Chicago Daily Law Bulletin
Volume: 154 Issue: 51

March 14, 2008

State Court's 'Required' Ruling Profoundly Sad

The U.S. Supreme Court's recent decision in Danforth v. Minnesota, No. 06-8273 (Feb. 20), should be mandatory reading for anyone who wants to be a state court judge.

To understand why, let me tell you about a recent decision from the 4th District Appellate Court. People v. Loewenstein, No. 4-05-0692 (Feb. 15).

The police, without giving Miranda warnings, interrogated a felon named Jeremy Loewenstein at his home. He proceeded to make statements linking himself to a handgun. The next day, the police interrogated him at the police station. This time they read him Miranda warnings and obtained a waiver. Loewenstein again made statements connecting himself to the handgun. He was subsequently charged with knowing possession of a handgun by a felon.

The defense moved to suppress both sets of statements. The prosecution agreed with the defense that the statements from the first custodial interrogation must be suppressed because Miranda warnings were not given. As to the second set of statements, Loewenstein argued that it was irrelevant that proper Miranda warnings and waiver preceded them. He contended that the two interrogations covered similar ground, and therefore the statements at the second interrogation should also be suppressed. The trial court agreed with the defendant, and the prosecution then appealed.

The 4th District began by noting that in 1985 the U.S. Supreme Court held that the simple failure to give Miranda at one interrogation does not necessarily mean that statements obtained after proper warnings and waiver at a subsequent interrogation are automatically suppressed. Oregon v. Elstad , 470 U.S. 298 (1985). If the statements at the second interrogation were voluntarily made after a proper Miranda waiver, they are admissible.

However, the Supreme Court later shifted ground in Missouri v. Seibert, 542 U.S. 600 (2004). As in Elstad, once Seibert made incriminating answers during a custodial interrogation in which police did not give Miranda warnings, the police then gave the warnings, obtained a waiver, and Seibert essentially repeated the incriminating statements.

But in a 5-4 decision the Court suppressed the statements from both interrogations. A four-justice plurality appeared to question the validity of Elstad by focusing on the fact that Seibert's second interrogation quickly followed the first and was generally a continuation of it.

Yet any thought that the Supreme Court was moving away from Elstad was squelched by Justice Anthony Kennedy's deciding fifth vote, which concurred only in the judgment. Contrary to the Seibert plurality, Kennedy insisted that ''Elstad was correct in its reasoning and its result.'' He agreed that the second set of statements should be suppressed, but only because the police in Seibert admitted that they had deliberately violated Miranda at the first custodial interrogation. This was a far narrower ground than that expressed by the plurality. And, when no single rationale gets the votes of at least five justices, then the holding of the court is the position taken by the justice who concurred in the judgment on the narrowest ground. See Marks v. U.S., 430 U.S. 88 (1977).

Relying on the Kennedy concurrence as the holding in Seibert, the 4th District found that the police officer at Loewenstein's first interrogation did not deliberately flout Miranda. Thus, it found Seibert inapplicable. Therefore, the 4th District continued, ''we find the facts in this case require us to follow Elstad.'' (Emphasis added). Thus the 4th District followed the more prosecution-oriented rule of Elstad, rather than the defense-oriented rule of the Seibert plurality. The court proceeded to reverse the trial court and find that Loewenstein's statements at the second interrogation were admissible.

So what's the problem?

It's that word ''require.''

A state court is NEVER ''required'' by the U.S. Supreme Court to apply a pro-prosecution rule over a pro-defense rule. Sure, a state court may choose to do so - but the U.S. Supreme Court may not force them.

Says who?

Says the U.S. Supreme Court most recently in Danforth v. Minnesota.

True, the Danforth majority includes such pro-defense justices as John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer.

But it also includes such pro-prosecution justices as Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr..

Why this broad consensus on a pro-defense decision? Because the ideas expressed in Danforth can trace their lineage back to Madison, Hamilton, and Jay in The Federalist Papers.

The issue in Danforth was straightforward. The Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004) issued a decision interpreting the Sixth Amendment's Confrontation Clause to make it more difficult for prosecutors to introduce hearsay. The Court later ruled that this decision should not be applied ''retroactively,'' i.e., to those cases, which were final at the time Crawford was decided. Whorton v. Bockting. All federal courts are thus bound by the Supreme Court's decision in Whorton. However, the issue in Danforth was whether a Minnesota state court could go beyond the U.S. Supreme Court's holding in Whorton by applying the Crawford rule to Minnesota state cases that were already final at the time Crawford was decided.

In other words, were Minnesota state courts - unlike lower federal courts - free to adopt a more pro-defense position than the U.S. Supreme Court chose?

In a 7-2 decision, the U.S. Supreme Court resoundingly answered ''Yes.'' In so holding, it makes a crucial point about the nature of federalism: the fact that the U.S. Supreme Court does not require a state court to follow some pro-defense rule does not mean that it prohibits a state court from adopting such a rule. (Slip op. 4, emphasis in original.)

But, you say, when the U.S. Supreme Court makes a ruling interpreting a constitutional provision that applies to both federal courts and state courts, isn't it saying that the decision should be applied uniformly in all these courts? Let me quote the Danforth court at length: ''This interest in uniformity, however, does not outweigh the general principle that States are independent sovereigns with plenary authority to make and enforce their own laws as long as they do not infringe on federal constitutional guarantees. The fundamental interest in federalism that allows individual States to define crimes, punishments, rules of evidence, and rules of criminal and civil procedure in a variety of different ways - so long as they do not violate the Federal Constitution - is not otherwise limited by any general, undefined federal interest in uniformity. Nonuniformity is, in fact, an unavoidable reality in a federal system of government.'' (Slip op. 16) (emphasis added).

I propose that this paragraph should be carved in stone over the entrance of every state courthouse in Illinois.

And this is what makes the 4th District's decision in Loewenstein so maddening. Does the court believe Loewenstein was treated fairly? That's fine; just tell us why and announce your decision. But please don't pretend that a U.S. Supreme Court decision ''requires'' you to follow a pro-prosecution tack rather than a pro-defense one.

The 4th District should appreciate the fact that it is not a federal court. A federal court, of course, is ''required'' to follow pro-prosecution decisions of the U.S. Supreme Court. The U.S. Supreme Court is its boss and it must follow its decisions to the letter. But the genius of the federal system is that state courts do not have to do this. A state court - but not a federal court - is free to reject a pro-prosecution U.S. Supreme Court ruling it finds to be unfair.

And Illinois has at least once rejected a U.S. Supreme Court ruling in the area of custodial interrogation. In 1994 the Illinois Supreme Court refused to follow the U.S. Supreme Court's pro-prosecution Miranda ruling in Moran v. Burbine, 475 U.S. 412 (1986). See People v. McCauley, 163 Ill.2d 414 (1994) (holding that Illinois due process trumped Moran v. Burbine's holding that suspect could make a proper Miranda waiver without being told that his family had sent him a lawyer). Unlike a lower federal court, the 4th District in Loewenstein - whether it knew it or not - clearly had the power to decide whether to follow the pro-defense path of the Seibert plurality or the pro-prosecution path of Elstad or a path in-between. For a state appellate court to believe in 2008 - 220 years after the publication of The Federalist Papers - that it was somehow ''required'' to follow a pro-prosecution holding of the U.S. Supreme Court is more than astonishing - it is profoundly sad. Only future legal historians might be able to explain why state courts have been so willing to meekly surrender their constitutional authority to the U.S. Supreme Court.