THOMPSON, Associate Judge, concurring:
I join Judge Reid's thoughtful and careful opinion. I write separately to explain why — having viewed in their entirety the over thirteen hours of DVDs of Mr. Dorsey in the interrogation room, and being fully mindful of our measure of review, see ante at 227 — I am satisfied with Judge Reid's conclusion that Mr. Dorsey's confession was voluntary.
I agree with Judge Reid that Mr. Dorsey demonstrated throughout his ordeal, from about 7:20 p.m. on May 7 until about 9:15 a.m. on May 8, that he could not be pressured into confession through the tactics that the detectives used. Mr. Dorsey, who acknowledged early in the interrogation that he had "been around the block a couple times" in the criminal justice system, held his own throughout the detectives' questioning, appearing to be unintimidated, observing detachedly at one point that Detective Ross was "trying everything in the book," responding to Detective Ross's description of evidence that would show that Mr. Dorsey was lying by telling the detective, "You're playing with me," and explaining that he wanted his case to go to court so that the detectives would "stop messing with me." Mr. Dorsey repeatedly stated that he would go to court and that he didn't really care if he lost at trial and went to jail. From the (eight) DVDs, it appears that what Mr. Dorsey found uncomfortable was not the questioning or the detectives' claims about the evidence they were building against him, but his inability to lie down to sleep. During the several hours when he was left alone in the interrogation room, he sometimes maneuvered to the floor and lay there, arm raised and still handcuffed to the chair in which he had been sitting. His discomfort at those times, and as he tried to sleep while sitting up in the unforgiving chair, is palpable. But, notwithstanding the discomfort, throughout the night Mr. Dorsey showed no inclination at all to confess or to initiate a conversation with the detectives to end his ordeal. At no point on any of the eight DVDs does it appear that Mr. Dorsey was worn down, or that his will was overborne.
In addition, after Mr. Dorsey had confessed, he made a comment to Detective Crespo about the detectives' having "said all that bullsh*t[,]" and then said "I've been in the system and all. I know."
Albeit with slight exaggeration, the government has it about right in arguing that the detectives' tone throughout the questioning was "unfailingly polite and conversational."
Mr. Dorsey unambiguously invoked his right to counsel when, alone in the interview room with Detective Thompson at nearly 3 a.m., he told the detective, "I need to talk to a lawyer now" and "I don't want to talk no more. I'm not saying nothing else." Undeniably, the continued questioning that followed, and the continued coercion of sitting handcuffed or lying down on the floor while still shackled all night in the interrogation room, were a "flagrant breach of the prophylactic rules established by the Supreme Court in Miranda and its progeny. . . ." Collazo v. Estelle, 940 F.2d 411, 419 (9th Cir. 1991) (en banc). But, as Judge Reid notes, we have not recognized a categorical rule that a defendant cannot be said to have initiated contact with police if, previously, police have continued questioning him despite his invocation of his Miranda rights. Cf. Riley v. United States, 923 A.2d 868, 884, 885 n. 17 (D.C. 2007). Rather, we have asked whether any taint from the detectives' failure to honor scrupulously the defendant's invocation of his rights "was dissipated by the lengthy break." Id. at 885 n. 17. Accordingly, our task here is to determine whether Mr. Dorsey's request to speak with detectives on the afternoon of May 8 and his subsequent confession were voluntary (and entailed an implicit waiver of his rights), or whether instead his actions were involuntary in the sense that they were tainted by the detectives' failure to honor scrupulously Mr. Dorsey's invocation of his right to counsel. The law requires "exclusion of evidence tainted by the violation" of Mr. Dorsey's invocation of his right to have counsel present during the interrogation. Burno v. United States, 953 A.2d 1095, 1106 (D.C. 2008) (Ruiz, J., concurring).
Detective Ross had left the interview room shortly after 2:00 a.m., telling Mr. Dorsey that it was "time for you to get some rest."
See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (explaining that "the term `interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect").
Thus, our analysis must focus on what interrogation followed Mr. Dorsey's invocation of his right to counsel and whether the effects of that interrogation are reflected in his later actions toward and statements to police. And, here, it is important to describe the interrogation carefully. In terms of duration and effect on Mr. Dorsey's demeanor, the major form of interrogation that followed Mr. Dorsey's invocation of his right to counsel was the hours he spent alone in the interview room, handcuffed to his chair and thus unable to lie down to sleep comfortably, after Detective Thompson had departed the interrogation room (some time after 3:00 a.m.). But, by the time Mr. Dorsey initiated the discussion with the detectives on the afternoon of May 8, he had had an opportunity to sleep in lockup. He testified that he was not intimidated by being in a jail cell and that no one bothered him while he was in lockup. On DVD number 8, the recording of the confession he made after he asked to speak again with detectives, Mr. Dorsey looks refreshed and energetic. I am persuaded that the coercive impact of Mr. Dorsey's silent overnight ordeal had dissipated by that time.
Cf. Stewart v. United States, 668 A.2d 857, 866, 867 (D.C. 1995) (reasoning that where Detective Treadwell, Stewart's fellow church member, spoke to Stewart in his cell after Stewart had invoked his right to remain silent and asked Stewart whether he would be willing to speak to the detective later in the day, Stewart's statements to Detective Treadwell eight hours later when he asked to speak to the detective were inadmissible, because Stewart acted "in response to Detective Treadwell's invitation during the improper interrogation at the cellblock").
Cf. Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992) (reasoning that the approximately six hours that passed between the defendant's mistreatment and his confession and the difference in treatment accorded him by his subsequent interrogators had provided a "meaningful interlude" that permitted the threat of physical mistreatment to "fade[] considerably in the interim," and concluding that even though the contamination from the earlier interrogation had not completely disappeared, the "break in the stream of events" meant that the contamination was not sufficient to render the confession involuntary).
