Consider Miranda v. Arizona. You know, the case that says:
- When you're in custody, and
- Police want to interrogate you,
- They have to read you your rights, and
- You have to understand your rights, and
- You have to voluntarily agree to give them up, and
- If you then say something incriminating,
- It can be used against you in court. But
- Only if the government can satisfy a "heavy burden" of
- Demonstrating by a preponderance of the evidence steps 3, 4, and 5.
Or, of course, not.
Because "custody" isn't what you or anyone else thinks it is. According to the courts, a person is in custody when a reasonable person would believe himself free to leave. When you've been stopped for speeding and the cop is asking if you've had much to drink? Nope, not custody. When the cops knock on your door and ask to speak with you? Nope, not custody. When they drive you down to the police station and put you in a little room with no windows and a door that a burly guy with a badge and gun is blocking but haven't actually told you you're under arrest? Nope, not custody. As Scott Greenfield said yesterday in a slightly different context, judges know all that's nonsense, but it's what they choose to believe when they are in the courtroom being judges rather than out on the street being asked questions by a cop.
And then there's that whole understand your rights thing. As if it matters. Did you ask for an explanation? No? Then you must have understood. Oh, wait, you did ask for an explanation? Did the cops offer one? Then you clearly understood.
Did you voluntarily give up those rights? The cops lied and told me that they found my fingerprints on the gun when they didn't; so I gave up my rights based on false information; that's not voluntary. Wrongo. The cops promised me that I wouldn't be charged , you know, and said that I'd help myself if I told them. So I did. That can't be voluntary. Wrongo. The cops threatened to beat the shit out of me. Maybe. Though it's your word against theirs. And they're likely more credible to the court than you are. And they only have a "heavy burden of proving that your waiver was voluntary, so you have to prove it wasn't.
But you said, "I should speak to a lawyer." And they kept after me. Ah, but you didn't say you refused answer questions until you spoke to a lawyer. It's magic words. You have to say the right ones. And nobody will tell you what they are. (Norm Pattis did take a shot at it this morning.)
And, by the way, how many accused criminals understand, "Having had these rights explained to you, do you waive your rights and agree to speak with us?" as a question (if it happens to be asked) that amounts to "You gonna give it all up and say something now so we can hang you with it?"
So the truth is that the government's "heavy burden" of proving that any custodial statement was made only after a knowing and voluntary waiver of the rights to silence and counsel is, and pretty much has been for years, just so much bullshit.
And now it's official. Yesterday, in Berghuis v. Thompkins the Supreme Court spoke and (albeit by a 5-4 vote) explained that the burden on the government is, indeed, heavy. And that in order to prove that the defendant understood his rights and chose not to waive them, the government must . . . . Well, actually nothing. The government carries it's heavy burden as long as the defendant doesn't prove that he said, "I will not speak to you."
While the Court continues to insist that the burden of proof is on the government (and is "heavy") the Court explained that the government wins as long as the defendant doesn't prove that the government loses. And the only proof that counts is that the defendant spoke magic words - while in custody.
But I don't really want to talk about Thompkins. Read Pattis and Horowitz and Greenfield and Sarah if you want to know what we all think about it.
I want to talk about innocence, and that takes me back to where I began.
Once you've been found guilty, the rules change.See, up to the moment when the jury says the defendant is guilty, up to that moment, the prosecution has the burden of proving guilt beyond a reasonable doubt. That's true (at least in theory) in federal court, in state courts, in municipal courts, in military courts martial, in pretty much everywhere. Oh, the rules of evidence vary a bit from place to place, and procedures change, but the fundamental rule - they gotta prove it - that's core. (Once again, I'm talking theory here.)
But once the jury (or the judge where there is no jury) says "Guilty," that all changes. That rule, the presumption of innocence, the "They-gotta-prove-it," disappears. From that moment on, even in theory, the burden is on the defendant to show something else. And that burden is especially high if the something is innocence.
Take Kevin Keith. He's on death row in Ohio. He was convicted of shooting six people, three fatally, in revenge for a member of the family being a police informant in a drug investigation. As happens, the case was appealed and the Ohio Supreme Court affirmed the conviction and death sentence. The state's case was, frankly, shaky to begin with, though it was enough to convince the jury. But as it happens, there's a wealth of evidence, most of which the state knew and concealed at the time of trial, indicating that (1) Keith didn't do it, and (2) Rodney Melton did.
