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Question first, warn later

On September 22, 1993, Archie Dixon and Tim Hoffner beat Christopher Hammer, stole his wallet and car, then drove him to a remote area and buried him alive.  Dixon sold the car, which was a mistake:  the police located it and traced the transaction back to him.  When Dixon came to an impound the lot to retrieve a friend's car, he was met by detectives who gave him Miranda warnings and said they wanted to talk to him.  He told them he wanted to speak with an attorney. 

Dixon was arrested a week later on a forgery case, and questioned at the police station for four hours; he made incriminating statements about the forgery, but denied any knowledge of Hammer's disappearance.  The police didn't give Miranda warnings on this occasion, deliberately so:  they'd concluded that if they did, Dixon would ask for a lawyer.  One of the detectives told Dixon that if he did have anything to do with Hammer's death, now was the time to say so, before Hoffner, whom the police also suspected, cut a deal:  "It's kind of like a bus is leaving. The first one that gets on is the only one that gets on."

Right after that, the detectives learned that Hammer's body had been found, and went in for another shot at Dixon.  He volunteered that he'd heard the body had been found, and had talked to his lawyer, who told him to tell the police what happened.  He did, and was ultimately convicted of aggravated murder.  The only bus he got on was the one which transported him to death row.

Last week, in Dixon v. Houk, the 6th Circuit granted habeas relief to Dixon, finding that the police were a tad too clever in their interrogation techniques.

At issue was a police interrogation tactic known as question-first, warn-later:  the police will elicit sufficient incriminating details before giving warnings, then Mirandize the defendant and get a full confession.  This tactic became commonplace after the Supreme Court's 1985 decision in Oregon v. ElstadIn that case, the police went to arrest Elstad for a burglary, and while one officer took Elstad's mother into the kitchen, another remained in the living room with Elstad and asked him if he knew why the police were there.  He said he'd heard about a robbery at a neighbor's, and the officer said he believed Elstad was involved in that, at which point Elstad said, "Yes, I was there."  He was taken back to the station, Mirandized, and made a  full confession.  He argued that the confession was a "fruit of the poisonous tree" -- his unwarned statement at the house -- and the Oregon courts agreed.

The Supreme Court didn't.  The fruit of the poisonous tree doctrine forbids the use of evidence which has been obtained as the result of a constitutional violation.  Miranda warnings aren't a constitutional right, though.  They're what is referred to as a "prophylactic rule"; like the exclusionary rule for the 4th Amendment, they're a method of ensuring enforcement of the 5th.  The Court concluded that Elstad's original admission was voluntary, and that any taint caused by the failure to administer warnings before he made it was removed by the warnings given before he made his full confession.

The Elstad opinion is somewhat muddled, but the effects of it became crystal clear; as the Supreme Court acknowledged in 2004 in Missouri v. Siebert, it had become de rigueur for police to conduct the unwarned interrogation, and then Mirandize the defendant before obtaining the written or audio-taped confession.  In fact, at Siebert's trial, an officer testified that "the strategy of withholding Miranda warnings until after interrogating and drawing out a confession was promoted not only by his own department, but by a national police training organization and other departments in which he had worked."  (Note that the un-Mirandized statements aren't admissible, but become irrelevant in light of the admissiblity of the confession given after the warnings.)  The Court tossed Siebert's confession, ruling that "strategists dedicated to draining the substance out of Miranda cannot accomplish by training instructions what Dickerson held Congress could not do by statute."  (In Dickerson v. US, the Court had voided a statute which proposed to nullify Miranda.) 

Siebert didn't overrule Elstad, though; the plurality made efforts to distinguish it, and Kennedy, who concurred in judgment, said that Elstad would still apply unless the police followed a deliberate two-step strategy.

So where did this leave Houk?  Closer to Siebert than Elstad, the 6th Circuit decided. Central to the court's decision was not only that the police had deliberately decided not to give warnings before the first custodial interrogation, but that the trial court, which had originally suppressed the confession, found the police weren't telling the truth about their claim that Houk had told them he'd talked to his lawyer and his lawyer had advised him to tell the police what happened.  (The state made an interlocutory appeal to the 6th District, which reversed the suppression and sent the case back for trial.)   Although the Ohio Supreme Court had found to the contrary in affirming the conviction and death sentence, the court has a point in noting that the trial judge was in the best position to make that determination, given its ability to hear and see the witnesses, and besides, no attorney in his right mind would have ever given that advice.

It certainly leaves Houk in a much better position than his partner in crime.  The 6th Circuit rejected Offner's appeal from the denial of habeas relief three months ago, and he remains on death row.


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