Maryland v. Shatzer – Oral Argument – October 05, 2009

Media for Maryland v. Shatzer

Audio Transcription for Opinion Announcement – February 24, 2010 in Maryland v. Shatzer

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John G. Roberts, Jr.:

We will hear argument first this term in Case 08-680, Maryland v. Shatzer.

General Gansler.

Douglas F. Gansler:

Mr. Chief Justice and may it please the Court:

This case is here from the Maryland Court of Appeals.

In that case, the court of appeals suppressed a statement that was given by Respondent following what the trial court found to be a valid waiver of his Miranda rights and following a free and voluntary confession.

The reason why the court did so is because, two years and seven months prior to that, the defendant was in a different custodial interrogation and at that time invoked his right to counsel.

We ask that this Court reverse the Maryland Court of Appeals.

It is our position that a break in custody from custodial interrogation should be the bright line that this Court adopts in order to end the irrebuttable presumption that this Court created in the Edwards case.

John G. Roberts, Jr.:

Without regard to the time?

A break in custody of one day, do you think that should be enough?

Douglas F. Gansler:

Your Honor, we do think one day should be enough, as long as it is not in the pretrial detention category.

Obviously, the three cases that have come before this Court, Edwards, Minnick and, Roberson, all — two of them were three days, and one of them was one day, but those defendants were in the pretrial detention status.

So if in fact a defendant is brought in, questioned, and then released back to his or her daily routine, and away from the isolation of the custodial interrogation, we feel that that should be the bright line for a break in custody.

John G. Roberts, Jr.:

So what if it’s repeatedly done?

You know, you — you bring him in, you give him his Miranda rights.

You let him go.

You bring him in, give him his Miranda rights.

He says, I don’t want to talk.

You know, just sort of catch and release, until he finally breaks down and says, All right, I’ll talk.

Douglas F. Gansler:

There is parade of horribles of catch and release and Your Honor just went through one of them, and there are obviously a number of hypotheticals that one could posit.

We would suggest that the break of custody would be the end of the Edwards irrebuttable presumption.

However, there are still three responses to that.

The first would be the defendant could still say that his or her Miranda rights were not given voluntarily and willfully.

Secondly, the due process jurisprudence that this Court had prior to Miranda still is in existence, and therefore the defendant could argue that that confession was given in an overborne way, that his will was overborne.

But finally and I think most relevant, because this is sort of the other side of this case, is that there has been — since 1982 eight Federal circuits and over 20 States have had the break of custody rule in effect.

And in fact this Court in the McNeil case, albeit in dicta and parenthetically, assumed a break in custody as the rule.

There has not been one published opinion, at least that we could find, that has this — that has that scenario–

Anthony M. Kennedy:

Is the rationale for the break in custody that there is a likelihood of non-coercion?

Is that the reason that you offer for the rule?

Douglas F. Gansler:

–Your Honor, it goes to — yes, this Court has said, most recently again in Montejo, that the reason for Edwards is that we want to prevent badgering.

Anthony M. Kennedy:

All right.

But this person was in custody in the sense he was in prison and the brief said, oh, he was released to the general population.

But the possibilities for coercion or pressure are very substantial in the prison.

The warden comes in and says: Oh, your cell doesn’t have a window.

I mine, there’s countless way in which a prisoner in the general prison population would consider that he is — that there has been no break in custody.

I think that’s a very difficult rule that you are proposing.

Douglas F. Gansler:

Well, the courts — the lower courts have shown that there is a difference between police interrogational custody and correctional custody.

What we are suggesting is once the person — in our case, for example, in the second interview, the defendant was in what’s called — what’s called a maintenance room in the room, with a metal table and the two chairs.

It was clearly an interrogation context.

When that person is released from that, some people are habitual criminals and they’re put back into the general population amongst — that’s where they live for that time period.

Other people go home.

But the break in custody for Edwards purposes ought to end at the end of the interrogation.

Now, could there be an interrogational situation while the person’s in prison?

Absolutely.

You can envision a correctional officer coming to the cafeteria when there’s, the public is there, the public being other inmates, and that would not be deemed to be an interrogation atmosphere.

If, however, they cleared the cafeteria and had officers standing by the doors and blocking the doors and saying no one’s allowed to come in here, that could then become interrogation custody.

And this Court and other courts, the courts all the time, have to decide in the Edwards context whether or not the defendant was in custody when the statement was given.

Ruth Bader Ginsburg:

But if the defendant goes home, he can contact a lawyer.

In prison he can’t do that.

So, if the whole idea is to protect his right to counsel, then it makes a big difference whether he’s at home or in prison.

Douglas F. Gansler:

Your Honor — well, first of all, the defendant while they’re in prison can contact a lawyer in some circumstances.

For example, during the two years and seven months between these two interrogations he could have written, he could have called.

But let’s say that that was unavailable to that particular defendant.

It’s our position that what Edwards does, Miranda, Edwards, Roberson, Minnick, it provides the opportunity to consult counsel.

But the — what we are talking about here is the custodial interrogation situation.

In other words, the police don’t have to get somebody a lawyer.

Whether or not somebody has the opportunity to consult a lawyer or not, as long as they are provided with their Miranda rights, the Miranda rights themselves are the protection that the defendant has.

We know, for example, in this case–

John Paul Stevens:

Do we know exactly what the Miranda warning in this case was?

Douglas F. Gansler:

–The Miranda warnings in this case the judge, the trial judge, found exactly comported with the Miranda warning–

John Paul Stevens:

But what did it tell the person in prison he could do about a lawyer?

Douglas F. Gansler:

–That he had the right to a lawyer and–

John Paul Stevens:

Did it tell him how he could get a lawyer?

Douglas F. Gansler:

–It didn’t–

John Paul Stevens:

If you’re in prison and they give you the Miranda warnings, what would that tell the average prisoner with respect to access to a lawyer?

Douglas F. Gansler:

–It would tell them they have a right to counsel and if they couldn’t get one one would be provided to them.

John Paul Stevens:

And would they have provided a lawyer to him right away if they had — he had asked for it?

Douglas F. Gansler:

Well, had he asked for one, which he did the first time, what they did there–

John Paul Stevens:

When he is in prison, I mean.

Douglas F. Gansler:

–Yes.

It’s unclear from the record whether they would have or not.

That would be conjecture.

What they do what the bright line of Edwards says is they have to stop asking questions.

John Paul Stevens:

Well, I understand that.

Douglas F. Gansler:

Right.

John Paul Stevens:

I’m just wondering if he thinks, well, I’d like a lawyer, what can he do?

Douglas F. Gansler:

He could — during those two years and seven months in this case, he could have tried to get a lawyer through — either his own lawyer in the case.

John Paul Stevens:

Right on the spot, when he is in the room there and they give him the Miranda warnings and he says, that sounds like a good idea, what would happen?

Douglas F. Gansler:

He would not be given a lawyer by the police at that time.

There’s not a lawyer sort of waiting outside.

John Paul Stevens:

So the Miranda warning is a little misleading, isn’t it, in that context?

Douglas F. Gansler:

Well, I would argue that it is not, because he is given the right.

He said, if you want a lawyer before talking to us, that’s fine; you have to invoke your right to counsel.

He invokes the right to counsel, they stop talking to him.

