The Players: Judges Glickman and Blackburne-Rigsby, and Senior Judge Reid. Opinion by Judge Glickman. PDS for Mr. Trotter. Steven R. Kiersh for Mr. Pee. Trial Judge: Gerald I. Fisher.
Facts: Two check-cashing stores were robbed by two men with similar descriptions. During one robbery, a proprietor of the store was shot in the head and killed. The shooter left behind a hat and cell phone, both of which were tied to Mr. Trotter. The robbers were seen leaving the robbery in a car that belonged to Mr. Pee's girlfriend, and there was testimony that Mr. Pee was driving the car that day.
Mr. Pee was arrested for armed robbery and murder. While in police custody, he first waived his Miranda rights but later asserted his right to counsel. The questioning ended. He was then charged, appointed counsel, and detained at D.C. jail pending trial. Five months later, while still in pretrial detention, he was arrested and charged with a different armed robbery. Police read him his Miranda rights, and he waived them and answered questions.
The trial judge denied a motion to suppress Mr. Pee's statements on the ground that five months had passed between the invocation and the second interrogation, that Mr. Pee had received counsel in the interim, and that he waived his rights at the outset of the second interrogation.
Issue 1: Did the police violate Edwards v. Arizona, 451 U.S. 477 (1981), by initiating the second interrogation of Mr. Pee after he had asserted his right to counsel during the first interrogation?
Holding 1: Yes, the trial court should have granted the suppression motion, but the error was harmless.
Under Edwards v. Arizona, once a suspect asserts his Miranda right to counsel, like Mr. Pee did during the first interrogation, the interrogation must cease and any resumption of the interrogation must be at the suspect’s instigation, not the police’s. The police may not try to recommence the interrogation even about a different crime, Arizona v. Roberson, 486 U.S. 675 (1988), or even after the accused has actually met with counsel in the interim, Minnick v. Mississipi, 498 U.S. 146 (1990).
In Maryland v. Shatzer, 559 U.S. 98 (2010), the Court recognized an exception to Edwards: it held that police may reinitiate the interrogation after a suspect invokes his right to counsel if he has been released from custody and is in the community for at least 14 days. If he is serving a prison sentence when police interrogate him, his “release” by the police into the general prison population counts as well. Here, however, although 5 months had passed between the first and second interrogations, Mr. Pee had neither been released, nor was he returned to serving a sentence. Instead, he was continually held in pretrial custody for the very charges that were the subject of the police interrogations. The trial court erred in ruling that a pretrial detainee was the equivalent of a prisoner returned to the prison population.
Shatzer treated a sentenced prisoner more like someone returned to the community because when he goes back to general population he returns to his “accustomed surroundings and daily routine” and regains the same control over his life as he had before the interrogation. The prisoner would feel less at the mercy of police because his sentence – pre-existing and fixed by a judge – could not be affected by his police interrogators. By contrast, a pretrial detainee is still subject to charging and trial, will not feel at home in jail, and will therefore feel more at the mercy of police interrogators, much like one experiencing Miranda custody at the police station.
Issue 2: Did the prosecutor's improper comments during closing arguments render the trial unfair?
Issue 1: Did the police violate Edwards v. Arizona, 451 U.S. 477 (1981), by initiating the second interrogation of Mr. Pee after he had asserted his right to counsel during the first interrogation?
Holding 1: Yes, the trial court should have granted the suppression motion, but the error was harmless.
Under Edwards v. Arizona, once a suspect asserts his Miranda right to counsel, like Mr. Pee did during the first interrogation, the interrogation must cease and any resumption of the interrogation must be at the suspect’s instigation, not the police’s. The police may not try to recommence the interrogation even about a different crime, Arizona v. Roberson, 486 U.S. 675 (1988), or even after the accused has actually met with counsel in the interim, Minnick v. Mississipi, 498 U.S. 146 (1990).
In Maryland v. Shatzer, 559 U.S. 98 (2010), the Court recognized an exception to Edwards: it held that police may reinitiate the interrogation after a suspect invokes his right to counsel if he has been released from custody and is in the community for at least 14 days. If he is serving a prison sentence when police interrogate him, his “release” by the police into the general prison population counts as well. Here, however, although 5 months had passed between the first and second interrogations, Mr. Pee had neither been released, nor was he returned to serving a sentence. Instead, he was continually held in pretrial custody for the very charges that were the subject of the police interrogations. The trial court erred in ruling that a pretrial detainee was the equivalent of a prisoner returned to the prison population.
Shatzer treated a sentenced prisoner more like someone returned to the community because when he goes back to general population he returns to his “accustomed surroundings and daily routine” and regains the same control over his life as he had before the interrogation. The prisoner would feel less at the mercy of police because his sentence – pre-existing and fixed by a judge – could not be affected by his police interrogators. By contrast, a pretrial detainee is still subject to charging and trial, will not feel at home in jail, and will therefore feel more at the mercy of police interrogators, much like one experiencing Miranda custody at the police station.
Issue 2: Did the prosecutor's improper comments during closing arguments render the trial unfair?
Holding 2: Some of the prosecutor's comments were improper, but none establish reversible error in light of the trial court's curative instructions and the strength of the government's case.
It was improper for the prosecutor to say in rebuttal argument that defense counsel was trying to distract the jury from the evidence because he knew the jury would convict his client. It is a no-no to refer to defense counsel’s supposed motives and beliefs, rather than merely refuting his argument.
It was also improper for the prosecutor to start her rebuttal by saying lawyers are taught in law school to argue the facts if they are good for them, the law if that is good for them, and if neither is good, to “deny, deny, deny,” implying that is what the defense is doing.
It was improper for the prosecutor to say in rebuttal argument that defense counsel was trying to distract the jury from the evidence because he knew the jury would convict his client. It is a no-no to refer to defense counsel’s supposed motives and beliefs, rather than merely refuting his argument.
It was also improper for the prosecutor to start her rebuttal by saying lawyers are taught in law school to argue the facts if they are good for them, the law if that is good for them, and if neither is good, to “deny, deny, deny,” implying that is what the defense is doing.
It was not improper for the prosecutor to respond to defense counsel’s veiled accusation that she had coached witnesses (“Ms. [prosecutor] managed to get them to say” they were “traumatized and all these other excuses”) with the implication that she would never do such a thing. SF
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