I dislike subtitles but if I were to use one for this Article, it would be “Facing Miranda’s Consequences.” It is one kind of judicial act to decide that suspects should know that they do not have to answer police questions posed during custodial interrogation; this led the Supreme Court to require Miranda warnings. It is a very different kind of judicial act to stay true to that doctrine when faced with a truly horrific crime that could go unpunished if Miranda were slavishly followed. Recall Justice White’s dark prediction in his Miranda dissent: “In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.”
A case of the type predicted by Justice White arose in Des Moines, Iowa on Christmas Eve, 1968, only two years after Miranda was decided. A ten-year-old girl, Pamela Powers, was abducted while in public with her parents. She was repeatedly raped; semen was found in her mouth, her vagina, and her rectum. She was strangled to death. When the case reached the Supreme Court in 1976, it gave the Court a chance to reaffirm its support for Miranda. But staring in the face of the most dreadful consequences of its Miranda decision, the Court in Brewer v. Williams blinked and decided to reverse the conviction by expanding Massiah v. United States beyond its original scope. Miranda could be safely ignored.
Massiah was a Sixth Amendment right-to-counsel case of limited scope that Brewer caused to overflow its banks like a raging river. Sherry Colb recognized, in a FindLaw column in 2001, that Massiah had escaped its banks and called for the Court to put it back where it belonged. In 2009, the Court obliged.
Massiah was decided in 1964, Miranda in 1966. In Massiah, the Court held that the Sixth Amendment right to counsel was violated when an undercover federal agent elicited incriminating statements from an indicted defendant in the absence of his lawyer. Because the agent’s elicitation of Massiah’s statement was surreptitious, it provided protection beyond what Miranda provided two years later. Miranda requires that suspects experience custodial interrogation before warnings are necessary. Thus, Massiah and Miranda could be viewed as complementary protections when law enforcement officers seek incriminating statements. Massiah prohibited undercover officers from seeking statements from indicted defendants while Miranda provided protection when police engaged in custodial interrogation of suspects. It was a logical, neat package.
But then came Christmas Eve, 1968, in Des Moines, Iowa.
To read this Article, please click here: Sherry Colb, Massiah, and Miranda.
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