What he can–

John Paul Stevens:

Do they also say it will be provided to you?

Douglas F. Gansler:

–Yes, but he can — there’s a number of–

John Paul Stevens:

And it’s not going to be provided to him.

Douglas F. Gansler:

–Well, it would be, Your Honor, if, for example, the lawyer in his underlying case came, he could say, look, I need a lawyer, they’re asking me questions about this other case; can you represent me on that case?

Sonia Sotomayor:

What if he asks for a lawyer.

Sonia Sotomayor:

He said: I don’t want to talk to you without a lawyer, correct?

Douglas F. Gansler:

In 2003, yes.

Sonia Sotomayor:

And the State doesn’t provide him with a lawyer, correct?

Douglas F. Gansler:

That’s correct.

Sonia Sotomayor:

All right.

So what gives him an understanding that one will be provided the next time he’s questioned?

Douglas F. Gansler:

Well, what he does understand from the first time he is questioned — and he understood the rights because he himself invoked that right to counsel.

So he knew that he could say “I want a lawyer”, and he did.

What he understands is the police will stop questioning him at that point.

There is no, as far as I can tell from the jurisprudence and this Court’s holdings, there is no obligation for the police to actually go out, nor would I suggest that you want to have that rule, to go out and actually ascertain, get a lawyer.

Sonia Sotomayor:

No, because we tell the police they have to stop.

Douglas F. Gansler:

Right.

Sonia Sotomayor:

So presumably they shouldn’t re-engage until the lawyer is present, correct?

That’s what Edwards tells them not to do.

Douglas F. Gansler:

Well, Edwards tells them to stop questioning.

Minnick says that if they have the opportunity to consult with a lawyer they still can’t start without the lawyer being there.

But that is a different analysis than this because had they asked him on the second time, after they read his rights and he said, I want a lawyer, they couldn’t keep going until there was a lawyer present.

He chose during that two years and seven months when he had a mental reset that he didn’t need a lawyer.

Sonia Sotomayor:

Well, this is a different part of your argument.

This is not the custody or break in custody.

This is the time and the fact that such a prolonged period of time has minimized any coercive effect, correct?

Douglas F. Gansler:

No, Your Honor.

We would still argue that — in this case, obviously both exist.

The Court could fashion a bright line rule.

This Court has shown an interest in bright line rules in this area.

And this Court could adopt a bright line rule of a particular time period.

We are arguing the better bright line rule would be a break in custody.

Obviously a break in custody plus–

Sonia Sotomayor:

Catch and release then no longer — catch and release is unimportant to you?

There is no meaning to Edwards in that situation, because every prisoner, because he is a captive, is questioned in a place and then told to go back to his room.

Sonia Sotomayor:

His room happens to be a locked cell.

So he doesn’t have the freedom to leave and he doesn’t have the freedom necessarily to make calls to discuss his choice with anyone.

Douglas F. Gansler:

–Well, in this case–

Sonia Sotomayor:

This is a very different situation then someone who is free to go home.

Douglas F. Gansler:

–I’m not sure — the question sort of posits two different scenarios.

One scenario is when the defendant is arrested, they are questioned and then they are put into a cell.

That is a different scenario.

That would be a pretrial detention analysis, which in Minnick, Roberson and Edwards extended up to three days, which we would argue is sort of the end of the time line right as it exists today.

The different scenario, which is in this case, is, yes, he is locked up in the general population, he comes in for the interrogation, he is then released back to his daily routine.

And at that point our view is that the rebuttable presumption of Edwards ends.

And you know–

Sonia Sotomayor:

Because he is not in custody, when he is in jail.

Douglas F. Gansler:

–He is not–

Sonia Sotomayor:

When he can’t leave, can’t necessarily use a phone and can’t confer with anyone he’s no longer in custody.

Douglas F. Gansler:

He is in custody in the sense that he is not free to leave the jail, but as in the Miranda cases, he can still be questioned.

He is not in correctional custody, and he is certainly not under interrogation.

John G. Roberts, Jr.:

You mean he is not — I assume you mean he is not free to leave the prison.

Douglas F. Gansler:

Right.

John G. Roberts, Jr.:

As I understand the terms, pehaps it’s inaccurate, jail is where you are when they are still questioning you and figuring out what’s going to happen to you.

Your argument is when he is sent to prison, he is no longer in custody for Edwards purposes.

Douglas F. Gansler:

That’s exactly right.

John Paul Stevens:

Was he free to leave the interrogation room?

Douglas F. Gansler:

I’m sorry your honor.

John Paul Stevens:

Was he free to leave the interrogation room?

Douglas F. Gansler:

No, and we are not — we — we accept that he was in police interrogational status both in 2003 and in 2006 when he was read his Miranda rights.

John Paul Stevens:

I have to say that the breaking custody, I think, has many more problems than time, but you don’t seem to place much emphasis on time.

True, we have to reach out and find some arbitrary number, but after all, Edwards is an arbitrary rule.

Douglas F. Gansler:

–The reason why I think break in custody is not as problematic, and this goes to the Justice’s earlier question as well, is because literally the year after Edwards, 1982, was the first of the eight Federal circuits that found the break in custody rule.

And there is no — they have been able to work with this.

Sonia Sotomayor:

–What’s the smallest–

Ruth Bader Ginsburg:

In those cases, was there a considerable interval between–

Douglas F. Gansler:

Not–

Ruth Bader Ginsburg:

–It was just the break in custody?

A week–

Douglas F. Gansler:

–Yes, Your Honor.

Ruth Bader Ginsburg:

–was enough?

Douglas F. Gansler:

Yes, Your Honor.

Obviously, in different cases there’s different lengths of time.

But if — in Justice Kennedy’s question, if we were going to adopt a time limit, I — we would suggest, like, for example, a seven-day time limit.

The Court suggests that is arbitrary.

The reason why I would pick seven days is, right now the rule is three days, and you cannot envision the situation, at least I can’t, where somebody would be held without being presented for more than three or four days, so–

Antonin Scalia:

Why do you say the rule is three days?

What rule is that?

Douglas F. Gansler:

–Because right now, if you look at Edwards being the next day, Minnick and Roberson being three days, that that is the only cases from this Court which says when the Edwards presumption goes.

So we don’t have — whether — what Respondent’s rule would do is, in our view, extend it right now from the three-day limit — now, many have suggested that’s in perpetuity.

Antonin Scalia:

Yeah, but you — you are not arguing for a seven-day limit no matter what, even if he is held in jail, are you?

Douglas F. Gansler:

If he is held in jail on his own case — see, the most difficult scenario, in our view, is one that we don’t think the Court needs to reach here, which is actually the Green case from the District of Columbia, where he is held on his own case in a pretrial detention–

Antonin Scalia:

Right.

Douglas F. Gansler:

–scenario, because then he does have different incentives to cooperate or not cooperate with the police and then the question would be, well, does that — is the break of custody there at conviction or at sentencing?

And we can quibble about that.

We don’t need to get to that in this case.

But if he is held in jail on another case, that’s where he lives.

He is there for 10, 15, 20 years, and he is brought in, away from the life that he is accustomed to, and put there with different officers in a metal room–

Ruth Bader Ginsburg:

Suppose it’s the same officer.

Does — you said in your brief and just now it was a different officer.

