Monday, August 3, 2009

Another wrinkle on the right to remain silent

I wonder if the Supreme Court justices who issued their landmark rulings on the right to counsel in the 1960's knew that 40 years later the courts would still be untangling the meaning of the Sixth Amendment (and the Fifth Amendment). The Second Circuit has issued another ruling that places a wrinkle on the right to remain silent after a criminal suspect asks for a lawyer.

The case is United States v. Plugh, decided on July 31. Plugh was being questioned about his alleged child pornography. The agents had found child pornography on his computer hard drive. When they handcuffed Plugh, he was read his rights under the Fifth Amendment ("you have the right to remain silent, etc.") and they asked him to sign an "advice-of-rights" form which would have waived his right to an attorney and allowed the agents to ask him more questions.

Plugh responded, “I am not sure if I should be talking to you,” and “I don’t know if I need a lawyer.” Plugh did not sign the waiver form and stated that he did not want to sign anything at that time. As the agents drove Plugh to FBI offices in Rochester, N.Y., they told him he was about to be arrested on child pornography charges. Plugh asked what he should do. They told him that if he cooperated they would let the U.S. Attorney's office know about it. At the FBI offices, the agents placed Plugh in a booking room and told him that “[i]f he wanted to make any statements this was the" time to do so. Plugh said he would talk and the agents read him his Miranda rights. Plugh did not again ask for a lawyer. He began talking and incriminated himself. The district court suppressed Plugh's statements, and the Court of Appeals affirms.

Here are the issues: "whether Plugh retained his right to remain silent and his right to counsel by refusing to sign the advice-of-rights form when asked by Agent McArdle to sign the form if he agreed with its contents, notwithstanding his statements immediately prior that he was not certain he wanted to talk to a lawyer or that he should talk to the interrogating agents." The Court of Appeals (Wesley and Hall with Jacobs dissenting) rules in Plugh's favor.

It seems there are cases interpreting in nearly every context the Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel. This is because all kinds of things happen right before a suspect begins to talk. While Plugh's suggestion that he might need a lawyer was equivocal and did not prevent the agents from speaking to him further, it was his refusal to sign the waiver that confirmed that he was clearly invoking his rights under the Sixth Amendment and that the agents had no right to continue asking him questions. If the suspect is not clearly invoking the right to counsel, the police may ask follow-up questions. Without the waiver form, the police did not break the rules. But once Plugh decided not to formally waive his rights, the police went to far in continuing to speak with him.

As the Second Circuit puts it, "While Plugh’s statements, 'I am not sure if I should be talking to you' and 'I don’t know if I need a lawyer,' appear ambiguous, Plugh’s ultimate action – his refusal to sign – constituted an unequivocally negative answer to the question posed together by the waiver form and McArdle, namely, whether he was willing to waive his rights." This is especially so because the agent told Plugh, “[i]f you agree with the statement you can sign the form.”

Chief Judge Jacobs dissents. He writes that there was nothing unequivocal about Plugh's actions. "All of the circumstances here--Plugh’s oral statements as well as his refusal to sign a waiver--bespeak indecision and ambiguity." Citing Fifth Circuit authority, he goes on to reason, "'[a] refusal to sign a waiver may indicate nothing more than a reluctance to put pen to paper under the circumstances of custody.' If a suspect’s refusal to sign a written waiver can be enough to bar police from asking any further questions, regardless of whether the suspect is willing to talk to police, then police will simply stop using written waiver forms. Why take the risk that a suspect won’t want to put pen to paper? The result will be a return to the very confusion and uncertainty regarding a suspect’s invocation of rights that written waivers were designed to overcome."

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