What also transpired after Mr. Dorsey invoked his right to counsel were periods of questioning, immediately after he said he needed a lawyer and again hours later, just before he was taken to lockup. The first period of questioning spans ten transcript pages. Detective Thompson told Mr. Dorsey that "only a fool" would want a judge to see all the evidence against him, and that he ought to call his mother and ask her to pray for him to "set [his] conscience straight. . . ." Seemingly unaffected, Mr. Dorsey responded repeatedly, "I'm going to go to court." Detective Thompson next suggested that Mr. Dorsey should think about how, by confessing and going to jail, he could "get [his] medical stuff squared away" and get things off his chest. In response, Mr. Dorsey muttered something to the effect of "the hell with it." Next, Detective Thompson asked Mr. Dorsey whether his mother had ever been robbed, and Mr. Dorsey said, "No." Detective Thompson then told Mr. Dorsey that there were two sides to every story and that he wanted to give Mr. Dorsey a chance to tell his side. Mr. Dorsey said that he "want[ed] to lay down and go to sleep."
The transcript of the questioning up to that point covers almost 170 transcript pages.
There was no more questioning until Detective Ross returned at about 8 a.m. on May 8. This questioning, which spanned the time period just before Mr. Dorsey was taken to lockup, covers twelve transcript pages. Detective Ross showed Mr. Dorsey the return for a warrant to search Mr. Dorsey's rented room and asked whether Mr. Dorsey "still want[ed] to stay with [his] story." Detective Ross accused Mr. Dorsey of lying to the detectives about having stayed in a shelter, told him that his whole story was falling apart, told him that he needed to tell the truth and express remorse and say that he didn't mean to hurt the victim, suggested that he could attribute his mistake to needing drug treatment, and urged that Mr. Dorsey didn't want to "roll the dice on something like this." Mr. Dorsey responded that he "didn't do nothing." Detective Ross told Mr. Dorsey that he had found the person who had driven by in a white car while the robbery was going on. An unidentified detective asked Mr. Dorsey whether he thought that police would fail to "put all this together" and asked him "what happened?" Mr. Dorsey responded that the detective would "hear it in the courtroom," declining the detective's request for "a small scenario" of what Mr. Dorsey's "story[] was going to be. Just after Detective Ross stepped out of the room, Mr. Dorsey told the unidentified detective, "I don't want to talk. I'm ready to go to sleep." Detective Thompson told Mr. Dorsey that "[t]he sh*t is backing up" and said something about "trying to help [Mr. Dorsey] out."
It is on that record of interrogation that we must consider whether Mr. Dorsey's initiation of further discussion and his confession on the afternoon of May 8 bore any taint from the detectives' failure to honor scrupulously Mr. Dorsey's invocation of his right to counsel. I begin by observing that the trial judge's description of Mr. Dorsey is apt: during the interrogation shown on DVD number 8, Mr. Dorsey "was talking just as matter [of] factly and just as plain and just as undisturbed as anybody I have ever [seen]." He gave a detailed and expansive account and repeatedly cooperated in dramatizing how he hit Mrs. Fotopoulous and took her money. He quoted the people whom he mentioned in his account of what happened, and he asked the detectives to clarify their questions.
Unlike the defendant in Collazo, Mr. Dorsey did not "testif[y] he was scared" into confessing. 940 F.2d at 421.
Significantly, Mr. Dorsey did not merely parrot the detectives' suggestions. To the contrary, he repeatedly disagreed with or declined to adopt detectives' suggestions that he had a glove or sock or something else on his hands when he robbed Mrs. Fotopoulous, that Mrs. Fotopoulous had a "pouch," that he could have done "something else in that alley that you don't remember," and that he sustained injuries during the robbery. He said that he did not know the color of a car that drove by just before the robbery even though the detectives had told him repeatedly about a white car that was in the area. Asked whether the man who showed him where Mrs. Fotopoulous lived had a beard or a moustache, Mr. Dorsey rejected those choices and responded that the man "had plaits in his hair." Mr. Dorsey made no reference to the evidence that police had against him (saying, instead, that he knew that police did not have a case on him), and no reference to anything that police might have found in a search of his room, taking advantage of the medical care in jail, or being high on drugs, as the detectives had urged. Mr. Dorsey answered `Teah" when detectives asked whether he felt remorseful, and he said he felt "bad" when detectives asked, "How do you feel about what happened?," but he did not mention on his own the "remorse" and "conscience" clearing that detectives had suggested. Rather, he said repeatedly, that he didn't know the lady was "that old," that he had never before robbed a woman, and that he had not planned to hit the victim. And, although Mr. Dorsey did say that he had been drinking the day of the robbery, there is no reason to think that this was at the detectives' urging either, since, early in his May 7 interrogation, he told the detectives repeatedly that he was an alcoholic and drank "every day." In addition, he told the detectives that he knew that it was not their job to determine what charges would be brought against him.
In short, Mr. Dorsey's responses were not "mere supine attempts to give the desired response to leading questions." Lyons v. Oklahoma, 322 U.S. 596, 605, 64 S.Ct. 1208, 88 L.Ed. 1481 (1944).
Mr. Dorsey also talked repeatedly about "get[ting] it off my chest." He thus used words similar to those Detective Thompson had used after Mr. Dorsey said he needed a lawyer. But Detective Thompson had also used this language before Mr. Dorsey invoked his right to counsel, saying "Any decent person would want to get this off their chest, would you agree?"
In addition, during his confession Mr. Dorsey said, "If that would have happened to my mother, man. . . ." This was a theme that Detective Thompson pursued after Mr. Dorsey invoked his right to counsel, but it was also a theme that Detective Ross had pursued before Mr. Dorsey invoked his rights (asking, "Your wouldn't want to see anything happen to your mother, would you?. . . . So you don't think that's somebody's mother?").