Suppose it was the same officer?

Douglas F. Gansler:

–Well, I actually think for — in this case, with Detective Blankenship and Detective Hoover, the Court should assume it’s one and the same.

In fact, Roberson said just that, that within the same department — but it is instructive in this sense.

In Respondent’s — if Respondent’s rule were to be adopted, there is no way that one police department can know what happened in front of another police department, in front of another police department, while that person is being detained–

Ruth Bader Ginsburg:

Well, you could limit it to the same police department, the same investigation, so you are not covering the waterfront of every interrogation about any crime, any place.

Douglas F. Gansler:

–Except for right now, we live in a world of Roberson, where we do.

So in other words, if a defendant invokes in California for a shoplifting case and then is transported to Iowa and then to Maryland, the Maryland authorities have no idea whether he invoked in one of the other two.

What is worse is right now, since we don’t have a break in custody rule, this defendant, Shatzer himself, could have invoked counsel 20, 25 years ago in some other State.

We have no way of knowing that.

Sonia Sotomayor:

–Counsel, the hypothetical you are positing is an investigation about unrelated crimes.

We are talking about, and I think it’s what Justice Ginsburg was pointing to, it was an invocation on this crime, on this criminal activity, not one in another State or another police department.

And so that’s a substantially different question.

Douglas F. Gansler:

It is, though he is not being held on — on that crime.

He is being held on a completely unrelated sexual abuse case.

I mean, it’s related in the sense it’s the same crime, but it’s a different case.

John G. Roberts, Jr.:

So I thought Roberson told us it’s not a different question, that it’s the same question.

Roberson did not draw a distinction between what crime he was being questioned on the second time.

Douglas F. Gansler:

That’s exactly right, and that’s what creates the problem that if defendant — if we don’t have a break in custody rule, a defendant who invokes anywhere at any time is forever immune from being questioned by the police, regardless of what would be a sort of a wholly irrational view and an absurd result, which I think is where we live right now.

And it becomes, obviously, greater in a world where we have DNA.

Obviously, there was no DNA in 1981, but with these cold cases coming back 15, 20, 25 years later–

John Paul Stevens:

Well, I wonder if you’re right about that premise.

Supposing the prison had a rule that the inmate does not have to see visitors and they say that: Somebody here wants to talk to you.

And he says: I don’t want to talk to him.

And if he refused to talk, then if he did talk, it would be voluntary, rather than the situation you described.

Do I make myself clear?

Douglas F. Gansler:

–Yes, Your Honor, and I don’t know sort of what the protocol of each of the prisons would be, but I would think that if a prisoner did not want to speak with the officers that came to see him about a crime, the prisoner would be able to say so and has.

And this defendant has — has actually been able to invoke that himself.

If there’s–

Sonia Sotomayor:

What is the shortest time period that any circuit court has found a break in custody in a similar situation?

Douglas F. Gansler:

–A break in custody that–

Sonia Sotomayor:

Between the invocation of counsel and a requestioning.

You said a number of circuit courts have recognized this break in custody theory.

Douglas F. Gansler:

–Actually, all — eight Federal circuits.

I don’t know what the shortest is.

But there are cases that are weeks rather than years that they have–

Sonia Sotomayor:

Which are days?

Douglas F. Gansler:

–What’s that?

Sonia Sotomayor:

Any are days?

Douglas F. Gansler:

Not that I am aware of, Your Honor.

And with that, I will reserve — if there are no further questions, I will reserve the remainder of my time.

John G. Roberts, Jr.:

Thank you, counsel.

Mr. Heytens.

Toby J. Heytens:

Mr. Chief Justice, and may it please the Court:

This Court has repeatedly made clear that Edwards v. Arizona is a prophylactic rule designed to implement the protections of Miranda v. Arizona, and it does so by operating as an anti-badgering rule.

On the facts of this case, I don’t think there is any colorable argument that Mr. Shatzer was badgered into waiving his Sixth Amendment rights.

Stephen G. Breyer:

I know that you’re going to go into the question of how we shape a rule, and I would like you, and perhaps on rebuttal your other counsel, to comment on the following: I don’t see — as Justice Kennedy had a problem, so do I have a problem with anything that just says break in custody, and taking time seems fairly arbitrary.

Suppose you — could you try to shape a rule on the civil situation, the codes of ethics, where you are not supposed to talk to a client who is represented by a lawyer?

That’s where my mind is going.

And the best I could do at the moment is you would say: When, due to a breach in custody and the passage of time, the questioner did not and would not reasonably believe that the suspect was looking for or was represented by counsel?

What I’ve tried to do is take the purpose of the civil rule, the ordinary ethical rule, and then use it to shape a standard.

So I would appreciate any comments on that thought.

Toby J. Heytens:

Justice Breyer, I think there is a few problems with that approach.

First of all, this case is not about the Sixth Amendment right to the assistance of counsel.

It’s about the Fifth Amendment right against compulsory self-incrimination, and this Court has said several times that rules of legal ethics are not relevant to the Fifth Amendment self-incrimination rule.

It says that in the Burbine case, for example.

That is the case where, although the questioner knew that the suspect had an attorney who was trying to reach him, the Court said that is not a Fifth Amendment self-incrimination problem, because we have to look at things from the perspective of the suspect.

The question is whether the–

Stephen G. Breyer:

Quite a lot of what I read was about the problems of counsel.

Counsel has nothing to do with this, nothing at all?

Toby J. Heytens:

–Counsel has something to do with it, but the Court has made clear going back to Miranda that when we’re we are talking about the Fifth Amendment right to counsel, the only reason that counsel matters is to help to make sure that–

Stephen G. Breyer:

If — are we interested in counsel or not?

If we are interested in whether he’s represented by counsel, and Miranda covers both, then I would repeat my question.

Toby J. Heytens:

–We are not–

Stephen G. Breyer:

If we are not interested in representation by counsel, then I would withdraw my question and you don’t have to answer it.

Toby J. Heytens:

–We have — in the Fifth Amendment context, we are interested in counsel only as a derivative of his right not to be forced to incriminate himself.

Toby J. Heytens:

It is in this context a purely derivative right, and we need to look at it from his perspective.

I think the reason that this case matters in an intensely practical way is, there are approximately a million and a half prison inmates in this country right now, many of whom are serving extremely long sentences.

Samuel A. Alito, Jr.:

Well, couldn’t we say that in — in the situation where there is a change from pretrial status to post-conviction status, the Edwards rule is no longer an irrebuttable presumption, but it’s simply a rebuttable presumption?

And that there — that the rule would not apply if the prosecution could show that under the circumstances the reason for the rule, the concern about law enforcement badgering, was not present?

Toby J. Heytens:

That would certainly be open to the Court to say that, Justice Alito.

Ultimately, this is a — a second-order–

Antonin Scalia:

Would it be a good idea to say that?

Toby J. Heytens:

–I don’t think it would be a good idea.

Antonin Scalia:

I thought we liked clear lines in this.

I mean, the police won’t know what to do.

Toby J. Heytens:

And, Justice Scalia, that’s precisely why we think the break in custody exception–

John Paul Stevens:

But carrying — carrying that analysis one step further, if you are just talking about people who were inmates pursuant to prior conviction, why wouldn’t the better rule be that if the inmate is given the opportunity to say no, I don’t want a visitor today, and then if he accepts the visitor, you would say he is no longer in custody?