Here's a sample. Melton apparently was hired to do the killing. Melton knew information only the killer could have known. At least one survivor explicitly and insistently said that Keith wasn't the killer. The state presented perjured testimony, asserting that a nurse who did not exist told police that one of the victims named the killer as Kevin. (The actual nurse, one who did and does exist, says she was never told any name.) And he had a substantial alibi.
OK, as I routinely say at this point, I don't know what happened that evening in February 1994. What I know is that if it heard all that evidence, it's remarkably unlikely a jury would have found Keith guilty; and it's even less likely he would have been sentenced to die.
But now he's got to prove his innocence, and the courts have been, shall we say, unwilling to let him do that. Gee, the courts said, there was enough evidence at trial to convict him, so there's no need to look at evidence that shows he's innocent. (I'm paraphrasing, but not making it up.) So Keith's case wandered through the Ohio courts. Yesterday, the Supreme Court refused to hear his appeal.
He's scheduled to be executed September 15.
Keith, at least, is still in the system.
Kamau Marcharia's been out of it for nearly 40 years. Except he's not.
Back in 1964, when he was 19 (or maybe 16, 17, or 18), and living in New Jersey, Marcharia (whose name back then was Robert Lewis) was convicted of rape, kidnapping, assault, and maybe a couple of other charges. Here, taken from a 1973 law review article on the case by attorney and crime fiction novelist Andrew Vachss, is a summary.
Two young people were the victims of a connected series of particularly vicious and senseless crimes. Indictments were returned against seven defendants, two females and five males. Both females, and two of the males were apprehended at the scene of the crime. Another male was arrested nearby, allegedly in act of escape. The remaining two defendants, Esaw Mitchell and Robert Lewis, were brought to trial seven months later. Their cases were not severed. The male victim of the crimes placed Lewis at the original scene based on some highly dubious observatory techniques. The female victim of the crimes placed Lewis at the original scene, but not at the scene of the kidnapping and the rape which followed. One of the previouslyconvicted rapists placed Lewis at the original scene and also testified that Lewis left prior to the kidnapping and rape. One of the female defendants did place Lewis at the scene of the kidnapping and rape . . . .
The State did not even contend that Lewis raped the victim, but charged that he could be convicted as an "aider and abettor" of the crimes.
Robert Lewis was convicted of atrocious assault on the male victim, of the kidnapping and rape of the female victim, and carrying a concealed weapon (found in the car of the other defendants when Lewis was not present).If you look at that and go, "Huh?", you're not alone.
In fact, Marcharia was released in 1973, placed on parole with no conditions. He spent 35 years as a community organizer. Since 1998 he's had a seat on the County Council in Fairfield County, South Carolina. He is, by most accounts, a respected, responsible, honored member of the community. (Disclosure, I learned about Marcharia from an old friend of mine who's a friend of his.)
But see, there's that 1964 conviction. And the rape thing. And South Carolina's sex offender registration and notification law, which is the sort of thing nobody'd even thought of in 1964, is being used against him. And because he's running for the state legislature, and because he's successful but not part of the establishment, there are serious efforts underway to undermine him. And to pass laws making him ineligible for public office.
The remedy? Why, prove he's innocent. Or get him an unconditional pardon. Or something. Which has proved, for some years now, a daunting task. Though if the case were tried today, with what we know, he'd probably be acquitted. Which is, once again, the point.
And of course there's Cameron Todd Willingham. If Rick Perry and John Bradley get their was, it's unlikely we'll ever really get to the bottom of his case.
And how many others?
But they've been convicted. That means the burden's officially on them. And the government sets it up so that they pretty much can't meet it.
There's a kind of logic at work here. It's probably fair that once you've been convicted you don't get to keep making the government prove its case again and again. You want to undo it, you have to show a reason. I don't have a problem with that.
My problem is that the system (state, federal, whatever) is geared to ensure that your reasons won't get heard.
It's not enough to be innocent. You have to have an angle. And some resources. And a hell of a lot of luck.
Too few do.
Ask Kevin Keith (while you still can). Ask Kamau Marcharia. I'd tell you to ask Todd Willingham, but it's too late for that.
Read more about Kevin Keith's case here.
Read more about Kamau Marcharia here and here.