I note, moreover, that when Mr. Dorsey initiated the conversation with detectives on the afternoon of May 8, he asked to speak with Detective Ross. Mr. Dorsey also called out to Detective Crespo, saying that he wanted to speak with him. It was Detective Ross, the lead detective, who advised Mr. Dorsey of his Miranda rights when the interrogation began on the evening of May 7. It was also Detective Ross, who, at a later point in the May 7 interrogation, with Detective Crespo present, told Mr. Dorsey that "I have to stop talking to you" if Mr. Dorsey requested a lawyer, and who sought clarification that Mr. Dorsey was "willing to still talk to me." Thus, Mr. Dorsey asked to speak to the detective who had acknowledged an obligation to honor Mr. Dorsey's rights. With Detective Ross being unavailable, Mr. Dorsey actually spoke with Detective Young (who had not participated at all in the earlier rounds of questioning) and Detective Crespo. Neither Ross nor Young nor Crespo had been present when Mr. Dorsey unambiguously (but to no avail) said that he needed to speak with a lawyer, and all three denied having been told that Mr. Dorsey invoked his right to counsel. Further, Detective Crespo had known Mr. Dorsey for about ten years and Mr. Dorsey agreed that the two had had a relationship of mutual respect. I am unpersuaded that Mr. Dorsey's experience taught him that these detectives could not be trusted to honor his rights.
To be sure, during his interrogation of Mr. Dorsey, Detective Ross did deflect many statements and questions from Mr. Dorsey about "[j]ust go[ing] to court" and about when he would be taken to lockup so that he could sleep. Detective Ross testified that he did not regard these statements as an invocation of the right to remain silent, and as to some of the statements, the trial judge agreed. Cf. DeWeaver v. Runnels, 556 F.3d 995, 1000, 1002 (9th Cir. 2009) (holding that "[t]he state appellate court could properly conclude . . . that a reasonable officer in the circumstances would not have understood [defendant's] request [to be "taken back to jail"] to be an invocation of the right to silence"). But the court found that Detective Ross had continued to question Mr. Dorsey after one such statement that the trial judge determined to be an unambiguous statement that Mr. Dorsey did not want to talk any more and wanted to terminate the interrogation ("go back there to sleep. . . . Take me back there.") In contrast, Mr. Dorsey told Detective Thompson, "I don't want to talk no more. I'm not saying nothing else" — words that the parties agree were unequivocal.
There was thus a "change in the identity of the interrogators [that] interrupted the effect of the [prior] coercion. . . ." Collazo, 940 F.2d at 421.
For this and other reasons, 1 see no basis to conclude broadly, as Mr. Dorsey argues, that police "affirmatively and deliberately set out on a course to show Mr. Dorsey that his rights were a nullity. . . ."
Finally, the tactics that the detectives used in this case do not even come close to the "questionable mode of psychological pressure" — officers' telling the defendant that his mother and grandmother had been arrested as a result of the discovery of contraband in their house and that he needed to confess so that his mother and grandmother would be released — involved in Brisbon v. United States, 957 A.2d 931, 946-47 (D.C. 2008), that led us to say that the question of the voluntariness of the defendant's confession was a "close one." Id. at 949.
Given all of the foregoing, I am satisfied that there was a qualitative "break in the stream of events sufficient to insulate" Mr. Dorsey's confession from "the effect of the prior coercion," and that Mr. Dorsey's initiation of a further discussion or his confession was not tainted by the detectives' improper conduct after he had invoked his right to counsel. I cannot say that Detectives Young and Crespo, to whom Mr. Dorsey confessed, were "beneficiaries of the pressure applied" by earlier interrogators after Mr. Dorsey invoked his right to counsel. I find it much more plausible that Mr. Dorsey acted with the benefit of a long break from contact with the detectives, rest, and time for reflection.
Collazo, 940 F.2d at 421; cf. Riley, 923 A.2d at 885 n. 17 (describing the court's satisfaction that the taint from a detective's improper remarks to the defendant after the defendant had invoked his right to remain silent was "dissipated" by a lengthy break even though "we cannot totally eliminate the possibility that [the detective] solicited" the defendant's initiation of a conversation with detectives).
Miranda v. Arizona, 384 U.S. 436, 497, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
I note also that many of the interrogation techniques that the detectives used after Mr. Dorsey had invoked his Miranda rights (such as accusations that he was lying, descriptions of the mounting evidence against Mr. Dorsey, and warnings about going to court and "roll[ing] the dice") were ones that detectives had also used early during the interrogation, before he invoked. Thus, even if the coercive effect of the detectives' techniques was not completely eliminated by the afternoon of May 8, it would be difficult to conclude that any remaining effect was from post-invocation interrogation.
Cf. Chavez v. State, 832 So.2d 730, 749 (Fla. 2002) (per curiam) (concluding that confession was voluntary where, among other things, long interrogation was followed by "a six-hour rest period," time during which defendant "was left alone for quiet reflection").
