April 10, 2018

POS 282 INTRODUCTION TO AMERICAN LAW
In class today, Tuesday 4/10, I first reminded the class that the Corbin case briefs are due Thursday. We went over a few questions about the case brief. We reviewed the limits on Congress by Article I Section 8, and We then went over NFIB v. Sebelius. We went through Roberts' opinion, looking at his arguments from the text of the constitution, from precedent, and from the consequences of a decision the other way (the parade of horribles). We also looked at Ginsburg's dissent, and the "Joint Dissent's" agreement with Roberts. In terms of limitations on state power, I talked about the U.S. Supreme court case of Rowe v. N.H. Motor Transport, in which the Court struck down a Maine statute because the federal power had preempted any state power to regulate the delivery of cigarette products to minors in Maine. We began our discussion of Butler by going over what it was the the Court had decided in Miranda. On Thursday we will first go over the Corbin case brief, and then we'll pick up with Butler's analysis of dictum in Miranda.
The assignment for Thursday 4/12 is to finish your Corbin case briefs, due at the beginning of Thursday's class, and to review Butler, previously assigned.


POS 484 CRIMINAL DUE PROCESS
In class today, Tuesday 4/10, I distributed 3 handouts: Assignment #2 (reproduced below); State v. Bridges, 2003 ME 103; and State v. Nightingale, 2012 ME 132. We went over the requirements of the assignment, which is due at the beginning of class Thursday 4/19. We then went back through the 3 Seibert opinions, trying to pick out the positions taken by each opinion, as well as guessing about which of the opinions states the actual holding of Seibert. We then turned to Ormsby. We went over the background facts, and the sequence regarding Mirandizing Ormsby. We began watching the youtube video of a portion of the interrogation, but time ran out on us. On Thursday we will finish our discussion of Ormsby. I also want to be able to discuss Assignment #2 with the class, so the assignment for Thursday 4/12 is to review Ormsby, read Bridges and Nightingale, and try to figure out in Assignment #2, what is the legal issue behind each of the 4 questions in the assignment, and what authority will you use to address the question. Also, please finish watching the video of the Ormsby interrogation, which can be found at
https://www.youtube.com/watch?v=me5Qhw_LHmY
(or else just go to youtube and search for Ormsby Maine interrogation).

Assignment due the beginning of class Thursday, April 19, 2018

The assignment consists of a total of four questions. For each one:
a) answer the question that is posed, with a brief analysis (in other words, every question carries with it the implied ending “and why”); if a solution is not clear, and it could be argued either way, explain the pros and cons of both ways;
b) briefly tell what authority you’re relying on for your answer, with paragraph numbers if possible, and with a brief explanation of what that authority provides.

The overall goal is that you want to get a confession out of the suspect Andy, and you want that confession be admissible in the Maine courts.
When the question asks you to make a specific assumption, that assumption just applies to that specific question only. Not all of the facts given to you will necessarily be crucial to your answer.

Assume that officers Fife and Pyle are courteous, low-key, and non-threatening throughout, unless the specific facts indicate otherwise.

You’ve got a limited set of authority to work with: Ormsby, Bridges, and Nightingale, as well as all the relevant cases from the textbook. No additional cases are required or allowed

Question 1:
Officers Fife and Pyle are brand new members of the homicide squad. Their first case involves a report that a car has been found in the Penobscot River, and there’s a body inside the car. Andy is a college student at the nearby university. The car belongs to Andy, and the body turns out to be Andy’s roommate Opie. Opie’s death is clearly a homicide, as forensics determines that he was dead of blunt force trauma before he went into the water. Officers Fife and Pyle immediately have a hunch that Andy is the perpetrator of the homicide, and he is the focus of their interrogation. DNA from the car matches Andy’s, but, as Officer Fife points out to Officer Pyle, that doesn’t help much, since the car belongs to Andy.
They call Andy and tell him that they need him to come down to police headquarters to identify the car (which has been brought to headquarters after it was recovered from the river). That’s a small part of the reason for having him come in, though, since the overriding reason is to wring a confession out of Andy.
Officer Fife wants to tell Andy as soon as Andy comes to the station that they’ve got some additional questions for him (beside the identification of the car), but that he’s free to leave if he wishes. He thinks (with good reason) that Andy won’t want to leave at that point, because Andy doesn’t know that he’s already the focus of the investigation. Fife also wants to Mirandize Andy right from the start. Fife thinks (again with good reason) that there’s little danger of Andy clamming up at this point, again because Andy has no idea that he’s already the focus of the investigation. If Andy asks about why he’s being Mirandized, Fife will just tell Andy that Miranda warning are routine when there’s a dead person involved.
Officer Pyle agrees with the part about telling Andy that he’s free to leave (before they give Andy any reason to leave), but he doesn’t want to Mirandize Andy before they have to.
1) Assuming that Andy is not in custody at this point, which officer has the better plan in terms of whether to Mirandize Andy right away?



