Court questions N.C.'s position on Miranda warning

Supreme justices pounce at once

Washington correspondentMarch 24, 2011 

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N.C. Attorney General Roy Cooper

TAKAAKI IWABU — newsobserver.com

— N.C. Attorney General Roy Cooper made his first appearance before the U.S. Supreme Court on Wednesday, arguing a case that could determine whether police officers ought to consider a young suspect's age before deciding whether to read the Miranda warning.

The Supreme Court justices must decide whether children, by their very nature, are more likely than an adult to feel restrained when being interrogated - and should therefore be more likely to be read their rights. Those include the right to remain silent and the right to call an attorney.

The argument centers on the question of custody. Under court law, if a "reasonable person" would feel free to leave while being questioned by police, the rights need not be read.

"We're requiring children to be someone they never could be, and that's reasonable adults," said Barbara S. Blackman of the N.C. Appellate Defender's office, which brought the case to the Supreme Court on behalf of the juvenile, known only as J.D.B.

The court's decision won't come down for months, but justices' views often can be gleaned from their queries. And in the free-wheeling way of a Supreme Court argument, each lawyer received just a few seconds of opening time before the questions began. Cooper and Blackman were by turns peppered during the hour-long argument.

Justice Samuel A. Alito Jr., for example, wondered whether the situation would be different depending on the suspect's age.

"Make him 16. Or make him a streetwise 17-year-old," Alito said.

"A judge should be able to consider that..." she began.

But Justice Antonin Scalia interrupted. "When a policeman sees him he's dressed in baggy jeans, you know, down around his thighs, and when a judge sees him he's in a Buster Brown jumpsuit," he said. "You don't really think that it's going to be equivalent?"

She paused: "I'm not sure I understood the question."

A child's confession

The case, J.D.B. v. North Carolina, arises out of a larceny charge in Chapel Hill. A juvenile police detective went to the 13-year-old's school after a neighborhood break-in, had him pulled out of class and questioned him in a conference room with four adults.

The child confessed to the break-ins, and was later charged. He never was read his Miranda rights.

Cooper, arguing for the state, warned that forcing officers to consider a suspect's youth would "turn Miranda upside down" and put too great a burden on law enforcement.

"That's what this case is all about: keeping Miranda simple and effective," Cooper said later.

He pointed out that juveniles already have rights that consider their age once a case reaches court. Then, prosecutors must submit to a process known as the "voluntariness" test, in which a judge decides whether the confession was truly voluntary.

"Age fundamentally changes the 'reasonable person' test," Cooper told the high court. "It makes it complex."

Vocal sparring in court

Cooper was questioned sharply by Justice Stephen Breyer, who wondered whether a police officer would consider other factors - a physical sensory disability such as blindness or deafness - in determining whether someone would feel free to leave. What, he wondered, if a person in a wheelchair faced a flight of steep stairs?

In those cases, he was told, officers would consider the circumstances.

"Ukrainian. He only speaks Ukrainian," Breyer continued. "Do you take that into consideration?"

"Yes," Cooper answered.

"Then why aren't you willing to take into account an ambiguous situation?" Breyer asked.

"Your honor, because those are obvious circumstances," Cooper responded. In a juvenile's case, he said, "you have to think like an 8-year-old, or think like a 15-year-old."

Breyer shot back: "You have to think like a Ukrainian speaker or like a person in a wheelchair!"

And at one point Breyer referenced a dissenting opinion he had written recently on another juvenile case.

"You know the sentence I'm referring to in my dissent?" Breyer asked.

Cooper stared blankly, and Scalia came to the rescue.

"Some people don't read the sentence. He may not have read it," Scalia quipped. The courtroom laughed.

The question of age

Justices Ruth Ginsburg and Elena Kagan also seemed skeptical of arguments that officers don't always know the age of a suspect.

Ginsburg pointed out that in this case, the officer was a juvenile detective visiting a suspect at a middle school. "It's not a mystery," she said.

But other justices urged caution, especially in questioning Blackman, who argued the case on behalf of J.D.B.

Chief Justice John Roberts wondered whether any age difference is needed.

"Why not say, 'Look, we've got one strict rule,' " Roberts said. "Everyone knows it. You hear it on TV all the time."

Scalia later asked rhetorically why the Miranda warning isn't read with every interrogation. He answered his own question:

"We want confessions, don't we? And Miranda warnings deter confessions," Scalia said. "We want the bad guys to confess."

The U.S. Supreme Court's decision in the case is expected later this year.

bbarrett@mcclatchydc.com or 202-383-0012

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