GLICKMAN, Associate Judge, dissenting:
This is the most egregious case of police disobedience to the requirements of Miranda and Edwards that I recall coming before this court during my years on the bench. During a thirteen-hour, overnight custodial interrogation, a tag team of detectives (1) subjected appellant to sleep deprivation, verbal harassment, and physical discomfort; (2) ignored his numerous attempts to assert his Fifth Amendment rights to cut off the questioning and to have a lawyer present; (3) advised appellant that his best hope would be to confess, link his behavior to his drinking, show remorse, and plead guilty to a reduced charge of simple robbery; and (4) told appellant they would keep on questioning him after they allowed him to get a few hours of sleep. When appellant at last gave in, the detectives promptly resumed his interrogation (5) without re-advising appellant of his Fifth Amendment rights or informing him that now, unlike before, they would permit him to exercise those rights; and (6) without ascertaining whether appellant would agree to waive his rights if the detectives were prepared to honor them and proceed without counsel. Echoing the script the detectives had laid out for him, appellant then confessed, linked his behavior to his drinking, expressed remorse, and said he would take the robbery charge.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
All agree that the police violated Miranda and Edwards by continuing to badger appellant to confess after he asserted his Fifth Amendment rights. It is an understatement to say the detectives did not "scrupulously honor" appellant's rights to cut off questioning and to have counsel present during his interrogation. My colleagues nonetheless conclude that the government met its burden of showing that appellant "initiated" the resumption of his interrogation after he at last was permitted to sleep for a few hours, and that appellant validly waived his Fifth Amendment rights before he confessed. I dissent from that conclusion. In my opinion, there was no genuine "initiation" for purposes of Edwards because appellant was not given a choice; rather, he was made to understand that his interrogation would continue indefinitely after he awoke and that his requests for counsel would not be honored. What the government calls an initiation by appellant was merely his capitulation. And in my opinion, there was no valid waiver as required by Miranda. Appellant could not have waived his Fifth Amendment rights knowingly, intelligently and voluntarily because the detectives made him understand that, on this occasion, those rights were inoperative. There can be no valid waiver of rights by one who is not allowed to exercise them.
I. The Overnight Interrogation
In order to determine whether appellant initiated the resumption of his interrogation and validly waived his rights, I consider it imperative not to gloss over the details of his treatment by the police. It is possible to recount those details with accuracy because appellant's interrogations were videotaped.
Appellant was arrested at about 7:00 p.m. on Saturday, May 7, 2005, brought to the Second District police station, and placed in an interrogation room. He remained in that room for thirteen hours, from around 7:25 p.m. Saturday night to 8:25 a.m. Sunday morning. He spent much of that time alone, seated in the chair to which he was handcuffed or trying to lie down on the floor to rest as fatigue and alcohol withdrawal symptoms took their toll. At intervals throughout the night and early morning, several detectives took turns interrogating him. The bulk of appellant's interrogation took place roughly from 8:20 to 10:20 p.m.; 1:45 to 2:10 a.m.; 2:25 to 3:00 a.m.; and 8:05 to 8:20 a.m.
A. The Inception: Appellant Waives His Rights and Agrees to Answer Questions — About A Different Alleged Offense
Appellant was arrested initially for an alleged assault on his girlfriend, not for the robbery of Ms. Fotopoulous in Foggy Bottom. Detectives Ross and Tabron did not mention that robbery when they advised appellant of his Miranda rights, nor for some time thereafter. Appellant read through the standard PD-47 waiver-of-rights card, commented that he was "used to" it, and agreed to answer the detectives' questions without a lawyer present. Over the next two hours, Detective Ross questioned appellant persistently about his whereabouts at the time of the robbery (which, coincidentally, was close in time to the assault on appellant's girlfriend). Appellant steadfastly denied having been in Foggy Bottom, however, even when Ross told him witnesses had seen him there, showed him a surveillance photograph of a man who looked like him, and said his DNA had been found in the vicinity of the photograph. Ross repeatedly accused appellant of lying. When Ross observed that appellant was sweating, appellant explained that he was an alcoholic and had not had anything to drink.
Appellant had been arrested over thirty times before and had ten prior convictions.
At one point, the two detectives left the room. While they were out, Detective Crespo came in and chatted with appellant for a few minutes. Crespo reminded appellant how he had helped him in the past and stated that "if there's somebody that you're going to talk to, I hope it would be me." Crespo added that he and appellant had a "mutual respect," and "I honestly think you made a mistake. I honestly think that if you're going to try to feel better about what's probably going on in your head, if there's someone you're going to talk to, it should be me."
The detectives left the interrogation room after appellant said he would submit to a DNA test only if he could "get a lawyer." When Ross returned, he confirmed that appellant was not invoking his right to counsel during the interrogation ("If you're saying you want a lawyer, I'll stop right now, I'll walk out the door. But we want to get to the bottom of this. You're saying if — to take a DNA test, you want a lawyer, is that what you're saying?"). Appellant does not contend that he had made an unequivocal invocation of his Fifth Amendment right to counsel by this point.
B. Appellant Asserts His Right to Terminate the Interrogation — to No Avail
Detective Ross returned to the interrogation room at about 9:30 p.m. He warned appellant that he was "getting ready to go at [him] hard," and he did just that. Over the next half hour, Ross pressed appellant to admit he had been in the Foggy Bottom area. Ross yelled and spoke loudly and repeatedly accused appellant of lying. He also noted again that appellant was sweating and shaking. Appellant responded that the detective's questions were "crazy." Eventually he told Ross just to lock him up and bring his supposed witnesses to court.
Around 10 p.m., Ross accused appellant of having robbed a woman in the Foggy Bottom area. This was the first mention during the interrogation of the robbery of Ms. Fotopoulous. Saying he could prove appellant's involvement in the robbery through DNA and fingerprint evidence, Ross invited appellant to tell him his "version of what happened." Within a minute, appellant said, "Let's go to court. . . . I don't know what you talking about." Over the next hour or so, Ross tried to persuade appellant to confess, and appellant insisted that he did not know what Ross was talking about. In addition, appellant reiterated over and over that he just wanted to go to court, that he was tired, and that he wanted to be returned to the cellblock and allowed to sleep. Ross did not stop interrogating appellant, however. He told appellant that his DNA would be obtained from the tissues he had used to wipe the sweat from his forehead; repeated that they needed to have "closure"; urged appellant to tell him "his side" of the story; warned him that "the wall's closing in" and that it was time for appellant to do the right thing; said going to court would serve no purpose; and asked appellant if he really wanted to go into a courtroom, face the evidence, and "roll the dice." Several times Ross left the interrogation room and returned. He explained he was "building a house" of evidence against appellant and that each time he left, he was getting "some more bricks." In response to one of those remarks, at approximately 11:15 p.m., appellant asked to "go back [to the cellblock] to sleep. Take me back now. Take me back there and put me [indiscernible]." The trial court found that appellant unambiguously asserted his right to remain silent and cut off the questioning.
