An interesting case before the Supreme Court this time around offers an interesting question: when does the “Miranda Rights” warning expire?

Miranda, of course, is the famous case that gave us the famous warning-to-all-people-being-arrested that begins “You have the right to remain silent…” The followup case, Edwards V. Arizona, established that anything said after you say “I want a lawyer” can’t be admitted to court unless it is proved that your lawyer was right next to you, in the room, during any subsequent police interrogation.

This time around, we get Maryland V. Shatzer. The bare-bones are: a suspect was in jail. A police detective came to interview him, read him his rights, the suspect said “I want my lawyer”, and the detective simply closed up the case rather than spend the time getting the lawyer present. Two years and 7 months later, a different police detective turns up, reopens the case, goes to the prison, interviews the suspect, reads him his rights again, and begins “interrogating” the guy without a lawyer present, eventually getting him to waive his right to counsel and getting an admission of another crime out of him.

The case is interesting on two points. The first point is how long a “Miranda warning” lasts, the second is possible ways police could try to get around it. Under the initial Edwards test, from the moment a suspect invokes the right to counsel, and as long as they are “in custody”, the police may not speak with them (at least to get admissible evidence) without a lawyer present, and requires a “re-reading” of rights if they “break custody” and then bring them back for another interview. So (for example), the police can’t read you your rights and then hold you in custody for a week after you ask for a lawyer, constantly bringing you back for an “interview” every hour or two and badgering you to waive your previous exercise of your right to counsel. They can, however, read you your rights, say “we’re done, you can go home” when you ask for a lawyer, send you home, and then call you back in (say, a week or a month later) for another “interview” and ask you to waive your right to counsel again as long as they have broken the “chain of custody” in the meantime. They also can get your lawyer in the room, yell, scream, lie, and otherwise badger you (with your lawyer likely constantly telling you “don’t answer that”), and pretty much do whatever they want hoping to provoke a reaction and a statement that they could use, with your lawyer then being “under the gun” to convince a judge to throw any statement you made in his presence out on the grounds of coercion.

The police in Maryland are claiming that the original canceled interview, and the new one, constitute this break in “custody.” The problem for them (at least for a lawyering perspective) is that this guy was sitting in prison the whole time, “in the custody” of the state. Yes, he might not have been in the lockup of that one specific precinct, but as far as his lawyers are concerned, he was in jail – movement restricted, access to even his own lawyer restricted, etc. From their perspective, the second police detective had no right to show up (even a couple years later) and conduct a second interview without the guy’s lawyer present.

As a thought experiment, it’s supremely interesting. The question of “chain of custody” between police jail, and county/state lockup, is odd – saying the police had “broken custody” on those grounds could lead to police simply transferring suspects over to a neighboring county lockup, then badgering them there, in order to get around an exercise of right-to-counsel. The question of police trying to reopen an old case – and launching a new “interview”, with a new reading of rights, while not paying attention to previous directives from the suspect – is dodgy at best. The underlying real “nasty tactic” which seems to be legal, would be the police letting someone go home and then showing up the next morning to arrest and “interview” them each day until they finally gave up their right to counsel, though it seems any competent lawyer at trial ought to be able to quickly get that tossed out on grounds of coercion, harassment, and abuse of police powers.

Fairly warned, the case is unlikely to have any aid in its defendant; indeed, one of the tenets of legal thought (“easy cases make bad law”, with its necessary corrolary “hard cases also make bad law”) comes to mind. The problem? The guy is serving time for “sexual abuse of a child”, according to the court docket, and the subsequent interview and the crime he supposedly admitted to (with the level of officer-badgering unknown and no lawyer present) is sexual abuse of another child, and the reopening of the case was prompted by his wife (or possibly ex-wife, court documents sometimes being vague and referring to things as they were “at the time of offence” rather than current situation). This makes him, as defendants go, roughly as unsympathetic as can be. The Supreme Court is theoretically pretty good about setting aside the idea of the unsympathetic defendant (especially given that they only see the lawyers for each side) but it’s a crime that tends to raise emotions regardless.