Question 2:
Assume that Fife and Pyle do tell Andy that he’s free to leave, and do Mirandize him, and that he’s still not in custody for the entirety of Question 2.
Fife and Pyle start by telling Andy that they realize that Opie was a bad person. They get Andy talking about all the bad things that Opie did (dealing drugs, not cleaning the bathroom shower, etc.). Once Andy’s comfortable, they tell him that they know what Andy knows, and that soon he’ll know that they know what he knows. Andy just looks confused, just as most reasonable people would be on hearing that.
Fife and Pyle start to make up lots of lies that tend to incriminate Andy in Opie’s murder. They tell Andy that people have seen the two roommates arguing (the two had argued, but Andy hadn’t thought that anyone had seen them). Fife and Pyle tell Andy that Opie had called his parents and told them that he was afraid of Andy (total fabrication, but somewhat believable to Andy). They told Andy that confessing would be good for his soul, and that he would feel better if he told them everything.
Andy gets very distressed at this point, and tells the officers that he wants to talk to an attorney. They told him that sure, he could do that, but why don’t they all just take a break for a while. They tell Andy again that he’s free to leave, but they offer to get Andy his favorite pizza. Andy likes the sound of that, and he sticks around, and then he feels much better after the pizza.
2) Is there any problem with continued interrogation after Andy has asked for an attorney?

Question 3:
Assume instead that Andy did not ask for an attorney, and was not Mirandized at any point up to the beginning of Question 3, Assume also that Fife and Pyle are pretty sure that they can get a confession out of Andy after he gets some pizza in his belly. They are pretty sure that they’ve got enough to arrest him already (and you can assume that they are right) but it sure would be nice to get a confession out of Andy. Assume that Andy is in custody for Miranda purposes.
Officer Fife now wants to tell Andy that he’s under arrest, then Mirandize Andy, and then get him to admit that he killed Opie. Both officers realize that the Miranda warnings at that point might cause Andy to quit talking.
On the other hand, Andy seems to answer the questions that are put to him. Officer Pyle wants to simply question Andy about whether he did it (without telling him that he’s under arrest or Mirandizing him). If Andy admits to the killing, Officer Pyle will then tell Andy that he’s under arrest, Mirandize him, and ask him to repeat what he’s already admitted (and there’s a good chance that Andy will be willing to do that, since he’s already admitted it once).
3) Which officer has the better plan in terms of when to Mirandize Andy?

Question 4:
Assume the facts from questions 1 through 3, but not any assumptions about whether Andy has not been in custody for Miranda purposes. Assume that Andy has been told that he’s free to leave, but has never been Mirandized.
The pizza break is over. The entire time in the police station has gone on for three hours already, and the officers feel that Andy’s resistance is breaking. Pyle plays the bad cop. Jabbing Andy with his finger, and with an intimidating tone, he tells Andy that he knows that Andy is lying, and that soon the truth will come out. He says (falsely) that the police have the DNA to prove that Andy killed Opie. Fife (as good cop) then just repeats that confessing would be good for Andy’s soul, and that Andy will finally feel better if he tells them everything. He says that things will go better in court for Andy if he tells the truth now.
Andy finally breaks down and confesses that he killed Opie after a fight about Opie eating Andy’s leftover pizza from the refrigerator.
4) Analyze whether Andy has been in custody for Miranda purposes at any point (and if so, at what point) during the events related in Questions 1 through 4.

You should clearly mark 1-4 for the 4 questions. Don’t repeat the questions - just give the answers. I anticipate that your paper will be roughly 2 or 3 pages long. When citing a case, underline the name of the case.

Here’s a sample answer to #1, which illustrates the format and citation form (but try not to emulate the degree of confusion exhibited below):

1) Fife has the better plan. If Andy is Mirandized right away, there’s basically no way that any statement that they get out of Andy will be suppressed. After all, both Ormsby and Nightingale were Mirandized right away, and so their statements were not suppressed. Ormsby §12; Nightingale, ¶15. On the other hand, Bridges was not Mirandized, and so her statements were suppressed (Bridges ¶12). There’s really no way to predict whether the Court will find whether a statement is voluntary or not, and so Mirandizing right away is the only way to make a statement admissible. Miranda itself says that no statements of a suspect can be admitted unless the 4 warnings have first been given (Miranda, text, p. 547)

The assignment will be graded on both the structure and the content of your paper. The paper will also be graded on how well you write English, and how clearly you organize your thoughts. I like short clear sentences better than long complicated ones. I like correct grammar.

Please make two copies of your paper, one to hand in at the beginning of class, and the other for you to have during class for our discussion.

You may e-mail me if you have specific questions about the assignment. The more time that I have to answer your questions, the more likely it is that I can be helpful.

If you cannot be in class on Thursday 4/19, you should still e-mail me your assignment by the beginning of class time. If you do that, you will not have any grade deducted from your grade for the paper. If you do not, you should still contact me as soon as possible to see what options are available to you. (Generally, I do not want to accept assignments after we have discussed them in class). See the Syllabus for the class rules regarding late papers.

Remember to work by yourselves; do not collaborate. Do not show your work to anyone else; do not look at anyone else’s work. Do not discuss your case brief with anyone but me. Even if a classmate has missed a class in which we discuss the case brief, do not share the class discussion with the absent classmate. I am the only person with whom the case brief can be discussed. Do no outside research. Do not troll the internet.

IMPORTANT: If you e-mail your assignment to me, I will reply to confirm that I have received your assignment. If you do not get a reply, then I have not received the assignment.