True Confessions

TWO YEARS AGO, federal agents in Colorado responded to a complaint at the home of Samuel Patane, an ex-convict under a restraining order for beating his wife.

Patane’s probation officer had warned the agents that the convicted felon had a Glock pistol and a penchant for violence. After entering the home, agents began reading Patane his Miranda warnings — the right to remain silent and to contact his lawyer. Impatiently, Patane told the feds he already knew his rights. Then he directed officers to his gun after they asked about it. Patane was indicted for possessing an illegal firearm.

As the case wended its way through the courts, however, Patane’s lawyer raised objections. Because federal agents had not finished reading Patane his Miranda rights, it was argued, the gun had been seized illegally. Colorado’s liberal judiciary agreed. The evidence was dismissed under the “exclusionary rule,” which says evidence cannot be used in court if it has been acquired in violation of the Fourth or Fifth Amendment.

Two weeks ago, the U.S. Supreme Court agreed to review the case. U.S. solicitor general Theodore Olson argued that the Miranda warning applies only to confessions, not to hard physical evidence. But the case also offers an opportunity to review the entire 38-year history of what is perhaps the Supreme Court’s most controversial criminal ruling ever.

Although Miranda is commonly remembered as having eliminated “third-degree” beatings of criminal suspects, in fact the real concern of the Warren Court’s slim 5-to-4 majority was the “coercive atmosphere” of interrogation itself. “Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented,” wrote Chief Justice Earl Warren for the majority. “As we have stated before . . . ‘coercion can be mental as well as physical.'”

The court buttressed its decision by citing textbooks and police manuals. These how-to guides outlined “good-cop, bad-cop” routines and, above all, recommended “patience and persistence” in questioning. Justifying its decision, the Court quoted one manual’s instruction that an interrogator should “patiently maneuver himself or his quarry into a position from which the desired objective may be obtained.”

In truth, what the court really didn’t like was confessions themselves. “The government [should] ‘shoulder the entire load’ [by] produc[ing] the evidence against [the suspect] by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth,” wrote the majority. Perhaps influenced by too many Agatha Christie novels, the justices seemed to believe that solving crimes was a matter of brilliant deduction. Yet real detectives and prosecutors say the vast majority of their cases would go nowhere unless they can at least confront the suspects.

It’s not that interrogation always leads to confession. Just as often a suspect incriminates himself by telling the police something that proves not to be true. O.J. Simpson never confessed to anything, yet his unlikely account of his actions on the night of his former wife’s murder played a big role in his (albeit unsuccessful) prosecution. Ellis H. Parker, a legendary detective of the early twentieth century, had a theory. He believed the person with the best alibi was the most likely suspect in any crime. “The average person doesn’t know precisely where he was every minute of the day,” he wrote. “Only someone who has carefully rehearsed his whereabouts is likely to have a good story.” Parker is reported to have solved 226 of 236 murders he investigated during his career.

Miranda, however, makes it possible for a suspect to refuse any cooperation with the police. And, in an important corollary, it forbids the police from drawing any negative inferences from this refusal. Fortunately this is not widely recognized or solving crimes might cease altogether. “The overwhelming number of defendants still think they’re implicating themselves if they refuse to talk to the police,” says one Manhattan prosecutor. “It’s a good thing they do. Otherwise we’d probably lose more than half our convictions.”

The impact of Miranda has been to give defendants enormous leverage in plea-bargaining. The ruling’s defenders argue that the number of cases where confessed criminals go free is insignificantly small. But that’s not the point. More than 90 percent of all cases are settled without trial. And Miranda has had quite an impact on plea-bargaining, according to criminologist Henry Pontell in his 1984 book “A Capacity to Punish.” Before 1966 — the year Miranda was decided — 60 percent of California defendants pleaded guilty to the original top charge. The next year this figure dropped to 42 percent and remained there. Correspondingly, the number who pleaded guilty to reduced charges rose from 27 percent before 1966 to 40 percent. The ability to challenge confessions obviously had an impact.

And even if the number of outright dismissals is small, their patent absurdity can demoralize the public. The Colorado case is only the latest of a long line. In one early Philadelphia case, a confessed murderer went free because the police officers’ Miranda card said, “anything you say may be held for or against you.” The courts ruled the miswording created a “false sense of security.” Confessions have been thrown out because the police read the Miranda warning too soon or too late or not loud enough or in the wrong language. Jim Arehart, a longtime federal prosecutor in Kentucky, recalls a case where bloodhounds cornered two bank robbers in the woods. “We did the robbery, now get these dogs off of us,” shouted one suspect. The confession was excluded because, in effect, the dogs had not read the suspects their Miranda warning.

But perhaps the real problem with Miranda — one never considered by the Warren Court — is that criminals are, after all, human beings, and confession is physically, spiritually, and psychologically relieving. “They want to get things off their chests,” says Mike Sheehan, a former New York City detective who has heard hundreds of confessions during his career. “Or they may want to rationalize. Often they don’t think they’ve done anything wrong. They have their own side of the story and they want you to hear it. This idea of police beating confessions out of suspects using the third degree is silly. All you have to do is find the right framework and make them comfortable and they’ll usually tell you the whole story.”

One thing reported by many interrogators is that, no matter how nervous or agitated the suspect has been during questioning, once he has confessed he will return to his cell and sleep soundly for several hours. “They’ve got it off their chests, they just lay down and go to sleep,” said one detective, quoted in the New York Times Magazine.

It is at this point that the defense attorney enters the picture. Why would anyone confess to a crime, he argues, especially when a long jail sentence or even the death penalty is involved? And the criminal himself often has second thoughts. After the relief has passed and reality sets in, he may wonder, why did I do that? At this point, the story begins to change. The police coerced him. They threatened reprisal against his family. They said they’d maim him if he didn’t confess. Even where the entire process has been videotaped, a defendant will make such claims.

Anyone can later deny a confession, of course. In a trial, the jury can see both sides and weigh the evidence itself. But if an attorney can convince the judge that the defendant’s Miranda rights were violated, the jury will never know of the confession and the case may collapse.

Solicitor General Olson seems to have a good case in arguing that Miranda was only intended to exclude confessions, not physical evidence. The Supreme Court may well decide the case on narrow grounds. But in an age when almost every confession is videotaped, Patane v. Colorado could prove an opportune moment to go back and reexamine the entire premise on which Miranda was decided in the first place — that the state has done something underhanded every time a suspect confesses to a crime.

William Tucker is a senior fellow of the Discovery Institute and columnist for the New York Sun.