Two-Steppin'

The U.S. Supreme Court will decide whether a Missouri cop could justifiably dance around Miranda

In a brief submitted to the U.S. Supreme Court in August, the Attorney General's office argues that Elstad allows the Two-Step, and that based on "the totality of the circumstances," the confession was properly admitted into evidence.

Oddly, five months earlier, the March issue of "Front Line Report," a newsletter published by the Attorney General's Office and distributed to state law enforcement agencies, warned that the two-step technique is based on "faulty advice" that resulted from a misreading of the Elstad decision. "Elstad does not authorize po-lice to intentionally withhold giving Mir-andawarnings to an arrested suspect so the suspect will 'loosen up' and confess," the newsletter reads.

A spokesman for the Attorney General's Office de-clined to comment on the case.

Jay Nixon's office isn't alone in standing up for the Two-Step before the U.S. Supreme Court. U.S. Solicitor General Theodore Olson, who reports to John Ashcroft in the Department of Justice, filed a brief supporting the state, citing Elstad as precedent. If the Missouri Supreme Court's ruling stands, Olson argues in his brief, then judges in every case that involves a confession will have to decide whether failing to give a Miranda warning was accidental or intentional.

Olson raises another specter. "And a rule that sought to deter questioning without warnings overlooks that officers might appropriately question a suspect, without administering warnings, in some situations -- such as when it might help locate a kidnapping victim, or thwart a terrorist attack," the Solicitor General writes.

Amy Bartholow, a state public defender, calls the Olson's argument a "red herring." The U.S. Supreme Court, she says, has already approved a public-safety exception to Miranda that would apply in such instances. In Seibert's case, Bartholow asserts, "There wasn't any sort of ongoing crime that could have been stopped."

In her own brief, Bartholow writes, "This case presents a direct assault on Mirandav. Arizona.... Hanrahan knew that Miranda and its progeny obligated him to advise Seibert of her rights prior to any questioning. He nevertheless withheld what the law demands, seeking to extract a statement. Hanrahan 'rolled the dice,' betting that judges would look the other way. Missouri has now upped the ante, asking this Court to erase one of Miranda's key holdings and make the mandatory warnings optional."

Aligned with Bartholow are the American Civil Liberties Union and a group of former law enforcement officials that includes former FBI director William Sessions and two former Justice Department higher-ups. "We have worked within Miranda's warning re-quirement on a daily basis and have found it not to be a barrier to effective law en-forcement and prosecution," the latter group writes in its brief, arguing that a decision in favor of the Two-Step "would erode the public's trust in law enforcement, and lead to disrespect for the law and its institutions."

Three years ago, the group notes, the Supreme Court overturned a federal statute that would have allowed interrogations without first providing Miranda warnings. That statute also provided for a totality-of-circumstances test a judge could use to decide whether a confession should be admitted at trial. "If Congress could not pass a statute that dispenses with Miranda's warning requirement, officers should not be permitted to disobey Miranda's commands and achieve the same result."

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