C. "Shaking Like a Leaf
The interrogation continued. Ross left the room briefly, telling appellant to "[l]ay back in the chair and relax" because he would have "a minute to sleep." Upon his return, Ross discovered that appellant had urinated on himself. The detective took appellant's clothing and gave him a paper jumpsuit to wear. Appellant asked to keep his shirt because it would be cold in the cellblock, but Ross denied the request. After seizing the clothing, Ross told appellant to wait because he had "to go out, build some bricks." Appellant again asked to be taken back to the cellblock so he could get sleep. Ross offered to let him lie down on the ground in the interrogation room, handcuffed to his chair, but appellant repeated that he wanted to go back to his cell. Ross commented that appellant was "shaking like a leaf." Ross asked appellant if he wanted to talk to him; appellant said no (three times), adding that he did not care whether Ross "ke[pt] on building."
For most of the next two-and-a-half hours, appellant was left alone in the interrogation room. He spent some of that time lying on the floor, handcuffed to his chair, and some of it sitting up in the chair.
D. Detective Thompson Takes Over; Appellant Resists Further Questioning
At about 2:00 a.m., Ross returned with Detective Thompson. Ross told appellant there were "a couple more things we need to talk to you about," after which appellant could "get a little sleep." Detective Thompson then took over, questioning appellant about matters already covered by Ross. By this point, appellant was visibly tired and was mumbling his answers. When Thompson pressed appellant about the lies he allegedly had told, appellant responded, "I didn't say that. . . . I don't want to talk about it." After further questions, appellant stated, "Take me back . . . go to sleep now. Take me in the back, lock me up." The detectives continued to question appellant, saying that anyone would want to get the crime "off their chest." Dorsey answered, "Let me do it when I go to court." Again, appellant asked to "go to sleep."
E. "We'll Take a Run at This Tomorrow After You Get a Few Hours Sleep"
Eventually, Ross said, "Why don't we let you get a few hours sleep? We'll take a run at this tomorrow after you get a few hours sleep." Appellant reacted visibly to this statement and asked if he was being taken "downstairs." Ross said, "Yeah, I'll ask them to put you in a cell, is that okay? You want to do that? Because it ain't going to go away, Jimmy." Appellant murmured ". . . cellblock now and just go lay down." Ross said he was going to take "a break" and let appellant "get some rest."
F. No Rest for the Weary; Detective Thompson Tells Appellant How to "Minimize This Shit"
Despite these statements, appellant was not permitted to rest at this time, nor was he taken to the cellblock. The detectives questioned him some more and talked about how the evidence against him was stacking up. At about 2:30 a.m., Ross and Thompson left the room. After being alone there for about twenty minutes, appellant asked to make a phone call. Shortly thereafter, Detective Thompson returned and talked with appellant about possibly calling his mother.
Then Thompson told appellant he should "try to minimize this shit," because "we know it's a high profile case" and "a lot of people want to see it closed." "If you were me," Thompson said, "I would take the opportunity to kind of man up to it and say, hey, you know, I was drinking, I was, you know, I was on drugs or something," and "show some remorse." Appellant replied that he could "do that in court." Thompson explained to appellant why he should not trust court: "sometimes you go to court and then, you know, all the facts and everything's stacked up against you and you try to fight it, you know what happens." After further back-and-forth, Thompson told appellant, "[t]he way I look at shit, in every negative there's a positive. If you get [a battery] man, it's a negative side and it's a positive side. . . . [R]ight now you're on the negative end . . . [but] if you work the shit right you flip it on around to the positive side." Appellant stated there were "the courts to deal with that," but Thompson suggested that appellant did not want this particular "real strong" case to go to court. Instead, Thompson told appellant, he should plead guilty so all the evidence would not have to be presented, and then it could be "just like a robbery, a straight robbery."
G. Appellant Invokes his Fifth Amendment Right to Counsel; "You Don't Want That"
Thompson next told appellant he would "be surprised what we got" and that the evidence "continue[s] to build up." At that point, appellant stated, "I'm ready [indiscernible] I want to talk — I need to talk to a lawyer now. I've been in this joint now how long now?" In response to this request, Thompson said, "you don't want, you don't want that. Only a fool would want a judge to see all this shit. You know?"
Thompson continued to press appellant to "talk to me, own up to this shit," and appellant continued to say he wanted to "tell the court [his] side." Thompson responded that "the court is not going to be as sympathetic as I am," because this was such a "high profile case," "a different type of case." Appellant replied, "That's why I'm going to go to court." After further exchanges, Thompson said he would bring another officer into the room. Appellant repeated, "I just want to go to sleep. I don't want to fuck with him, man. I want to go to sleep." To Thompson's proposal that they "take a little break, come back in," appellant said, "I don't want to talk no more. I'm not saying nothing else." Thompson persisted, saying he still wanted appellant to give him a full statement about what happened. Appellant replied, "Nah, I already told you, I already told you that I ain't — I'm just want to lay down. I want to lay down. . . . I want to go to court. I should of just got a lawyer." Thompson offered once more to let appellant tell his side of the story, and appellant said, "I just want to lay down and go to sleep. I've been sitting up in this damn chair, man."
At around 3:00 a.m., Thompson exited the interrogation room, leaving appellant alone there for about an hour-and-a-half. Appellant spent some of this time with his head down on the table, some of it mumbling to himself, and some of it moving around in his chair. At 4:30 a.m., he asked to go to the bathroom. Detective Thompson took him there. Appellant asked when he would be taken down to the cellblock, and Thompson answered, "when we finish up what we have to do." Thompson then left appellant to sit alone in the interrogation room for another three-and-a-half hours. Appellant lay resting on the floor for part of that time.