But if he says, I don’t want to, then he — then he is in custody and you preserve the presumption.

Toby J. Heytens:

–Well, Justice Stevens, I suspect that’s what the police would do, if you ruled against the State in this case.

But I think the reason that you shouldn’t do that is you have to ask yourself what is the benefit that such a rule is trying to accomplish.

The Court has made clear again–

John Paul Stevens:

Well, that — such a rule would accomplish the benefit when he really wants — willing to talk, he would say: I would be glad to talk to the officer.

Toby J. Heytens:

–Well, Justice Stevens–

John Paul Stevens:

If he doesn’t want to, he should just say no.

Toby J. Heytens:

–Justice Stevens, if he didn’t want to talk to the officer, there was nothing to prevent him from invoking his Fifth Amendment right to counsel.

John Paul Stevens:

But it is a little different when the man first comes, says, will you talk to the officer.

He can very clearly say no.

But if he is in the room with two or three people around in a different setting, then he is still in custody.

Toby J. Heytens:

He is in custody, Justice Stevens, but the premise of Miranda is that a person who is given the Miranda warnings can choose to decide whether to talk or not to talk.

Samuel A. Alito, Jr.:

If the change–

Antonin Scalia:

You started to tell us why this case was important.

Would you — would you finish that?

You said there were–

Toby J. Heytens:

Certainly.

The reason this case is important, Justice Scalia, is that because under the Maryland Court of Appeals decision no police officer, no corrections official, can approach any prisoner without first attempting to determine if at some point, to someone, at some place, during the period of continuous incarceration he has ever invoked his Fifth Amendment right to counsel.

John Paul Stevens:

That’s not true, because my hypothetical, if you told him you don’t have to talk to the officer, and you could produce, they could question every — everybody in jail all over the country.

Toby J. Heytens:

Well, they can’t approach him for questioning.

John Paul Stevens:

They can’t force him to attend the questioning.

But if they give him an opportunity to say, I — I’m a prisoner, I just want to stay in the prison population and not go to an interrogation room.

And if he is willing to go, you could question him.

You do not have the example of no possibility.

Toby J. Heytens:

Justice Stevens, the problem in that situation, again, though, is that ultimately the only basis for applying this presumption at all is if it’s appropriate to apply an irrebuttable presumption that, even though we gave him the Miranda warnings and even though he said, I am happy to talk to you, we should presume that when he said that, that wasn’t the truth.

Antonin Scalia:

–I — I thought that you couldn’t approach him.

I thought that once he’s invoked his right to counsel, you can’t approach him and say, would you like to talk now?

Right?

Isn’t that — isn’t that the rule?

Toby J. Heytens:

Well, under Rhode Island v. Ennis, you are entitled to — to update him on the status of the interrogation, but you are not entitled to resume custodial interrogation unless there has been a break in custody or something has terminated Edwards.

Antonin Scalia:

Well, if the incarceration is a continuation of custodial custody, to be redundant, if it is a continuation of the custody, then why wouldn’t asking him whether he would like to see visitors who want to ask him about a particular crime, why wouldn’t that be a violation of Edwards?

Toby J. Heytens:

I think defendants may well argue that it was–

Antonin Scalia:

I’m sure they would.

Toby J. Heytens:

–Justice Scalia, and–

Antonin Scalia:

So the — the — the scheme that Justice Stevens proposes wouldn’t work.

You would be violating Edwards when you asked him if he wanted to see interrogators.

Toby J. Heytens:

–I think there would be a risk of that happening.

I think the other reason is — again, this is a second order prophylactic rule that the Court has adopted solely in order to prevent people from being coerced, coerced into incriminating themselves when they don’t want to.

Anthony M. Kennedy:

You join counsel for the State in just not wanting to argue for a time rule, which seems to me the only thing that would work.

Toby J. Heytens:

We — we — think the break in custody approach is the more appropriate one that will lead to fewer line-drawing problems.

It is certainly open to–

Anthony M. Kennedy:

That’s become apparent, and I’m indicating that I think the time rule might have some benefits.

Toby J. Heytens:

–Well, we certainly don’t oppose the Court adopting a time rule in the event that it rejects our primary submission.

In United States v. Green, the government argued for a raw passage of time approach, and we think, ultimately, this is the Court’s rule, it’s a second order prophylaxis rule that is designed to implement the Fifth Amendment, and it would certainly be open to the Court if it thought necessary to–

Anthony M. Kennedy:

But you don’t give us any — any suggestions.

As — you know, the State opens the bidding with seven days.

[Laughter]

But the Speedy Trial Act, with many exceptions, requires that you go to trial within 70 days.

Anthony M. Kennedy:

Would that be a benchmark?

Toby J. Heytens:

–Well, I think as a practical matter, though, there are so — as you point out, Justice Kennedy, there are so many exceptions to that.

We think that would be far longer than would be necessary or appropriate under the circumstances.

I mean–

Ruth Bader Ginsburg:

In this — in this case it’s two years and seven months.

Why should the Court take that — a period of that length and say, well, we are going to now rule for all future cases it should be, say, six months.

Toby J. Heytens:

–Well, I think that is another potential defect in adopting a pure passage of time approach, though I think this case is particularly easy.

And I think the fact that the Maryland Court of Appeals in this case concluded that two years and seven months is covered by an anti-badgering rule just shows at some point how far this has departed from the original purposes of Edwards in the first place.

So, I do think — I mean, the Court could simply say this case is too long, though at that point the Court isn’t providing a great deal of guidance to the lower courts that have to deal with these problems on a day-to-day basis.

Antonin Scalia:

Or to the police who have to decide whether they can interrogate or not.

Toby J. Heytens:

Absolutely.

It would also not provide very much guidance to the police to just say two years and seven months is too long.

And that’s again why we think an approach that is either — easy to tether to the break in custody, which as I think I have said, we think better maps on to the concern that motivated Edwards–

Let me address for a moment the catch and release situation.

Sonia Sotomayor:

I don’t want to interrupt that, but there were two aspects to Edwards.

One was the coercion, but the other was the respect for the advisement of counsel.

And so the test that you are proposing only addresses the coercion prong of it, not the respect for the invocation of counsel.

Toby J. Heytens:

The Court has mentioned respect in the choice.

I think, with respect, ultimately though, that can’t be the basis for the Edwards rule.

The Court has made clear repeatedly that the Fifth Amendment prohibits only compelling someone to be a witness against himself.

John G. Roberts, Jr.:

Thank you, counsel.

Ms. Davis.

Celia A. Davis:

Mr. Chief Justice, and may it please the Court:

Creating exceptions to the rule of Edwards means a clear rule is lost.

It introduces uncertainty into the determinations of what constitutes custody and what length of time might be adequate to excuse the protection.

Samuel A. Alito, Jr.:

This is an area where it is very difficult to draw lines, at least I find it difficult to draw lines.

So let me start you out with an extreme hypothetical, and I would like you tell me whether you think the Edwards rule reaches this far.

And if it doesn’t, then I would like you to tell me why it doesn’t.

And what limitations, if any, on the rule you would be willing to defend as consistent with the rationale for the rule.

