Davis doesn’t apply because the ambiguous request came BEFORE the accused was advised of his Miranda rights. So, why isn’t there a similar situation for an accused who makes an ambiguous request prior to Article 31, UCMJ, warnings.

Nonetheless, a critical factual distinction between Sessoms’s statements and those evaluated by the Court in both Davis and Berghuis remains: Sessoms made his statements before he was informed of his rights under Miranda. The Miranda Court held that the coercive atmosphere of interrogation makes it essential for a suspect to be “given a full and effective warning of his rights at the outset of the interrogation process.” 384 U.S. at 445. As the Court stressed, when “the police [have] not advised the defendant of his constitutional privilege . . . at the outset of the interrogation,” the suspect’s “abdication of [that] constitutional privilege—the choice on his part to speak to the police—[is] not made knowingly or competently because of the failure to apprise him of his rights.” Id. at 465 (citing Escobedo v. Illinois, 378 U.S. 478 (1964)).

Frankly this is a real world interaction and accounts for real world talk not fully appreciated, or perhaps ignored in Davis. The police here did what they often do and told the accused that having a lawyer wouldn’t help. True, it’s the 9th, the most slapped down circuit.

Say Anything?: Jeopardy Question About New Miranda Opinion Gets It Almost Completely Correct

Last night’s episode of Jeopardy! featured the category “A Murder Investigation,” with The Closer’s Kyra Sedgwick reading the clues. The $1000 clue in the category was: Getting confessions, Brenda’s specialty, will be easier now that the Supreme Court has ruled that any response to interrogation means you’ve waived your rights under this 1966 decision And the Question/Answer was Miranda v. Arizona, 384 U.S. 436 (1966). But what was the Supreme Court ruling referenced in the clue, and is it really true that any response to interrogation means that a suspect has waived his Miranda rights?

As to Berghuis v. Thompkins, Kent Scheidegger of crimeandconsequences blog says:

The Miranda rule remains intact in that the police must warn suspects of their rights and that an invocation of those rights by the suspect requires the police to stop questioning. Today’s decision involves what is needed to establish whether a suspect invoked or waived his rights. To invoke the right to remain silent such that the police must stop, the suspect must say so expressly and unambiguously. On the other hand, a waiver of rights may be inferred from the facts that the suspect received the warnings, understood his rights, and responded to questions anyway.

The Wall Street Journal Law Blog notes:

The 5-4 ruling fell on predictable lines, with Chief Justice Roberts and Justices Scalia, Alito and Thomas joining Justice Kennedy’s majority opinion. Justice Sotomayor wrote a dissent, which was joined by Justices Ginsburg, Breyer and Stevens.

The opinion effectively aligns the exercise of the two rights – silence and counsel – into an unambiguous request. See Davis v. United States, as to the requirement to unambiguously request counsel.

As to Carr v. United States, SCOTUSBlog summarizes that:

The Sex Offender Registration and Notification Act, a 2007 law that requires sex offenders to register, does not apply to sex offenders whose interstate travel occurred before the Act went into effect.

This case has potential impact for military appellate counsel and their clients whose cases are still on appeal. A SORNA conviction presumably could result in additional court-martial action against an appellant on appellate leave pending completion of appellate review. Also, those whose cases are final but are released on parole or supervised release may be affected.

The Court instead accepts Carr’s interpretation that the statute does not impose liability unless a person, after becoming subject to SORNA’s registration requirements, travelsacross state lines and then fails to register.

Carr, Slip Op. at 1.