H. "The Best Hope You Got Right Now Is to Show Remorse and Move On."
Ross and Thompson returned to the room at around 8:00 a.m. After telling appellant that it had been "a long day for everybody," Ross produced the return on a search warrant the police had executed at the address appellant had given when the detectives had asked him where he had spent the previous night. Ross asked appellant whether, after he saw what had been seized, he "still want[ed] to stay with [his] story." Appellant replied, "I ain't trying to do nothing." Ross then told appellant his whole story was "falling apart," gave him some information about a witness, and said, "[t]hey going to up the charges unless you tell the truth. The best hope you got right now is to show remorse and move on. I'm telling you the truth. Think about it. Think about it." Appellant said he was "ready to go to sleep, man."
Ross then asked for "a small scenario of what your story's going to be" when appellant went to court. Appellant answered, "I don't know. I'm ready to go back to sleep." Ross asked another officer if he wanted to talk to appellant, and appellant said, "I don't want to talk. I'm ready to go to sleep." Ross asked appellant if he had gotten any sleep the previous night; the answer was "no." Ross asked appellant if he needed anything. "Yeah, sleep," appellant replied. Saying he "sympathize[d]," Ross started to ask appellant about his girlfriend. Appellant said he was "done talking." There were some further exchanges along the same lines. Eventually appellant stopped replying at all. At around 8:30 a.m., he finally was taken from the interrogation room to the cellblock.
I. The Interrogation Resumes; Appellant "Gets It Off His Chest" to "Take the Robbery"
The police planned to resume their questioning of appellant on Sunday afternoon, when Sergeant Young from the Major Case Unit arrived at the station to participate in the interrogation. Shortly before it was to start, however, at some time between 3:30 and 4:30 p.m., appellant reportedly called out from his cell and asked to speak to Detective Ross. Ross was not available, so a different detective brought appellant to an interrogation room. Appellant then noticed Detective Crespo and called out to him, saying (per Crespo's testimony), "Crespo, I need to — I want to talk to you. I want to tell you what I did. I did it."
I rely on Detective Crespo's account, which the trial court credited, of what happened during the hiatus between the two videotaped interrogations. Appellant denied asking to speak to Ross or calling out to Crespo. He testified that he was able to sleep for about three hours in his cell, and that when he woke up, an officer asked if he wanted anything to eat and escorted him to the interrogation room. There he was confronted by Young and Crespo. At first he did not respond to their questions but, he testified, he started talking when Crespo said he would help him get released on Monday if he would take the robbery charge. The trial court disbelieved appellant's testimony.
Sergeant Young and Detective Crespo proceeded to question appellant forthwith, without re-advising him of his Miranda rights or obtaining his waiver of those rights. In response to their inquiries, appellant said that Ms. Fotopoulous had angered him earlier in the week by refusing to give him change when he asked her for it and screaming at him to go away. On the day of the incident, appellant said, he had been drinking, and a flower vendor encouraged him to rob Ms. Fotopoulous in revenge. Appellant took that advice. He followed Ms. Fotopoulous to her home, confronted her, and demanded her money. When she refused to hand it over, he hit her, held her down with his foot, and took it.
In response to the detectives' questions, appellant agreed that no one had forced anything on him and that he did not feel the detectives had made him do anything against his will. He stated that he did not know the victim was "that old," he felt "bad" about hitting her and because she was old, and he decided to say "what actually happened" so that he could "get it off [his] chest." "I ain't never done it before," appellant claimed, and he said he "fe[lt] a whole lot better now" after he finished talking. At the conclusion of the session, appellant told Detective Crespo, "so . . . don't put no whole lot of extra charges, you know . . . I'm going to take the robbery." Crespo informed appellant that he had no control over the charges, and appellant repeated, "I'll take, I'll take, I'll take the robbery you know . . . you know I don't need the assault and all that other stuff. I just want to deal with the robbery."
II. The Detectives Obtained Appellant's Confession by Violating His Fifth Amendment Rights
A. Miranda and Edwards
In Miranda v. Arizona, the Supreme Court held that police must follow certain procedures to protect a suspect's Fifth Amendment privilege against compelled self-incrimination from the "inherently compelling pressures" of custodial interrogation. Unless those procedures are followed, the Court stated, "no statement obtained from the defendant can truly be the product of his free choice." In brief, to "counteract the coercive pressure" of custodial interrogation, the police must inform a suspect before any questioning that he has both a right to remain silent and a right to the presence of an attorney. If the suspect, "at any time prior to or during questioning," invokes his right to remain silent, "the interrogation must cease." If the suspect requests counsel, "the interrogation must cease until an attorney is present." Furthermore, "[e]ven absent" the suspect's invocation of these Fifth Amendment rights, his "statement during a custodial interrogation is inadmissible at trial unless the prosecution can establish that the accused `in fact knowingly and voluntarily waived [his] rights' when making the statement." For a waiver to be valid, it "must be `voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception,' and `made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.'" Thus, "any evidence that the [suspect] was threatened, tricked, or cajoled into a waiver will, of course, show that [he] did not voluntarily waive his privilege." And the suspect must be "aware that his right to remain silent would not dissipate after a certain amount of time and that police would have to honor his right to be silent and his right to counsel during the whole course of interrogation." In other words, "the suspect [must] know[] that [his] Miranda rights can be invoked at any time."
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
384 U.S. at 467, 86 S.Ct. 1602. "The Court observed that `incommunicado interrogation' in an `unfamiliar,' `police-dominated atmosphere,' id., at 456-57, 86 S.Ct. 1602, involves psychological pressures `which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely,' id., at 467, 86 S.Ct. 1602." Maryland v. Shatzer, ___ U.S. ___, 130 S.Ct. 1213, 1219, ___ L.Ed.2d ___ (2010).
Id. (quoting Miranda, 384 U.S. at 458, 86 S.Ct. 1602).
Id.
Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602.
Id. at 474, 86 S.Ct. 1602.
