“Okay, I got it. Go ahead.”
“So Featherstone asks him for some ID, and Rohbling says he doesn’t have any, and then he asks for his name and the guy says his real name, Jonathan Rohbling. And then Featherstone checks out his neck, and he sees it’s the guy.”
“The hairs there.”
“Yeah. Black women call it the kitchen. Whatever you do to your hair, the first place it’s going to go back to natural is the base of the neck. Rohbling should have had little kinky hairs back there, and what he had were dyed Caucasian hairs. So Featherstone arrests him, Mirandizes him, and takes him to the Two-Eight. Do you want me to go through the interrogation stuff?”
“I read the transcript,” Karp said. “Smart guy, Featherstone, taping the whole thing. He figured this was going to be a tricky one, I wonder why. No, right now just give me your sense of how it all relates to the motion to suppress the confession.”
“Okay. Rohbling got the Miranda warnings at the time of arrest, at the bus stop. At the precinct Featherstone asked him if he wanted to help out the police. Yes. Would he waive his right to silence? He hesitates. He wants his medicine. Featherstone tells him he’ll get his medicine after they finish their chat. Rohbling signs the waiver. Featherstone confronts him with the candy dish. It’s a handmade ceramic candy dish, and on the bottom it’s inscribed, ‘Happy Birthday, Grandma, from Serena.’ Featherstone has already found that Hughes has a granddaughter named Serena and that the dish was a gift on the victim’s sixty-fifth birthday. So how did you get the dish, Mr. Rohbling? She gave it to me. Back and forth. How did Mrs. Hughes die? I didn’t hurt her, she was my friend. You pressed your suitcase over her face until she was dead, didn’t you? Then he says, I’m confused. I want to see Erwin Bannock. Is Bannock your lawyer? Yes. They let him make a phone call. He calls Bannock. The interrogation stops, they feed Rohbling. But then Featherstone gets suspicious. He checks and there’s no lawyer named Erwin Bannock. And then they find that Bannock is Rohbling’s psychiatrist. Naughty boy, telling us he was your lawyer, they say-words to that effect. Then the interrogation resumes-still on tape-in the course of which he admits that he was trying to ‘snuggle’ with Mrs. Hughes and he’s sorry she got sick and died. Featherstone gets an inspiration and shows him the other objects in the suitcase. He got these from other ladies he was snuggling with and they died, right? Right, he says, and he gives them the names and when he killed them. As you know, none of the others was listed as a homicide. They draw up a confession and he signs it; he’s been in custody six hours. They book him for five homicides, and then Waley shows up with the parents. End of story.”
“Legal points?” asked Karp.
“On the confession? All right, one: waiver of right to silence has to be voluntary, knowing, and intelligent, Moran v. Burbine. The case law is a little murky here. In Colorado v. Connelly the Supreme Court held that voluntariness under the Miranda doctrine pertained entirely and exclusively to the issue of police coercion. In the absence of coercion there was no flaw in the confession obtained, even though the suspect was mentally ill. Since Connelly, on the other hand, lower courts have held that mental incompetence voids a waiver-it can’t be knowing and intelligent if the suspect is wacky. The motion claims that the waiver is void because of Rohbling’s mental state, using Smith v. Zant.”
“Asserting mental disease or defect at the time.”
“Demonstrated by the reference to medication,” said Collins. “They point out Rohbling was on a course of antipsychotics at the time. He asked for his pills and didn’t get them. No pills, he’s crazy.”
“And, of course, they want to also define the deprivation of medication as coercion under Connelly,” said Karp. “Good point, actually. Continue.”
“Point two: he asked for a lawyer-”
“But he didn’t,” Karp interrupted. “He asked for a shrink. Fare v. Michaeclass="underline" request to see a third party is not an invocation of the right to counsel.”
“No, but the cops thought he was asking for a lawyer and should have terminated the interrogation. The motion claims. Also, when he was on the phone with Bannock, Bannock said he was going to call a lawyer and Rohbling agreed, and Bannock did call Waley, so they’re claiming Fare doesn’t operate. Counsel was invoked through a third party and the interrogation should have stopped, especially if, as they’re claiming, the suspect was mentally incompetent at the time.”
“Yeah, but that third-party stuff is stretching it. I’m thinking that our best response is to lean on the resumption of questioning after right to counsel was invoked, using Michigan v. Mosely. The criterion is, did the cops, quote, scrupulously honor the right to silence. It’s permissible for the cops to requestion the suspect on a crime different in nature and time and place from the crime they arrested him for. The other four murders-”
“Not different in nature,” said Collins, “but different in time and place.” He frowned. “But that kills the Hughes confession.”
“We can afford to let it go if we have to,” said Karp. “We don’t need the confession on Hughes. We have solid forensics on Hughes. We have Happy Birthday Grandma on Hughes. But I’m not that worried about the black-letter law.” He tapped Waley’s thick memorandum brief. “No, what we got here is much denser than that. He’s got appellate rulings for a dozen states, federal appeals cases, waiting for cert from the Supremes. He knows Peoples thinks of himself as a scholar, and this is a fat carrot he’s dangling. Let’s make some new Miranda law together, Your Honor.”
Collins was still frowning. He had started to worry his little mustache too. “It’s thin, Butch. Mosely, I mean.”
“Yeah, maybe, but thin is what we got to work with. Look, we have to get started on drafting. I’ll take the confession, you handle the suitcase.”
Collins looked at him, surprised. “Solo? Just draft it?”
Karp grinned at him. “Sure. You’re as good as Waley.”
Collins smiled back. “I thought he was Mozart.”
“So be Beethoven. Be Fats Waller. I’ll do the Miranda stuff.”
“Better you than me, boss,” said Collins, standing up and flexing his knees. “A week, say?”
“Sounds good. Just watch yourself in traffic. By the way, you know the difference between Carmen Miranda and Ernesto Miranda?”
“No, what?”
“One is fruit; the other is nuts.”
Collins snorted a laugh, waved and left.
Leaving Karp alone with the beautifully crafted motion to suppress a confession to five homicides. He got up, stretched, opened his office door, and looked into the bureau’s outer office. Two of his junior people were there, and when the door opened they put on the eye and body language, hoping to catch his attention. Connie Trask glowered at him and wiggled a stack of yellow message slips. Karp put on a stone face, ignored the A.D.A.’s, and went back inside.
He pulled the motion brief into the center of his desk and began to scribble notes about the point raised in the first of the bookmarks he had inserted. The real world faded away.
Every prosecutor in the United States has good reason to wish that Ernesto Miranda had never been born, or that once born, he had not grown into a kidnapping, raping scumbag, or that having chosen that mode of life he might have avoided the attentions of the Phoenix police department, or that once arrested and justly convicted for his nasty crime, or, and especially, that the Supreme Court of the United States had been a mite more lucid when they ruled that the Fifth Amendment privilege against self-incrimination applied to custodial interrogation, and Ernesto got his long-sought walk.