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Tuesday, Jan. 08, 2002

When William Rehnquist retires as Chief Justice in a year or two, many commentators are likely to report that he was ideologically conservative, but not doctrinaire. Such experts will undoubtedly point to a few instances over the last 15 years when the Chief voted to uphold liberal precedents from the Warren era.

Exhibit A will be Rehnquist's majority opinion two years ago in United States v. Dickerson. There, Rehnquist reaffirmed Miranda v. Arizona, even though the Chief had many times criticized this pro-defendant precedent in the past.

But this analysis of Rehnquist's tenure will be mostly wrong. Actually, Rehnquist almost never wavers in the pursuit of his uniformly conservative agenda. When he casts a "liberal" vote, it reflects only a strategic pursuit of conservative results.

On those occasions when Rehnquist lacks the votes to overturn a liberal precedent, he pretends allegiance to the doctrine he cannot wholly discard while gradually, over time, draining away its meaning. Eventually, nothing is left but a nicely burnished but empty shell - which Rehnquist embraces and others wrongly take as a testament to his open-minded leadership.

The case of United States v. Orso, which bitterly divided the Ninth Circuit and was finally resolved last week - nicely illustrates both the cleverness and the danger of Rehnquist's methodology.

Orso: Postal Inspectors Decide Not to Read a Suspect Her Rights

In Orso, the Redondo Beach, California police department arrested Jody Orso only to learn that she was wanted on a federal warrant for allegedly having robbed a postal carrier. The local police called the U.S. postal inspectors on the case and the inspectors drove down to Redondo Beach to pick up the suspect.

Upon taking Orso into custody, the postal inspectors (by their own account) deliberately decided against giving their suspect the Miranda warning to which she was immediately entitled under the Constitution. (These warnings, as all TV watchers know, inform a suspect of his or her right to remain silent and to be represented by counsel). As one inspector candidly testified, they were concerned that giving Miranda warnings would reduce the chance that Orso would talk to them.

Instead, the postal inspectors adopted a clever (if dishonest) technique for eliciting a confession. On the ride back from Redondo Beach, with Orso handcuffed in the back of the car, the inspectors told her (falsely) that a witness had seen her with a gun when she robbed the postal carrier. Armed robbery, they explained, carries a very long prison sentence (up to 25 years), whereas simple robbery - that is, without a gun - would probably result in only a five-year sentence.

Just as the inspectors hoped, their now-terrified suspect fell for the ruse and made numerous incriminating statements in an effort to seem cooperative and minimize her potential jail time.

Then, once they were back at their office, the postal inspectors completed the final stage of their investigative plan. They read Orso her Miranda rights, which Orso, having already essentially confessed, proceeded to waive. Orso then gave the inspectors a detailed description of her involvement in the robbery.

Why the Postal Inspectors' Plan Guaranteed a Conviction For Orso

It may be news to many folks, even many lawyers, that the postal inspectors' tactics, far from botching their case, guaranteed a conviction. How can that be? The trick is that there were two confessions, not one.

Suppose police officers deliberately withhold Miranda warnings from a suspect and thereby obtain a confession. Suppose further that the officers then immediately give that same suspect Miranda warnings and have him repeat the very same confession five minutes later. It has been the law for 17 years - ever since the Supreme Court's decision in Oregon v. Elstad - that this second confession is fully admissible in court, even though it is clearly the product of the initial unconstitutional interrogation.

A Conflict Between Dickerson and Elstad?

Jody Orso's lawyers tried to argue that Chief Justice Rehnquist's opinion in Dickerson called into question the continuing validity of the earlier decision in Elstad.

Here is the potential conflict between the two decisions: As Orso's attorneys pointed out, Elstad seems to be based on the rationale that, because Miranda warnings are a judicial creation and are not constitutionally compelled, the failure to give such warnings does not taint evidence obtained after police remedy their omission to give such warnings. But Rehnquist's opinion in Dickerson rejects this rationale. It specifically holds, albeit reluctantly, that Miranda warnings are indeed constitutionally required.

This seems, on its face, to be a strong argument. But the problem for Orso was that Rehnquist made clear in his Dickerson opinion that, whatever its original rationale, the Elstad rule - allowing police to cure Miranda violations, and even to leverage information gleaned during unconstitutional pre-Miranda interrogations - was to remain in full force after Dickerson. And for that reason, the Ninth Circuit, after a drawn out, bitter fight among the active judges, upheld Orso's conviction.

Gutting Miranda While Technically Preserving It

Orso's case only illustrates one example of a larger doctrinal problem. The fact is that the Miranda doctrine is riddled with Elstad-style loopholes, many of them carved out by Rehnquist himself.

Moreover, police forces, like the postal inspectors in the Orso case, have not only learned to live with Miranda, they have learned to use Miranda's loopholes to their advantage in questioning suspects. In terms of catching criminals, this is not such a bad thing. But it comes at a cost.

With respect to the police, the gutting of Miranda encourages law enforcement officers to purposefully violate the Constitution as a routine part of their jobs. Moreover, in a phenomenon that is just as troubling, the Supreme Court's handling of the Miranda doctrine in Dickerson and other decisions involves that court and all others in an elaborate pretense. There is a reasonable argument to be made that Miranda was wrongly decided, but that is an argument to be confronted head-on, through reasoned debate.

Rehnquist and his allies, however, have rendered such a debate unnecessary. Why bother to have the debate, when the Court can simply pretend that Miranda continues as a vital, constitutionally based protection of individual liberty while simultaneously eviscerating its meaning and ensuring that it does not?

On this subject, as on all too many, the Supreme Court is being hardly more honest that the postal inspectors in the Orso case - and sadly, it is we, not a postal thief, who are being gulled.

Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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