Berghuis v. Thompkins, ___ U.S. ___, 130 S.Ct. 2250, 2260, ___ L.Ed.2d ___ (2010) (quoting North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)).
Id. (quoting Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986)). See also Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) ("[W]aivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege[,]").
Miranda, 384 U.S. at 476, 86 S.Ct. 1602.
Berghuis, 130 S.Ct. at 2262.
Id. at 2264 (emphasis added).
In Michigan v. Mosley, the Supreme Court emphasized that the "critical safeguard" in Miranda's framework is the suspect's "right to cut off questioning":
423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).
Through the exercise of his option to terminate questioning [the suspect] can control the time at which questioning occurs, the subjects discussed, and the duration of the interrogation. The requirement that law enforcement authorities
must respect a person's exercise of that option counteracts the coercive pressures of the custodial setting."
Accordingly, the Court concluded, "the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his `right to cut off questioning' was `scrupulously honored.'"
Id. at 104, 96 S.Ct. 321 (quoting Miranda. 384 U.S. at 474, 86 S.Ct. 1602).
In Edwards v. Arizona the Supreme Court determined that even the requirement of a knowing, intelligent, and voluntary waiver is not sufficient by itself to protect a suspect's Fifth Amendment rights once the suspect has asked for counsel; "additional safeguards are necessary." The Court accordingly added what it subsequently called a "second layer of prophylaxis," by holding that
451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
Id. at 484, 101 S.Ct. 1880.
McNeil v. Wisconsin, 501 U.S. 171, 176, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991).
when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. . . . [H]aving expressed his desire to deal with the police only through counsel, [the accused] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.
And, the Court also held, if the suspect chooses to reinitiate further communication with the police, any resumption of custodial interrogation requires that there then be "a valid waiver of the right to counsel and the right to silence."
Id. at 486 n. 9, 101 S.Ct. 1880. See also, e.g., Smith v. Illinois, 469 U.S. 91, 95, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (explaining that under Edwards, "if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked.").
In conjunction with these holdings, the Edwards Court took pains to reemphasize Miranda's earlier holding that at the time the suspect asserts his right to counsel, the interrogation "must cease." The connection between that requirement and the Edwards initiation-and-waiver requirements for any recommencement of the interrogation is clear. The "fundamental purpose" of the Edwards rule is to "preserve the integrity of an accused's choice to communicate with police only through counsel, by preventing police from badgering a defendant into waiving his previously asserted Miranda rights." The premise of the rule is that, once a suspect asks for counsel, "subsequent requests for interrogation pose a significantly greater risk of coercion" stemming "not only from the police's persistence in trying to get the suspect to talk, but also from the continued pressure that begins when the individual is taken into custody as a suspect and sought to be interrogated — pressure likely to increase as custody is prolonged." "The Edwards presumption of involuntariness ensures that police will not take advantage of the mounting coercive pressures of prolonged police custody, by repeatedly attempting to question a suspect who previously requested counsel until the suspect is badgered into submission." In other words, the suspect must understand that he has a genuine, unconstrained choice whether to permit further interrogation or not; he must "know[] from his earlier experience that he need only demand counsel to bring the interrogation to a halt." Otherwise Edwards's suspect-initiation-and-waiver requirement cannot serve its intended purpose; it would be meaningless or illusory.
Edwards, 451 U.S. at 485, 101 S.Ct. 1880 (quoting Miranda, 384 U.S. at 474, 86 S.Ct. 1602).
Maryland v. Shatter, ___ U.S. ___, 130 S.Ct. 1213, 1220, ___ L.Ed.2d ___ (2010) (internal quotation marks, brackets, and citation omitted).
Id. (internal quotation marks omitted). "It is easy to believe that a suspect may be coerced or badgered into abandoning his earlier refusal to be questioned without counsel in the paradigm Edwards case," the Court added, "in which the suspect has been arrested for a particular crime and is held in uninterrupted pretrial custody while that crime is being actively investigated. After the initial interrogation, and up to and including the second one, he remains cut off from his normal life and companions, thrust into and isolated in an unfamiliar, police-dominated atmosphere, where his captives appear to control his fate." Id. (internal quotation marks and citation omitted).
Id. (internal quotation marks and citations omitted).
Id. at 1221.
Consequently, where the police have disregarded a suspect's assertion of his Fifth Amendment right to counsel by continuing his custodial interrogation in counsel's absence and "persisting in repeated efforts to wear down his resistance and make him change his mind," and thereby have conveyed to the suspect that he has no real choice whether he will be interrogated further, Edwards's preconditions for the resumption of the interrogation cannot be met (unless adequate curative measures are taken). As the Eleventh Circuit has explained,
Michigan v. Mosley, 423 U.S. 96, 105-06, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).
Although
Edwards permits further interrogation if the accused initiates the conversation, the validity of this waiver logically depends on the accused being free from further interrogation. In other words, the "initiation" must come prior to the further interrogation; initiation only becomes an issue if the agents follow
Edwards and cease interrogation upon a request for counsel. . . .
Edwards would be rendered meaningless if agents were permitted to continue interrogation after the request for counsel, and then claim that the consequent response by the accused represented initiation and permitted a waiver of the asserted counsel right.
B. The Violations of Appellant's Fifth Amendment Rights
It is undisputed that the detectives violated appellant's Fifth Amendment rights during his initial thirteen-hour overnight interrogation. The Miranda violations were flagrant: the detectives used a variety of improper means as they tried to coerce a confession from appellant. Not only did the detectives persist for hours in questioning appellant and urging him to change his mind despite his repeated assertions of his rights to cut off questioning and to have an attorney present. And not only did they verbally abuse him, deprive him of sleep, ignore his symptoms of alcohol withdrawal, isolate him, keep him handcuffed to a chair for hours, and otherwise subject him to physical and mental discomfort and stress. Appallingly, the detectives also disparaged his exercise of his constitutional rights to counsel and a trial as contrary to his best interests, misled him regarding the benefits of confessing, threatened him that "they" were going to "up the charges" if he did not tell the truth, and even — in their zeal to extract a confession in this "high profile" case — fed him what he should say ( e.g., "say, hey, you know, I was drinking, I was, you know, I was on drugs or something"; "show remorse") regardless of its truth. This was "badgering" with a vengeance. By any measure, the coercion exerted on appellant to waive his constitutional rights and confess was extraordinary. Had appellant given in at 8:30 a.m. on Sunday morning, there is no doubt his confession should have been suppressed.