Someone is taken into custody in Maryland in 1999 and questioned for joy riding, released from custody, and then in 2009 is taken into custody and questioned for murder in Montana.

Samuel A. Alito, Jr.:

Now, at the time of the first questioning, the — the suspect invokes the Fifth Amendment right to counsel.

Now, does the Edwards rule apply to the second interrogation?

Celia A. Davis:

Yes, it does, Justice Alito.

The Edwards rule provides two ending points as it stands right now.

Samuel A. Alito, Jr.:

And you don’t think that’s a ridiculous application of the rule?

First of all, how are the authorities in Montana possibly going to know whether this person was interrogated previously on a crime for which the person was never convicted in Maryland, and that invoked the right not to be questioned without — without an attorney?

And you think there is badgering in that situation?

Celia A. Davis:

Yes, Justice Alito, because badgering in this context has become a term of art.

It is used in quotation marks in the Montejo opinion.

Antonin Scalia:

It doesn’t mean badgering.

Celia A. Davis:

It means an attempt by–

Antonin Scalia:

We ought to get another term for it then.

[Laughter]

Questioning?

Celia A. Davis:

–I think it means returning in an attempt to get a suspect to change his or her mind.

And in this case, the suspect said when first questioned–

Antonin Scalia:

There was no attempt in this hypothetical to get him to change his mind.

They didn’t know he had made up his mind.

Celia A. Davis:

–Well, first of all, I didn’t answer the question properly.

But the police, I think, can run a rap sheet and find out from prior arrests if a person has been taken into custody.

And that would alert a police officer that that person may have invoked their right and they should do more to find out.

And second–

Samuel A. Alito, Jr.:

So all right, they run the rap sheet and they find out, if they do, that the person was arrested ten years earlier in Maryland and then what?

They try to find the detective that questioned the — the suspect in 1999 in Maryland?

And they find out that the detective is retired and is now, you know, fishing down in the Florida Keys, and they have to track this person down and say, now do you recall whether this person — that’s the rule you are arguing for?

Celia A. Davis:

–Well, the police officer should attempt to do so.

But I understand that–

John G. Roberts, Jr.:

I’m sorry to interrupt you — interrupt there, and I will let you get back to the answer.

They should attempt to do so.

The rule here does not allow the police to approach that person, a murder suspect.

John G. Roberts, Jr.:

And you are saying he cannot even be approached to see if he would waive his rights ten years later because he was — invoked the right in connection with joy riding?

Celia A. Davis:

–Yes.

Because–

John G. Roberts, Jr.:

Okay.

Celia A. Davis:

–if they have invoked the right, then the second approach means an attempt to persuade the person to change their mind about having counsel.

And where they haven’t done so in the interim, that amounts to–

Samuel A. Alito, Jr.:

Let me pose you my hypothetical again, the same joy riding questioning, and then 40 years later after the person has gotten a law degree and become an entrepreneur and made $20 million, he’s taken into custody and questioned by the Federal authorities for stock fraud.

Forever, you know, this right that was invoked back in adolescence continues forever.

Celia A. Davis:

–It should.

But let’s look at this case, Your Honor, because here this suspect was questioned about the same allegations by detectives from the same police department and while he was in custody continuously.

And under those circumstances Edwards and the rationale of Edwards should apply strongly.

Stephen G. Breyer:

Just in case — just in case we don’t — we want to put a time limit on it, which I know you don’t want us to do.

I’m now thinking and I would like your comment, if you want, of a combination of what Justice Alito said and what I said, that is, that there are two parts to the Edwards thing.

One is the lawyer part, and the other is the incriminating self part.

Now the lawyer part would be handled by shaping a rule based on the rules of evidence, along the lines I suggested.

And that would give you a time.

And then the Miranda part could be handled by saying: but the suspect retains the right to show that this questioning is badgering without the question marks.

In other words what they are really up to is to try to get him to change his mind.

Now would that work?

Celia A. Davis:

I — I believe the Court could adopt a type of rebuttable presumption under these circumstances but it shows the difficulty that courts would have and police officers, too, in measuring degrees, degrees of coercion or degrees of custody.

I think the foregoing discussion has illustrated that prisoners may be under different types of coercion in their prison context.

I just–

Sonia Sotomayor:

Can I ask something?

What does that have to do with the hypothetical Justice Alito gave you, which is the person is not in custody, right?

Celia A. Davis:

–Well–

Sonia Sotomayor:

He is arrested for joy riding; he is let go; and you are saying that for 20, 40 years he is now immunized from being reapproached by the police under the Edwards rule?

Celia A. Davis:

–Yes.

Sonia Sotomayor:

So you are advocating that no break in custody ever stops the Edwards clock.

Celia A. Davis:

Right.

The problems with the break in custody are a break will exist in almost every case, and even in Edwards there was a change in custody–

John G. Roberts, Jr.:

Well, but not–

Celia A. Davis:

–between the police to a State or county jail.

So there is a change in — a break in custody right there.

The prisoner was removed from the police department and taken to the county jail.

John G. Roberts, Jr.:

–It was one day.

He said he wanted the–

Celia A. Davis:

Yes.

John G. Roberts, Jr.:

–to remain silent in the evening, and at 9:00 the next morning they were back.

Celia A. Davis:

But a — a release from custody does not signal that a person who has asked for counsel has changed.

Sonia Sotomayor:

But you are now — you are now accepting your adversary’s point that somehow a — a change from a locked room in a prison to a different locked room is a release from custody.

Celia A. Davis:

No, I don’t–

Sonia Sotomayor:

If we don’t — if we don’t accept that proposition, isn’t there a clear break when someone is let to go home?

When someone is released and permitted to go home?

Celia A. Davis:

–There is more of a break, Justice Sotomayor, but it doesn’t say anything about that person’s choice to proceed with counsel, and if counsel is not provided then the attorney is excluded from the adversary system of Federal justice.

John Paul Stevens:

May I ask you about a different approach?

We are dealing in this case with somebody who was constantly in custody but for a different reason than the during the pretrial situation.

He is in the general prison population.

What — what would be wrong with the rule that said that a person in that situation should be advised that somebody wants to question him, and he has a right to say I do or do not want to talk to the visitor?

And if he is willing to talk to the visitor, then you have to give him new Miranda warnings and you start from scratch.

But have the — have the focus on whether he is in custody at the time of the questioning, and say that an inability to refuse to go to the interrogation room would be not treated as custody.

It would be treated as in the general prison population.

What would be wrong with such a rule?

Celia A. Davis:

I don’t think anything’s wrong and I don’t think a new rule is needed to cover that situation, because it is conceivable that a person, even in a prison environment, if they have control, say if they were to telephone out or to be free to refuse visitors, might not be considered in custody.

But in this case Michael Shatzer lived in a prison environment.

He was not free to–

John Paul Stevens:

But the record doesn’t tell us whether he was given an opportunity to say

“I don’t want any visitors today. “

Celia A. Davis:

–No, it does not, but I think the State has the burden to show.

The circumstances–

John Paul Stevens:

No, it’s a question who has the burden of showing he’s in custody or is he free to leave.

John Paul Stevens:

If he has the burden, he didn’t carry the burden in this case.

Celia A. Davis:

–Well, the record does show that he lived in a maximum security prison–

John Paul Stevens:

Correct.

Celia A. Davis:

–and does not show that he would be free to refuse.

