Over at Crimlaw, Ken has a very funny post regarding "New Regulations for the Hunting of Attorneys." My favorite is:

It shall be illegal for a hunter to disguise himself as a reporter, drug dealer, pimp, female legal clerk, sheep, accident victim, bookie, or tax accountant for the purpose of hunting attorneys.

The Supreme Court issued two much-awaited decisions regarding the remedy for certain types of evidence gained as a result of a Miranda violation. Following is my summary and analysis of these opinions, which have been somewhat lost in the noise generated by Blakely and the detainee cases.

In United States v. Patane, the police pick up Patane, who they suspected had been in possession of a firearm, despite the fact that he was a convicted felon and such possession was thus unlawful. The detective begins to read Patane his rights. Patane interrupts and tells him he knows what his rights are. Without attempting to complete the warning, the cops ask Patane where the Glock is, and he happily tells them. (The Government concedes that the questioning did not satisfy the requirements of Miranda.) The question that came before the Court is simple: Does the Miranda violation render inadmissible the gun as "fruit of the poisonous tree?"

Justice Thomas wrote the lead opinion, which is joined only by the Chief and Justice Scalia. And the main thrust of his opinion can be summarized in one sentence: "The [Self Incrimination] Clause cannot be violated by the introduction of nontestimonial evidence obtained as a result of voluntary statements."

Justice Thomas's reasoning is fairly straightforward: the Self-Incrimination Clause, unlike the Fourth Amendment (a violation of which would mandate, with certain exceptions, the poisonous fruits doctrine), is self-executing. In other words, the text of that clause provides its own remedy: it specifically states that "No person … shall be compelled in any criminal case to be a witness against himself." It's clear, then, that a defendant can't be forced to testify against himself. And because custodial interrogations are inherently coercive, the Miranda rule was developed, making non-Mirandized statement inadmissible during a prosecutor's case-in-chief.

It's the differences between the Fourth Amendment and the Self Incrimination Clause that compel the result in Patane. A Fourth Amendment violation has occurred as soon as an officer makes an illegal search or seizure. The Self-Incrimination Clause, however, is not violated merely by an officer's failure to give a Miranda warning. Instead, a violation occurs only when the coerced statement is introduced at trial.

Justice Kennedy, joined by Justice O'Connor, agrees that the gun is admissible. But he disagrees--or, at least, he argues the Court shouldn't decide--as to whether a custodial interrogation absent Miranda warnings is itself a Miranda violation. Instead, Justice Kennedy would have decided the case merely by balancing the objectives of the criminal law enforcement system with the concerns underlying the Miranda prophylactic.

Justice Souter, joined by Justices Stevens and Ginsburg, writes a brief dissent. He argues that "There is no way to read this case except as an unjustifiable invitation to law enforcement officers to flout Miranda when there may be physical evidence to be gained." Justice Breyer is even more terse, and would make exclusion dependent on whether the Miranda violation was in good or bad faith.

Missouri v. Seibert is another case in which no single opinion garnered five justices' signatures. In that case, police interrogated Seibert (who was in custody) without giving her a Miranda warning. She confessed. They then took a 20-minute coffee break, Mirandized her, and questioned her again. She confessed again. The question for the Court here is whether the post-warning confession should have been admitted at trial.

Justice Souter wrote the lead opinion, joined by Justices Ginsburg, Stevens, and Breyer. Justice Souter begins with a reminder of Dickerson v. United States, in which the Court held that the Miranda rule was constitutional in nature. The heart of Justice Souter's reasoning is that the interrogation method employed by the police in this instance (a method which the Court believes is widely utilized) renders Miranda toothless:

After all, the reason that question-first is catching on is as obvious as its manifest purpose, which is to get a confession the suspect would not make if he understood his rights at the outset; the sensible underlying assumption is that with one confession in hand before the warnings, the interrogator can count on getting its duplicate, with trifling additional trouble. Upon hearing warnings only in the aftermath of interrogation and just after making a confession, a suspect would hardly think he had a genuine right to remain silent, let alone persist in so believing once the police began to lead him over the same ground again.

Justice Breyer stands alone in Seibert: he wants courts to determine whether the failure to warn was in "good faith."

Justice Kennedy stands alone, too, but it may be that his opinion is controlling, as he concurs on the "narrowest possible grounds." (In fact, he uses the word 'narrow' prominently, as if manuevering to achieve this result.) Rather than summarize his opinion, I'll quote directly from the passage that will likely be quoted in the lower courts:

The admissibility of postwarning statements should continue to be governed by the principles of Elstad unless the deliberate two-step strategy was employed. If the deliberate two-step strategy has been used, postwarning statements that are related to the substance of prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. Curative measures should be designed to ensure that a reasonable person in the suspect’s situation would understand the import and effect of the Miranda warning and of the Miranda waiver. For example, a substantial break in time and circumstances between the prewarning statement and the Miranda warning may suffice in most circumstances, as it allows the accused to distinguish the two contexts and appreciate that the interrogation has taken a new turn.

Commentary: Both cases are correct. Patane is, of course, unpalatable to civil rights advocates, but the Court has consistently held that the differences in the Fourth and Fifth Amendments compel different remedies for violations of each. And what's more, Patane only implicates the Self Incrimination Clause. Under certain circumstances, there might be other reasons to suppress physical evidence. For instance, if the police beat or tortured a suspect until he revealed the location of incriminating evidence, the Due Process Clause might provide relief. See, e.g., Rochin v. California.