Appellant did not give in at 8:30 a.m., of course. Exhausted, he took the opportunity to sleep for a few hours first; then he gave in. The issue before us is whether, despite the earlier Miranda violations, appellant validly initiated the resumption of his interrogation within the meaning of Edwards and validly waived his Fifth Amendment rights. In my view, the government has not carried its burden of showing that appellant did either of those things.
The government has not shown a genuine "initiation" by appellant, because he was afforded no choice in the matter: he remained in the detectives' custody, they told him their questioning would continue when he awoke (whether he liked it or not), and their earlier conduct made clear to appellant that he could not prevent or terminate his further interrogation by asserting his Fifth Amendment rights. What he had to look forward to, therefore, if he continued to resist, was more of the same obnoxious, coercive, and seemingly unending harassment that he had endured for thirteen hours. The fact that appellant chose to surrender and to avoid putting himself through the ringer again shows only that the detectives' badgering succeeded in overcoming his will; it hardly establishes that appellant chose of his own volition to initiate further communication with the police.
For much the same reasons, in my view, the government has not met its burden of showing that appellant knowingly, intelligently, and voluntarily waived his Fifth Amendment rights. It is utterly immaterial that appellant was aware of his rights in the abstract and knew enough to try to assert them. When he actually and repeatedly did assert his rights, his assertions were ignored. In this "high-profile" investigation, Detectives Ross and Thompson made appellant understand, he had no Fifth Amendment rights that he could assert effectively. It is, again, immaterial that the detectives to whom appellant confessed may not have known he had asserted his Fifth Amendment rights. The important point is that when appellant's interrogation recommenced, Detective Crespo and Sergeant Young did not tell appellant they now were prepared, despite the prior violations by Detectives Ross and Thompson, to honor his rights if he chose to assert them. They did nothing to lead appellant to think that, at long last, his rights would be honored; nor anything to remedy their predecessors' other coercive and misleading interrogation tactics. Because the police made it clear to appellant that he was powerless to exercise his Fifth Amendment rights, he could not knowingly, intelligently or voluntarily waive them so long as he was in their control. A purported waiver of the "right to cut off questioning" cannot be deemed a knowing and intelligent choice where the suspect is led to believe he cannot exercise that right; it cannot be deemed a voluntary choice where the suspect is led to believe he has no choice.
As the Supreme Court explained in Arizona v. Roberson,
[W]e attach no significance to the fact that the officer who conducted the second interrogation did not know that respondent had made a request for counsel. In addition to the fact that
Edwards focuses on the state of mind of the suspect and not of the police, custodial interrogation must be conducted pursuant to established procedures, and those procedures in turn must enable an officer who proposes to initiate an interrogation to determine whether the suspect has previously requested counsel.
486 U.S. 675, 687, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988).
Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (quoting Miranda, 384 U.S. at 474, 86 S.Ct. 1602).
Furthermore, in evaluating whether appellant validly waived his Fifth Amendment rights, we may not ignore all the other grave abuses perpetrated during his overnight interrogation. The fact that appellant was able to withstand those abuses during his prolonged incommunicado interrogation for as long as he did is hardly evidence, as my colleagues take it to be, that his eventual confession flowed from a constitutionally valid waiver of his rights — not when there was never a break in appellant's custody; he knew his interrogation was slated to resume; and he had every reason to apprehend that his interrogators would continue to run roughshod over his rights. The government's claim that the coercive effects of those abuses on appellant subsided with a few hours' sleep in the station house cellblock is neither plausible nor supported by any evidence. That appellant appeared refreshed after his rest does not mean he was uninfluenced by his earlier mistreatment. The detectives did nothings dispel the coercive effects of their misconduct or to correct the misinformation they furnished appellant to induce him to confess.
Lastly, it is unpersuasive to argue that appellant's initiation and waiver were valid because he acted out of remorse for having assaulted and robbed an elderly woman. The evidence shows that appellant's expressions of remorse were simply the product of the detectives' violation of his rights. It was after appellant unsuccessfully invoked his right to cut off the questioning that the detectives improperly honed in on the serious and inflammatory circumstances of the robbery and counseled appellant to show remorse in order to "flip it on around to the positive side." Indeed, it is striking how appellant parroted what the detectives instructed him to say. They told him his "best hope" was to show remorse and that anyone in his position would want to get the crime "off their chest." When he confessed, appellant reiterated that he felt "bad" and decided to "get it off [his] chest." Detective Thompson told him to say he was drinking and try to "minimize" the offense. When appellant confessed, he said he was drinking and offered other facts in extenuation ( e.g., the victim had offended him, a bystander told him to rob her (after he had been drinking), he did not know she was "that old," and he had never committed such a crime before). If appellant followed his advice, Detective Thompson told him, he would be able to plead guilty to only "a straight robbery." When appellant confessed, he repeated that he wanted to "take the robbery" and did not "need the assault and all that other stuff." Appellant's expressions of remorse may have been genuine, but they fail to prove the validity of his initiation and waiver.
For the preceding reasons, I dissent from my colleagues' conclusion that appellant knowingly, intelligently and voluntarily waived his Fifth Amendment rights, and that his confession was the "product of a free and deliberate choice rather than intimidation." Ante at 234. In my view, the record shows exactly the opposite.