John Paul Stevens:

But you can still live in a maximum security prison and say I don’t want any visitors.

Celia A. Davis:

We don’t know that he could have refused under the–

John Paul Stevens:

As far as the records show.

Celia A. Davis:

–Right, we don’t know that.

But Justice Stevens–

Antonin Scalia:

Do — do we have to ask him, you know, what visitors?

I mean, is that the question?

Celia A. Davis:

–Well–

Antonin Scalia:

Do you want to have any visitors today?

Celia A. Davis:

–This shows–

Antonin Scalia:

He says, I don’t know.

Is it my mother?

[Laughter]

Or — or do you ask him, are you willing to speak to investigators about a crime?

And he says what crime?

I mean, how specific does — does the request for permission to have visitors have to be?

Celia A. Davis:

–Well, I think–

Antonin Scalia:

–for this rule to cut in?

Celia A. Davis:

–This discussion shows the problems with allowing such a determination in the first place.

Our position is the definition of custody for Miranda purposes must be the same for Edwards purposes, for a prisoner lives within confined space under constant surveillance, and with no freedoms and limited expectation of privacy.

John G. Roberts, Jr.:

So then I don’t understand why your answer to Justice Alito’s hypothetical was what it was, because that person obviously was not in custody.

Celia A. Davis:

It — all I’m saying is that if we were to adopt the language that this Court in Montejo utilized, if a person is in control, if a person is not in custody, they are in control and can shut the door or walk away.

If that’s an operable definition, then it did not apply in this case, because Michael Shatzer did not have such freedom of–

Stephen G. Breyer:

Well, if you’re — if you are going to use the Edwards, which I think is a good idea, as counsel part, which I think is a good starting place, you and every other member of the bar deals with this problem every day of the week.

Not every day of the week, but very often.

You know somebody’s represented in a case, and you know you are supposed to talk to the lawyer.

Stephen G. Breyer:

But eventually time passes, and then you are probably free to talk to him, because the whole thing’s gone away.

Now that’s a pretty vague rule.

You could make it more specific, but the — the bar has lived with that kind of situation, I guess for years.

Celia A. Davis:

–Well–

Stephen G. Breyer:

So why can’t we here?

Celia A. Davis:

–We — I think we should.

The police officers have lived with the Edwards decision which says–

Stephen G. Breyer:

No, no, that’s not what I mean.

I mean that the obligation to deal with counsel, you don’t have, after enough time passes, that it’s no longer reasonable to think that that individual either has or wants counsel.

Celia A. Davis:

–Well, in this case there is no reason to think that this suspect changed his mind.

When first given his–

Antonin Scalia:

Excuse me, what is the ethical rule about counsel?

I thought if — if there’s counsel in a particular case and you want to approach the client about that case, you can’t do it without going to counsel.

Celia A. Davis:

–I think, though–

Antonin Scalia:

But when there is an entirely different case, there is totally different litigation, you can’t approach the fellow without going back to the counsel whom he hired for a different case?

I don’t think that’s the ethical rule.

But that’s the effect of Edwards.

Even if it’s a different crime, you have to go back to the counsel whom he hired for a different prosecution?

That bears no relationship to the ethical rules of — of counsel.

Celia A. Davis:

–Well this Court could adopt a rule that the Edwards protection — an alternative that was raised in United States v. Green — that the Edwards protection extends to the same case for which the police initially questioned the suspect and for which he asked for counsel.

That’s one alternative and I submit that would be more clear than–

Ruth Bader Ginsburg:

It would make a difference?

Does it make a difference?

If — we can limit it to the same case.

But here, the reason that the police came back is that they had additional evidence, and so they wanted to ask him, confront him with the new evidence.

It’s not the same situation that it was when he was initially questioned.

Celia A. Davis:

–Well, I think from the suspect’s point of view it is the same situation.

He was in the same position, facing the police in 2003 as he was in 2006, in that he was accused of committing crime and in the interim he had no access to counsel and I think that this is significant in this case, because it’s not clear that even if he had been able to call out of the prison he would have had representation, because the public defender’s office was under no constitutional or statutory duty to provide counsel for a person who’s not presently being questioned and who has not yet been charged.

Antonin Scalia:

What if — what if we limited Edwards to the same crime?

That would — that would really make it much easier for the police to–

Celia A. Davis:

I agree.

Antonin Scalia:

–to know whether this person in fact invoked the right to counsel.

Celia A. Davis:

It would be easier, yes; and it would apply to this case because it was the same crime.

Antonin Scalia:

So that would–

John Paul Stevens:

Would that require us to overrule Roberson?

Celia A. Davis:

Well, it does present some tensions with Roberson.

However, this case, since it is limited to the same crime, does it extend as far as Roberson does?

And I would like to answer Justice Stevens’ question.

In this case, the suspect was told — he was advised of his rights and said,

“I have the right to talk to a lawyer and have him present with me while I’m being questioned. “

“If I cannot afford to hire a lawyer, one will be appointed to resent — represent me before any questioning, if I wish. “

Those rights were never fulfilled in the two years and seven months they’ve had.

John G. Roberts, Jr.:

Well, but the Miranda Rights do not require the police to provide counsel.

They have to mean — mean you have to stop questioning, until the person has right to counsel.

Celia A. Davis:

Yes.

They have to.

John G. Roberts, Jr.:

And the one thing this person knew from the prior Miranda situation — was 2003?

Celia A. Davis:

Yes.

John G. Roberts, Jr.:

Is that, if he said,

“I don’t want to talk without counsel. “

the one thing he knew is that the police would stop questioning because that’s what they did.

Celia A. Davis:

But that’s not the same, Chief Justice Roberts, as having the counsel present during questioning.

John G. Roberts, Jr.:

Well, Miranda doesn’t–

Celia A. Davis:

If your Miranda advice–

John G. Roberts, Jr.:

–Go ahead.

Celia A. Davis:

–says that you have the right to have a counsel present during questioning, and all that advice means, after time, is, We will stop questioning you, then the right has been diminished over time.

Samuel A. Alito, Jr.:

Why is there a greater risk of badgering when the questioning is about a different offense?

Celia A. Davis:

I think the risk is the same.

The risk–

Samuel A. Alito, Jr.:

I thought you just said we could — you were suggesting an — as an alternative, that — that Edwards be limited to situations where the questioning is about the same offense.

Celia A. Davis:

–Well, that’s possible — well, the rationale that was extended in the Greene case is that, if questioning is about a different time, the perception, from the suspect’s point of view, that the police are badgering him, would be less.

Samuel A. Alito, Jr.:

I mean, this isn’t fanciful.

We just were asked to take a case involving a statute of limitations issue for a murder that was committed like 30 years ago, and it said suppose somebody is questioned by State authorities for a murder and taken into custody and then released and then, 30 years later, taken into custody by Federal authorities and questioned for a civil rights violation, based on the same underlying transaction.

You would say the Edwards rule applies in that situation?

Celia A. Davis:

Yes.

It does.

Now, a police officer in that situation, really, has three alternatives.

One, they could wait until counsel was present, to be sure of obtaining a statement admissible in the State’s case-in-chief.

Number 2, they could take a chance, as happened in this case, where Detective Hoover never opened a case file and didn’t know that the suspect had ever invoked his right, take a statement anyway, and run the risk that it may have to be excluded.

