Martian: Greetings, Earthling. I am Professor tg/46# of the Inter-Galactic School of Law. Your Constitution and case law are stored in my lower P-5b. I hear a Manhattan judge has just found the confession of a mentally ill man voluntary, even though he was interrogated for six hours without Miranda warnings.
Appellate Squawk: Oh yes, the Etan Patz case. A 6-year old who disappeared in 1979 and was never seen again. A couple of years ago it was in all the headlines that they were excavating a basement for clues. Nothing was found, but the publicity brought a bunch of people out of the woodwork saying that their mentally disabled relative Pedro Hernandez told them 30 years ago that he’d chopped up the boy’s body.
Martian: I assume the police took this reliable information to a judge and obtained a warrant for the man’s arrest?
A-S: Not exactly. An arrest warrant would mean that Mr. H’s right to counsel would attach.
Martian: Indeed, it is a sign of a high civilization that your Constitution guarantees every accused person the right to counsel.
A-S: Um, well, the police feel they have the right to question suspects before some pesky lawyer interferes. So they’ve devised a way of getting around it.
Martian: You don’t say! It must be an extremely devious and subtle ruse if it can fool the courts.
A-S: Yes, they go to the suspect’s house and ask if he wouldn’t mind coming with them to the precinct to answer a few questions.
Martian: But of course they make sure he understands he’s not obliged to come. Especially, I should imagine, if they know he’s mentally disabled.
A-S: No, they just testify at the suppression hearing that “he voluntarily agreed to come with us.” And that’s enough for the court.
Martian: Ha, ha, ha, you’re pulling my legs. Your own Court of Appeals says if the prosecution relies on consent they have a heavy burden to show it was voluntary and not just submission to authority. By what sensitive and nuanced analysis did the court arrive at the conclusion that Mr. H. voluntarily agreed to go to the police station?
A-S: A widely-used analysis called ignoring the question. According to the decision, nine cops and detectives showed up at Mr. H’s home at 7:30 in the morning and said they wanted to take him from New Jersey to New York to ask him about “an old missing person case.” They patted him down and took his keys, wallet, cell phone and pill case. They told his wife to pack up his meds – including anti-psychotic meds – because he’d be gone awhile. His wife told them he was “unstable and needed someone to stay with him.”
(Martian shuts down).
A-S: (in a panic) What happened? Where’s your reboot button?
Martian: (coming to). Sorry, my system just couldn’t handle the contradictions. Nine law enforcement authorities at the door? Isn’t that a major police action? Isn’t taking an Earthling’s keys, wallet and cell phone from his pocket a clear assertion of control over his person? Quite apart from mental disability, why would anyone think they could refuse to go with the police without simply being hauled away in a less polite fashion?
A-S: Unfortunately our system has no problem with contradictions. The court found it highly relevant that some of fuzz were wearing suits.
Martian: Aha! Perhaps I overlooked a crucial factor. A suit symbolizes. . . what, exactly?
A-S: That it’s a very important cop.
Martian: All the more pressure to submit, I’d have thought.
A-S: The court also noted that there was an exit sign in the police station.
Martian: Now we’re cooking with gas! An exit sign indicates freedom to come and go?
A-S: No, it just means there’s a door.
Martian: (sighing) Well, if the court didn’t consider whether Mr. H.’s consent was voluntary, what did it consider?
A-S: It shifted the burden to Mr. H. to show he was in custody. Defined in New York as whether “a reasonable person innocent of any crime who would feel free to leave.”
Martian: I hope you don’t mind if I point out that’s not the Supreme Court test. It’s whether a reasonable person in the defendant’s circumstances would feel free to end the questioning and leave. Nothing about having to be innocent.
A-S: Makes no difference. The test as applied is what the judge would do if he or she were in that position. And since the judicial temperament tends to be somewhat self-assertive, they can’t imagine anyone not feeling free to leave unless actually chained to the wall, and even then –
Martian: But it says here that Mr. H. actually said he wanted to go home! Three times! And he asked to speak to his wife but the police said only if he first told them what he wanted to say. That isn’t custody?
A-S: No, because they gave him lunch.
Martian: What’s that got to do with custody? They give lunch to prisoners, they’re still in custody.
A-S: And “at no time was the questioning accusatory.”
Martian: Not accusatory? They showed him a “missing child” poster of Etan Patz and asked if he had anything to tell them. They said it wasn’t his fault and he’d feel better if he told “the truth.” Surely when the police say “the truth” is that you did away with a child, you wouldn’t think you could just get up and walk out?
A-S: Well, the cops kept telling him he was there voluntarily, so he must have been. And since his confession after six hours of interrogation without Miranda warnings was perfectly voluntary, he’ll probably be convicted even though there’s no other evidence.
(Martian shuts down again).
A-S: Take it easy! Maybe in 20 years the real killer will come forward, just like in the Central Park jogger case. Then the Manhattan DA’s Office can show their deep concern for wrongful convictions.
(Martian refuses to reboot).
The People of the State of New York Plaintiff v Pedro Hernandez Defendant 4863 12 _ New York Law Journal