Similarly, Seibert provides the correct rule of law--though as I note above, it's unclear which opinion will be followed in the lower courts. I'm not sure why the subjective intent of the police is so important to Justice Breyer. As Justice O'Connor points out, such a test is nearly unworkable. And even if there was a way to craft a useful "good faith" test, it would likely end up creating an exception to the rule announced in Seibert that swallows up that rule. (The "Leon good faith" principle is an excellent an example of this, providing an exception to the Fourth Amendment that's so large courts and police routinely drive trucks through it.) Justice O'Connor is correct that Justice Kennedy's analysis requires an extra step, but it provides clear, objective guidance as to when a post-Miranda confession resulting from a two-step interrogation will be admissible. And because, as noted, it is apparently more "narrow" than the plurality opinion, it may be deemed controlling in the lower courts.

But am I the only one tired of the prissy little guy who keeps demolishing competitors on Jeopardy?

I begin this post in the hope that people smarter than me will weigh in on this matter. I cannot seem to get my head around the issue I'm about to describe, but perhaps I'm making it more complicated than it really is.

As we've known for some time, Saddam Hussein is to be tried in an Iraqi court for his crimes. Today, according to news reports, he appeared before an "investigative judge," who informed him of the charges that he would face. Somewhere in Saddam's ramblings (is he crazy, or crazy like a fox?), the former Iraqi dictator touched on a question that deserves some attention: does an Iraqi court have jurisdiction to try him for all of the charges that have been thus far disclosed?

One of the charges that Saddam faces is that he invaded Kuwait. (Disclaimer: I have not found a reliable, comprehensive transcript of the "arraignment." F ox News has posted one, but it is obviously incomplete.) At least as the judge's words have been translated and reported in this country, Saddam is not being tried for war crimes he committed during that invasion, but for the invasion itself.

Article 15(A) of the Iraqi Constitution provides that "There shall be neither a crime, nor punishment, except by law in effect at the time the crime is committed." This is a familiar provision to Americans, embodied in similar language in our Constitution's ex post facto clause. So, assuming the court trying Saddam is bound by the current constitution, Saddam can only be held to answer for those acts that would have been illegal when he commited them. Certainly at the time of the invasion of Kuwait, Saddam was in lawful control of the military. And equally as certain, no law existed at that time barring the use of the armed forces in any action that Saddam would have deemed necessary to defend Iraq. An argument can be made that the invasion was contrary to international law. But does anyone seriously believe that in the late 1980s or early 1990s a law existed prohibiting violation of the "laws of nations?" Some of the other charges (mass murder, etc.) were either contrary to Iraqi law or likely can be fairly implied from that law. But was it a mistake to charge Saddam with the "crime" of invading Kuwait?

From a political standpoint, trying Saddam in Iraq was certainly desirable. But from a legal standpoint, it may have been better to place him before an international court that clearly has the authority to prosecute him for international crimes.

Finally, I'll pose a scary thought: is there any chance that Saddam could be acquitted? When the judge read the charge regarding the invasion of Kuwait, Saddam appeared animated, and stated that he did so to keep the Kuwaitis from turning Iraqi women into prostitutes. Is an Iraqi court going to permit Saddam to present a necessity defense (to this and other charges), and is there any possibility that the defense could prevail? I don't see a jury trial right in the provisional constitution, and it's probably less likely that a judge would be swayed by that defense than a jury of Iraqis. But the possibility of Saddam, represented by competent counsel, on Iraqi TV every day (for weeks, maybe) during the trial arguing forcibly that he had always tried to act in the best interests of Iraq (regardless of the truth of that position) ought to be a sobering thought for the provisional government.

The "Ogre of the Ardennes" has been captured. He is, sadly, not an overgrown monster of fantasy novel fame, but rather a 62-year-old forest warden and sex offender in Belgium and France.

I don't actually have anything to add to this news, but I do think that "Ogre of the Ardennes" is a cool name, and one that I would be proud to have if I were a despicable and evil murderer.

The article suggests that a sex-offender registry might have helped law enforcement with his case. Looking at the cursory facts given, that might well be true, but I just want to note that that would be true of a sex-offender registry available only to the police, with no need for publicly-available (and dubiously retroactive) sex-offender registries. The article doesn't distinguish what sort of registry it's talking about, but I mention this only because the two are often conflated.

(Apropos International Kissing Day, July 6th)

I am a little hesitant to post this poem now, as I find it unlikely I will be able to find anything better between now and next Tuesday. Still, I am not one for delayed gratification:

Kissing, by Peter Meinke:

I remember when we used to kiss
Your eyes closed for a moment then opened as if
in wonder at the world's sweet surprises of tongues of lips

We'd sit on the edge of the forbidden bed antic-
ipation bursting like cocaine *Oyesyesyes*
I *remember* when we used to kiss!

Nothing's like touch like skin on skin
and every minute the young beginning to sip
in wonder at the world's sweet surprises of tongues of lips

of taste and smell: the rollercoaster dips
of the body's bends And still through a myopic mist
I remember when we used to kiss

everywhere! lunatic lovebugs repetitive
as villanelles in your old keep crying with bliss
and wonder at the world's sweet surprises of tongues of lips

We'd say pupils wide with excess *Do that* *Do this!*
What innocence! What wickedness!
How I remember when we used to kiss
in wonder at the world's surprises: *Tongues!* *And lips!*