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Court Considers Legality of Police-Rehearsed Confessions

Two cases explore Miranda rights

By Richard Willing, USA TODAY

WASHINGTON -- Allowing police to practice confessions with suspects before reading them the Miranda warning would strip suspects of their constitutional protection against self-incrimination, a lawyer for a Missouri woman told the Supreme Court last Tuesday.

"The tactic (of rehearsed confessions) is used to undermine the exercise of free will," Amy Bartholow, a public defender in Columbia, Mo., told the court.

''I guarantee if the court says this practice is OK it will become embedded in police practice, like Miranda,'' she said.

The Missouri case and a Colorado case raise the question of how far police can stretch the familiar warning that begins, ''You have the right to remain silent.'' The warning, first devised by the court in 1966, is read to people questioned while in police custody and includes the right to have a lawyer present and to be told that statements can be used against a person in court.

In the Missouri case, police in 1997 had interviewed arson-murder suspect Patrice Seibert, drawing out details of the fire she set to cover up the death of her son. After that, police read Seibert her Miranda rights and got a second confession by relying on the details they had learned in the first. The Missouri Supreme Court ruled that the second confession was coerced and overturned Seibert's murder conviction.

In the Colorado case, police did not read a full Miranda warning to Samuel Patane after arresting him in 2001 on suspicion of violating a restraining order. Patane told them he had a pistol in his house, which police found and used to convict him of a federal firearms violation. The U.S. Court of Appeals for the 10th Circuit reversed Patane's conviction, holding that it was only discovered because police had violated his Miranda rights.

During arguments, Chief Justice William Rehnquist noted that the court had re-visited its Miranda vs. Arizona ruling ''40 or 50 times'' since 1966. Some of those cases created exceptions in which police are allowed to use statements, witnesses and evidence obtained from suspects who have not been given their rights. Another, in 2000, affirmed that Miranda was a constitutional right and not merely a rule governing what can be used as evidence in court.

Tuesday's cases are not the last Miranda cases to be taken up by the court. Another is due to be argued today and another next year. In each case, the court is attempting to determine how Miranda applies to new police situations.

Regarding the Missouri and Colorado instances, lawyers for the government said the police practices in both cases are permitted under Miranda.

Deputy Solicitor General Michael Dreeben argued that Miranda prohibits police from using in court any statement given without a Miranda warning. Patane's statement was not used in court; only the gun was, Dreeben said.

Karen Mitchell, Missouri's chief deputy attorney general, said that a 1985 Supreme Court case from Oregon permitted suspects to confess, receive their Miranda warning then agree to confess again, provided only the second confession was used. That, she said, means that Seibert's post-Miranda confession should have been allowed.

But several justices were skeptical, especially of the tactic used by police to get Seibert to confess a second time. They said that in the 1985 case that Mitchell cited, police accidentally failed to give a suspected burglar a Miranda warning and questioned him only briefly.

In the Seibert case, Justice David Souter said, police used ''systematic interrogation.'' That made it more likely, he said, for a suspect to waive the right to silence and confess again after the Miranda warning was given.

Justice John Paul Stevens worried that if the police practice in the Missouri case was upheld by the court ''all police departments would adopt a rule that they don't give a warning until after (suspects) confess.''

But the court appeared divided not only on the merits of the two cases but also on the meaning of the Miranda warning itself.

Justice Ruth Bader Ginsburg said she ''thought (police) had to give warnings when they take a person into custody.''

Chief Justice William Rehnquist, who wrote the 2000 decision affirming Miranda's constitutionality, said the warning was required only if the statement police sought was going to be introduced at trial.

Decisions are expected before the court adjourns next summer.

Also Tuesday, the court ruled 7-2 to allow Virginia to build a 725-foot pipe into the Potomac River to draw water for commercial use. Maryland had protested, arguing that 18th- and 19th-century agreements set its border with Virginia at the shoreline on the river's Virginia side.

Chief Justice William Rehnquist, writing for the majority, said the agreements did not give Maryland a right to regulate Virginia water projects.

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