Or, three–

Antonin Scalia:

–Well, you are being very unrealistic.

Have you ever known defense counsel who says, “Oh, yes”, to submit to the interrogation?

I mean — you know, once they are lawyered up, they are not going to talk.

You know that.

Celia A. Davis:

–Yes.

I know that, but that — this Court, in Miranda, was concerned with the limits that society must impose, consistent with the Constitution, in prosecuting crimes, and I think Edwards strikes the balance between the individual faced in captivity questioned by interrogators and the State.

John G. Roberts, Jr.:

Well, you say, “in captivity”, but you think the rule applies, whether they are in captivity or not.

In — in Justice Alito’s hypothetical, the person was free for 40 years, so captivity is not a limitation on your — your proposed rule.

Celia A. Davis:

Well, a person is going to be in custody in each Edwards scenario at the time they are questioned, so the question is the intervening time period.

And what I’m saying is–

John Paul Stevens:

Well, you agreed that, if he is questioned and he is not in custody when he is being questioned.

If he stopped on the street or in his living room, they can question him there.

That’s the–

Celia A. Davis:

–Yes, because Edwards only applies to custodial interrogation, and, under these circumstances, Edwards strikes a balance in a familiar and predictable way.

The fact that these case — this case does not — does not–

Sonia Sotomayor:

Counsel, we–

Celia A. Davis:

–permit an exception.

Sonia Sotomayor:

–We don’t have a case.

None of the cases in this area, where we have applied Edwards, has dealt with a situation with — where a prisoner has been released from custody, in any sense of that word, i.e., sent home.

In all of the three situations that I am aware of, in which the Edwards rule has applied, the prisoner has stayed in jail — some form of jail.

Sonia Sotomayor:

Correct?

Celia A. Davis:

Yes, some form of jail.

But there is — you know, Chief Justice Roberts referred to the difference between the — the police station and the prison.

There are also pretrial detention centers, and there is a range of custodial scenarios that — that police officers might encounter.

And advancing an exception to the rule for a break in custody presents practical problems.

Sonia Sotomayor:

Well–

John G. Roberts, Jr.:

Well, I suppose, if they are in a pretrial detention center, they know they are still being looked at for the crime as to which they have invoked the Miranda warnings.

Celia A. Davis:

Yes.

John G. Roberts, Jr.:

So you wouldn’t call that — and I don’t understand the other side to argue that that is — there is a break in custody there.

Celia A. Davis:

But a transfer within — look.

If it doesn’t, then — then it doesn’t, but there should not be a break there.

Otherwise, there would have been a break in Edwards and in many–

John G. Roberts, Jr.:

No.

I agree with you.

There shouldn’t be a break there, but, here, the situation is quite different.

There is a break between jail for questioning and prison for 15 years — or whatever your sentence is.

Celia A. Davis:

–But, from the suspect’s point of view, the only thing that changed is the State agents who temporarily held him in a room for questioning.

He was still under custody–

John Paul Stevens:

–Yes, but — but wouldn’t it make sense to treat the — the change from a pretrial detention to a general prison population as, by itself, a no longer custody, provided he is told that he doesn’t have to talk to people who want to pay him a visit.

He could say — they could have a rule, say that the prisoner does not have to talk to everybody who comes — comes around, and then you could treat that as the functional equivalent of not being in custody.

Wouldn’t that be a sensible rule?

Celia A. Davis:

–It’s — it’s one possibility, but I don’t think it’s a workable rule.

The circumstances of custody within an institution can change dramatically.

John Paul Stevens:

They can, but, if you say, as a condition to — to questioning, he just has to know that he doesn’t have to see visitors he doesn’t want to see, which doesn’t seem, to me, a very hard rule to administer.

Celia A. Davis:

It doesn’t, Justice Stevens, but I think the problem is it’s a hard rule for police officers to know.

If they go to an institution to question someone, how do they know if that rule is applicable to that prison?

John Paul Stevens:

Well–

Antonin Scalia:

Doesn’t — but doesn’t the beginning of the Miranda warning tell him that he doesn’t have to–

John Paul Stevens:

–They have the prisoner there, and he shows up, and then — that’s the end of it.

Celia A. Davis:

I still think it presents difficulties.

John Paul Stevens:

I–

Sonia Sotomayor:

–Could I have a clarification of the facts for a moment?

In 2003, he was in one State facility, a sentenced prisoner.

Correct?

Celia A. Davis:

Correct.

Sonia Sotomayor:

And he was just moved from one State prison to another.

He wasn’t in pretrial detention in either of these timeframes.

Correct?

Celia A. Davis:

That’s correct.

Sonia Sotomayor:

We are just talking about a change in facility, not in status?

Celia A. Davis:

Exactly.

And, Justice Sotomayor, I wanted to answer your question about the time period, where the circuit courts have sanctioned a break in custody.

One is cited in the Respondent’s brief, at page 27, is Holman versus Kemna, and a one-day break was — was authorized in that case.

That’s a very short time period.

Sonia Sotomayor:

What were the circumstances?

I don’t recall the case.

Celia A. Davis:

Well, that was the case that is not entirely analogous, but it’s close, where the question was whether a statement was tainted by an Edwards’ violation.

It also involved the Sixth Amendment, I believe, so–

Sonia Sotomayor:

Was the prisoner in a prison the entire 24 hours?

Or was the individual released home, that sort of–

Celia A. Davis:

–I think it was a release home.

If I recall correctly, I would have to double-check, but there was a one-day period that the Court recognized.

Antonin Scalia:

–Do I misunderstand Miranda warnings?

Isn’t he told, at the very outset of the Miranda warning, that he doesn’t have to talk, if he doesn’t want to talk?

Is that — is that any less strong than — than asking him whether he wants to receive visitors, in general?

Or, in particular, a visitor who wants to ask him about a particular crime?

I mean, he is — he is told that with the Miranda warning, which he is given the second time.

If you don’t want to talk, you don’t have to.

If you want a lawyer to be present, you are entitled to a lawyer, or — and — and or, else, we terminate.

I don’t know why that isn’t enough.

Celia A. Davis:

It isn’t enough, Justice Scalia, because — and I think this came out of Arizona versus Roberson.

Merely repeating advice, when the right to counsel has not been fulfilled, is not enough because the person, over time, might lose hope of ever seeing an attorney, and, certainly, a prisoner has less means than someone on the street to hire an attorney.

Antonin Scalia:

He doesn’t care whether he gets an attorney, so long as he doesn’t have to talk to the investigators.

That’s the issue, whether he must talk to these investigators, and he is told, right up-front, You don’t have to do it, and if — if you want an attorney for it, we will get you an attorney.

Otherwise, we — we will terminate the interview.

Celia A. Davis:

But, if he has asked for an attorney in the past and, over two years and seven months, has never seen the right fulfilled, I think that the — that the pressure to cooperate with interrogators has increased.

John G. Roberts, Jr.:

That is a — isn’t that a Sixth Amendment question?

That’s not a Miranda question, if he has not been provided a lawyer.

Celia A. Davis:

Well, in this case, Chief Justice Roberts, the Sixth Amendment never attached because this suspect had never been charged.

John G. Roberts, Jr.:

Right.

