trend -- of police pushing the envelope," Katims said. "Miranda is a bright-line test, and police know where that line is, and they're pushing it."

Police and prosecutors contend that the federal Miranda rule, its interpretation by Vermont courts and circumstances that trigger it, such as a person's being in police custody, are more subjective than defense lawyers claim.

Police officers are trained to respect the rights of suspects, and there's no effort to circumvent protections intentionally, law-enforcement agents said.

"We understand Miranda and are very mindful of Miranda any time we operate within a case," said Col. James Baker, director of the Vermont State Police.

Added Mike Schirling, a deputy chief of the Burlington Police Department: "It's a critical right for defendants. It's something we take very seriously. Our job is as much to protect innocent parties from suspicion as to incriminate guilty parties, and Miranda is a critical part of that."

Prosecutor Justin Jiron, a deputy Chittenden County state's attorney and the lawyer who handled the case that provoked Kupersmith's ire, said he sees no systemic problem. The case, involving suspect Emily Linso, was the first time he'd dealt with a serious suppression issue.

"It's almost a standard motion to raise by a defendant if you've got any kind of grounds for it," Jiron said. "That doesn't mean there's a real good chance, but if you win, there's a real advantage."

Police sometimes take calculated risks in blurring Miranda's starting line, the prosecutor said.

"If you stop the interrogation, you're not going to get the information," Jiron said. "But if you continue, you might lose it ... you might not."

Miranda: A brief history

The Miranda warning took its name from an Arizona man, Ernesto Miranda, accused -- and later convicted -- of rape whose illegal 1963 interrogation led to the U.S. Supreme Court's precedent-setting decision requiring police to inform suspects of their rights.

Miranda's roots grow from a desire to prevent police from using force or extreme coercion to elicit a confession.

Such a warning is paramount in the criminal-justice system because police have inherent advantages of power, authority and legal knowledge over many people brought in for questioning, Vermont Law School professor Michael Mello said.

"There's a tremendous inherent imbalance of power, and there has to be a way of empowering citizens to have some control over what happens to them," Mello said.

The professor said he's seen no evidence to suggest a "pervasive problem" of Miranda violations in Vermont, but he added that law-enforcement adherence fluctuates.

"How ethical police departments are with respect to Miranda varies from station house to station house," Mello said.

Perhaps not surprisingly, defense lawyers and police disagree on whether suspects should waive their Miranda rights.

Mello, a former defense lawyer, and Katims said suspects always should decline questioning at first and ask for an attorney.

"There's no way it's ever going to help you," Mello said, referring to a waiver of Miranda rights. "If you're guilty, you want to get lawyered up. If you're innocent, it's in your interest to get lawyered up even more."

Katims said officers typically approach interviews with a goal of obtaining a confession, and that can lead to violations.

"Many police officers are doing it for what they believe are noble purposes," Katims said. "They believe their job is to try to get statements from people, and they believe they're more likely to get statements if they don't read people their Miranda rights. And they may be right, but that's the whole purpose of Miranda: to advise people of their rights."

Schirling said he understands why defense lawyers advise silence, but he believes talking openly can lead to exoneration.

"It's very difficult to know the circumstances around what happened without a statement from the person accused," he said. "There are lots of times we receive a statement from someone that leads to not being charged with a crime.

"If I were the suspect in a crime -- and I know the system inside and out -- I would make a statement," Schirling continued.

A harsh lesson -- throwing out a case -- might need to be taught before law enforcement fully understands the consequences of skirting or ignoring a suspect's civil rights and Miranda's basic tenets, Kupersmith suggested.

"Not only do the confessions go out, but it can lead to the suppression of evidence that the confession leads the police to," the judge said in court. "It's unfortunate that in this country there are people who believe that the rules do not apply to the executive branch, and they do; and the courts are here to enforce that.

"At least," he continued, his voice rising, "these courts are."

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