10/1/2011

By Colum Weiden, J.D. Candidate 2013

You know the setting. You’ve seen it before. From television dramas to box office mega-hits, silver screened scenes of criminal interrogations by police officers have become a favored vignette for pop culture’s modern interpretation of the recurring conflict between perpetrator and protector, between individual rights and societal repercussions. Yet far removed from Hollywood’s broad creative license and collective imagination lie the requirements of the Fifth Amendment, Miranda’s prohibition against self-incrimination, law enforcement’s dogged quest for the most persuasive interrogation techniques, and an Ohio man accused of murder facing the death penalty.

As the Supreme Court turns the calendar from summer to fall and the Justices convene to assemble the Court’s docket for the upcoming term, one appeal confronting the Court isBobby v. Dixon, a Sixth Circuit habeas corpus case requiring the interpretation of Fifth Amendment Miranda jurisprudence.[1] The central issue behind the Sixth Circuit’s habeas review of the Ohio Supreme Court’s decision and the writ for certiorari is whether a suspect’s confession at a second stage of interrogation without Miranda warnings after invoking the Fifth Amendment right to remain silent at an earlier interrogation was voluntary and admissible.[2] The Supreme Court should deny this petition for a writ of certiorari and let the Sixth Circuit opinion stand, as it is a clear appellate opinion consistently interpreting recent Miranda jurisprudence.

Facts of Dixon

On November 4, 1993, Archie Dixon, a suspect in a brutal murder case in Toledo, Ohio, was interrogated at the police station and expressly invoked his Fifth Amendment right to remain silent in the absence of counsel.[3]Five days later, after his formal arrest, Dixon was interrogated twice more. Prior to the second interrogation session, the interrogating detectives chose to not administer the Miranda warnings because they “believed that Dixon would invoke his right to counsel if he were issued Miranda warnings” and defeat the purpose of questioning.[4] In addition, the detectives urged Dixon to confess, saying: “Now is the time to say so [confess], because if Hoffer [an additional suspect] cuts a deal it’s kind of like a bus is leaving. The first one that gets on is the only one that gets on.”[5] First, Dixon confessed to a closely related forgery charge and four hours later, after being read his Miranda rights, ended up confessing to the murder.[6]

Dixon, Winding Its Way Through the Judicial System

The Ohio trial court suppressed Dixon’s incriminating statements and found the police conduct to be a bad faith attempt to contravene Miranda.[7] The State made an interlocutory appeal on the suppression issue and the Court of Appeals reversed, finding that the confession was admissible despite the violation of Miranda.[8] The Ohio Supreme Court agreed with the Appeals Court on the grounds that there was “no nexus” between the forgery confession at the unwarned second interrogation session and the murder confession at the warned third interrogation session.[9]

The Ohio Supreme Court relied heavily upon a 1985 Supreme Court case called Oregon v. Elstad, in which the Supreme Court held that if a suspect’s statement obtained in violation of Miranda is nonetheless voluntary, then the Fifth Amendment does not require the suppression of a subsequent confession made after the suspect has been given a proper recitation of his or her rights.[10] Armed with Elstad, the Ohio Supreme Court found that Dixon’s confession to forgery at the second, unwarned interrogation session was completely voluntary, and substantially unrelated to his murder confession at the third, warned interrogation session. [11] Dixon filed for a federal writ of habeas corpus and the district court agreed with the Ohio Supreme Court’s interpretation ofElstad.

However, the Sixth Circuit reversed the denial of the petition for the writ of habeas corpus, vehemently disagreeing with Ohio Supreme Court’s interpretation of Elstad. The Sixth Circuit found that the Ohio Supreme Court unreasonably applied Elstad by construing the Supreme Court’s holding too broadly.[12] In Elstad, the suspect confessed to the crime immediately upon the arrival of police at his home for questioning and prior to aMiranda warning; the suspect then followed this uncoerced confession with a written confession after receiving a full Miranda recitation at the stationhouse.[13] The Elstad holding is narrow in scope because it only reinforces the principle that the Fifth Amendment bars compelled testimony, and that while failure to administer Mirandarights creates a presumption of compulsion, otherwise voluntary confessions do not automatically demand suppression.[14]

The Sixth Circuit’s decision not only recognized the Ohio Supreme Court’s erroneously broad reading of Elstad, but it also repudiated the Ohio Supreme Court’s decision in light of recent Supreme Court developments in the realm of Fifth Amendment jurisprudence. In the 2007 case of Missouri v. Siebert, the Supreme Court, in a plurality opinion written by Justice Souter, held that the “question-first” police interrogation strategy—which intentionally withholds Miranda warnings until after a confession has been successfully obtained—violated the constitutional protections afforded by Miranda.[15] Justice Souter distinguished Elstad due to the presence of a concerted police strategy designed to circumvent the safeguards of Miranda to obtain a confession in Siebert.[16] In addition, Justice Souter argued that the threshold inquiry in question-first cases such as Siebert andDixon is whether the delayed Miranda warnings could function effectively to give the suspect a choice between speaking and silence.[17] The answer, to Justice Souter and proponents of question-first, was a clear “no.”[18]

In light of Siebert, the Sixth Circuit found ample reason to reject the Ohio Supreme Court’s decision and grant Dixon’s petition for writ of habeas corpus.[19] The Supreme Court should not disturb this instructive interpretation of Elstad and Siebert. While Dixon’s case will proceed with further litigation, real questions remain regarding the prevalent use of “question-first” interrogation techniques by the police. The Supreme Court condemned this practice in Siebert and recently struck down a North Carolina Supreme Court case which upheld a juvenile’s conviction after being interrogated via question-first in school without the presence of parents or counsel.[20] While it appears that the “question-first, warn later” strategy will die a slow death in the wake ofSiebert and the Sixth Circuit’s ruling, new flexible and creative police interrogation techniques will surely pop up. In light of this eventuality, courts adjudicating Fifth Amendment Miranda cases would do well to apply Justice Souter’s Siebert analysis with similar dexterity.