And it’s the Fifth Amendment we are worried about, and that is directed to coercion–

Celia A. Davis:

Yes.

John G. Roberts, Jr.:

–and that is addressed, if you stop questioning him.

You don’t even start questioning him, if he says, Look, I don’t want to talk without a lawyer.

Celia A. Davis:

But I think–

John G. Roberts, Jr.:

Talking stopped, as it did the very — the first time he was approached.

Celia A. Davis:

–It did, but for a prisoner in custody questioned about the same offense, the coercive pressures that were present in Miranda are present for him as well.

That’s why we think the core holding, the core rationale, of Edwards applies very strongly in this case.

Ruth Bader Ginsburg:

Why wouldn’t he think, I invoked my right to remain silent without a lawyer two years and seven months ago, I will do it again; they will have to stop questioning?

Why wouldn’t that be the most likely mindset of the defendant?

He knew that it worked the first time.

Why should it not work the second time?

Celia A. Davis:

I think it’s — it’s possible.

But in this case, where the right to counsel went unfulfilled for that period of time, a person might lose hope that that advice that he asked for help would ever be fulfilled.

John G. Roberts, Jr.:

So if he says — I’m sorry–

Celia A. Davis:

Go ahead.

John G. Roberts, Jr.:

–Are you done answering?

So if he said, instead of I want to talk to a lawyer, if he said, I want to remain silent, your case comes out differently?

He doesn’t say anything about a lawyer.

He says, Look, I don’t want to talk to you.

Celia A. Davis:

I think it would come out the same way.

John G. Roberts, Jr.:

Well, but all your arguments about he hasn’t been provided a lawyer, there is an ethical obligation to provide a lawyer.

Those — those are off the table.

Celia A. Davis:

Well, what’s different is in this Court, I think may be clear in Michigan v. Mosley: Asking for help from an attorney is materially different than saying, I choose to remain silent.

And the reason is a person who invokes the right to silence while questioned in custody is in control and chooses to stop the questioning.

Antonin Scalia:

He doesn’t ask for an attorney.

He just says, I don’t want to talk without an attorney.

That’s what he says.

He doesn’t demand an attorney.

He says, I don’t want to talk without an attorney.

And the investigators say, Okay, in that case, we won’t talk to you.

Celia A. Davis:

Well, and they treated it as a clear invocation of the right to counsel by documenting it in two places and putting that in the case file.

Antonin Scalia:

The right to counsel in the course of interrogation.

Celia A. Davis:

Yes.

I — I think what he said was,

“I won’t speak to you without an attorney. “

is the same as asking for an attorney.

Samuel A. Alito, Jr.:

I can think of — I can think of at least one situation in which the Court has held that there is a time limit in which something has to be done in order to comply with a Constitutional requirement.

If we were to choose a time period here, what would — what would you propose?

Celia A. Davis:

Oh, anything over two years and seven months.

[Laughter]

Samuel A. Alito, Jr.:

What would be–

Celia A. Davis:

That still doesn’t solve the problem.

Samuel A. Alito, Jr.:

–What would be a serious — what would be a serious answer to that question?

Celia A. Davis:

We’ve argued that Edwards continues to the end, and the reason is–

Samuel A. Alito, Jr.:

All or nothing.

Celia A. Davis:

–It’s all or nothing, Justice Alito, because — because this Court has already said in Edwards, We will allow the police to come back if the suspect changes his or her mind or if an attorney is present.

And those two — those two alternatives are available every day and they are easy for the police to ascertain.

Sonia Sotomayor:

–Your adversary says that they — he can’t change his mind.

It has to be a spontaneous, you know, somehow they have to be in a room together that wasn’t planned and he has to come up and say, I am confessing out of the kindness of my heart.

Sonia Sotomayor:

The police can’t even approach him, according to you, once he has invoked counsel, to ask him whether he wants to change his mind.

Celia A. Davis:

That’s right.

Sonia Sotomayor:

That’s the point.

Celia A. Davis:

That is the badgering.

That is the specter of coercion that is inconsistent with the Constitutional right related to Miranda to have counsel present.

And that is the reason why–

Sonia Sotomayor:

So there is no termination point, really?

Celia A. Davis:

–It is not confined to time, Justice Sotomayor, but the termination point is, especially for a prisoner, it’s easy for the prisoner to contact the police.

Just tell the jail guard that you’d like to talk to the police about that investigation.

They will make arrangements quickly for that to happen, I’m quite sure, or counsel could be present and questioning can proceed in that instance, and those are the reasons I would ask this Court to affirm the judgment of the Court of Appeals of Maryland.

Thank you.

John G. Roberts, Jr.:

Thank you, Ms. Davis.

General Gansler, you have two minutes remaining.

Douglas F. Gansler:

In response to Justice Breyer’s question, the ethics rules do not apply to the police, only to lawyers, and I think Justice Scalia hit it right, exactly right, where this — he’s actually — in this case, he is not represented at all.

He is in custody because his case has been concluded.

Stephen G. Breyer:

My thought is, can you use the rule for lawyers, which has worked, to help shape a rule that would work here?

Douglas F. Gansler:

Yes, and I will get to that in one second.

And I agree — and that’s exactly right.

The visitors in jail theory that Justice Stevens brought up: The defendant could say,

“I told them I don’t want to talk to any visitors, no matter what. “

“I don’t want to talk to any visitors. “

“They dragged me up there, made me go into this room and answer questions. “

Then you have — while Edwards, in our view, would have already been terminated, you have still the argument that my — my Miranda warnings were not waived voluntarily and freely, and moreover, I was denied due process.

In terms of the time limits of the cases, in The State of Maine, Stafiali was six hours, and the following day, Dunkins v. Thigpen in the Eleventh Circuit was the next day, following a break in custody.

Now, those cases, the guy basically went home in those scenarios.

The confusion seems to be, in a lot of the questions, regarding what is custody?

We will not — we don’t argue — we are talking about interrogational police custody, which is different than being in jail, lying on your cot, watching cable television.

We — this is — in our scenario, the three days that now exist, whereas no one questions in the Roberson, Minnick, and Edwards cases, those three days were pretrial police custody situations.

There is no break in custody–

Sonia Sotomayor:

But — but there was no difference in those cases, as I understand it.

Sonia Sotomayor:

Each of the prisoners was in a particular room being questioned, and then he was released into a more general room later.

Douglas F. Gansler:

–My understanding of this case–

Sonia Sotomayor:

And brought back.

Douglas F. Gansler:

–My understanding of this case, they were in the — sort of the box, as we call it, and then they were put into a holding cell, a cell, and then brought back to the box.

Very different–

Sonia Sotomayor:

There is no difference between that and a holding cell, a maintenance room, and being put back into general prison to go sleep.

Douglas F. Gansler:

–The latter — the latter scenario is very different, because that’s where they live.

That’s their daily routine.

Through no part of the state, they are habitual offenders.

They live in the general population of a jail, in this case it is medium security, not maximum security, and they were put — there were people around.

They have recess, they have television, they have a cafeteria, and so forth.

Finally, going to Justice Alito’s question regarding the time limit, where you do it.

This Court has the County of Riverside — obviously, there’s 48 hours from presentment is the time.

John G. Roberts, Jr.:

Thank you, Counsel.

The case is submitted.