FORUM

No evidence is more damning than the confession of a defendant in a criminal case. Attorney John Ashcroft has announced that the federal government will charge John Walker, who was found in the company of the Taliban in Afghanistan, with conspiracy and aiding terrorists. Walker's statements to the government and to CNN, if admitted, will be crucial to the prosecution's case against him. There are three possible constitutional bases on which the admissibility of his statements can be analyzed.

First, as a suspect in custodial interrogation, Walker had the right to remain silent and the right to counsel present with him during questioning, under Miranda v. Arizona, which protects the Fifth Amendment privilege against self-incrimination. The government interrogated Walker for forty-five days in a custodial setting without his attorney present. Ashcroft claims Walker waived his Miranda rights both orally and in writing, and thus plans to use the fruits of those interrogations against Walker.

Undoubtedly, Walker's attorneys will argue at trial that, under the circumstances, Walker could not have voluntarily, knowingly and intelligently waived his rights. Isolated with government interrogators on a ship in the ocean, with no opportunity to communicate with a lawyer or his family, he likely felt intense pressure to cooperate with the government, and thus did not voluntarily waive his rights. When Walker was found, he had been wounded and was in a weakened condition. His interrogators were experts, likely to succeed in eliciting statements from him.

Although Walker's parents retained a lawyer on his behalf, the Supreme Court held in Moran v. Burbine, that the right to counsel is a personal one and can only be asserted by the suspect himself. In that case, the suspect's sister, unbeknownst to Burbine, had secured counsel for him. The attorney continually tried to see Burbine, but was turned away by police. Without invoking his right to counsel, Burbine waived his Miranda rights and confessed to murder. It took sixty pages for Justice Sandra Day O'Connor, writing for the majority, to justify how the police could keep an attorney from a suspect in custodial interrogation.

Prosecutors may assert the public safety exception to Miranda, by arguing that national security concerns in obtaining intelligence information from Walker about the activities of the Taliban and al Qaeda, trumped their obligations to comply with Miranda. The exception was successfully asserted in New York v. Quarles, where a rape suspect, who ran into a grocery store in the middle of the night, was found with an empty gun holster. Without Mirandizing him, the police asked him where he had hidden the gun. The admission of his statements was justified as necessary to protect the public safety, even though the market was closed and he was in police custody. This exception is rarely used, but national security concerns may present a more compelling case to invoke it in Walker's case.

The second constitutional basis on which the defense may object to the use of Walker's statements is the Fifth Amendment's due process clause, which protects a suspect against being coerced into confessing. In ruling on whether Walker was coerced by the government into confessing, the judge must decide where to draw that fine line between where free will ends and compulsion begins.

Walker may argue he was coerced by being held incommunicado for forty-five days and by forceful tactics by the interrogators themselves. When he appeared on CNN, he was wounded and heavily drugged on morphine. If Walker can show that condition persisted during his interrogation by the government, he may convince the judge his due process rights were violated. Courts, however, are generally hesitant to exclude statements on this ground.

The government will also seek to use statements Walker made on CNN shortly after his capture. Although non-governmental persons are not required to comply with Miranda, their interrogations may be challenged under the Fifth Amendment's due process clause. Walker objected to the taping of his conversation with CNN; yet, the lights and camera were turned on anyway. He was questioned by CNN personnel and made some very damaging admissions, which were broadcast repeatedly on CNN. It is undisputed that Walker was in great pain and heavily drugged on morphine when he spoke to CNN. That may be sufficient to exclude those statements.

Finally, James Brosnahan, an attorney hired by Walker's parents, has still not been allowed to speak with Walker. Under the Sixth Amendment, a defendant in a criminal case is entitled to the assistance of counsel once criminal charges have been filed against him. The government waited forty-five days to bring charges against Walker, perhaps in order to avoid an obligation to provide him with counsel.

The decision about whether to allow the jury to consider Walker's statements will be made by the judge before trial. This determination will take place after hearing testimony by the government interrogators and, perhaps, Walker himself. Unfortunately, when the versions of events surrounding interrogations conflict, judges often believe the government and not the defendant. The case against Walker was intentionally brought in the United States District Court for the Eastern District of Virginia, reputedly one of the most conservative federal courts in the country.

John Walker is charged with conspiracy to murder United States nationals abroad as well as lesser charges. Conspiracy, often based on guilt by association, is not difficult to prove. Walker's statements to the government and to CNN are crucial to the prosecutor's case. In spite of intense public pressure to admit them, the judge should make a considered decision based on the law.

January 18, 2002

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Discussion

JURIST welcomes your reaction to our columns and op-eds...

• Saturday January 19, 2002 at 12:33 pm
  It should be noted that the Supreme court has never squarely addressed the issue of whether or not the fifth amendment is applicable to overseas interogations of either U.S. citizens or foreign nationals. Most of the case law has involved military courts. A few appellate court decisions do exist, mostly extending fifth amendment protections against coerced statements. It is a bit less clear if overseas suspects are entitled to Miranda warnings and, if so, if the standard for voluntary waiver will be the same as in the United States.
  
  Brian MacNamara
  John Jay College of Criminal Justice, CUNY
  New York/United /States

• Sunday January 20, 2002 at 3:42 pm
  RE: Brian MacNamara's comment, the absence of U.S. Supreme Court authority on the application of Miranda to interrogations conducted by U.S. agents on foreign soil, adds nothing to the discussion. The U.S. Supreme Court has long held that protections of the U.S. Constitution apply to U.S. citizens overseas. In Reid v. Covert, 354 U.S. 1 (1957), the high court addressed an attempt by Congress to subject the wives of U.S. servicemen to trial by military tribunals without the protection of the Fifth and Sixth Amendments. The Supreme Court held that it was unconstitutional to apply the Uniform Code of Military Justice to the trials of the U.S. women for capital crimes. Four justices rejected the idea that when the U.S. acts against citizens abroad it can do so free of the Bill of Rights. (Id. at p. 5.) The plurality added, "The United States is entirely a creature of the Constitution. Its power and authority have no other source. If can only act in accordance with all the limitations imposed by the Constitution. When the government reaches out to punish a citizen who is abroad, the shield with which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land." (Id. at pp. 5-6, fn. omitted.) Chief Justice Rehnquist, writing for a solid majority, relied upon and quoted Reid v. Covert in deciding U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990). More recently, the Supreme Court affirmed the constitutional underpinnings of Miranda. (Dickerson v. United States, 530 U.S. 428 (2000).) Were the Supreme Court to address whether Miranda applies to Walker's case, it would likely rule in Walker's favor. Anecdotally, it has been my experience as an appellate criminal defense attorney that FBI agents interrogating U.S. citizens in a foreign country give Miranda admonitions. I suspect the agents are following internally established guidelines that recognize the application of Miranda to interrogations of U.S. citizens conducted on foreign soil. Distinguished legal commentators likewise assert that Miranda has extraterritorial effect. (See, e.g. LaFave, Isreal and King, Criminal Procedure (3rd Ed, 2000) § 6.10, p. 371.)
  
  Jerome P. Wallingford
  Appellate criminal defense attorney
  California/USA

• Sunday January 20, 2002 at 8:21 pm
  Professor Cohn cites the correct case law, it just doesn't support her conclusion. Moran v. Burbine is the law of the land. The government is under no obligation to allow any attorny access to Walker. His lack of counsel is nothing more than a remote appellate issue. One that only the Supreme Court can reverse. Walker's written waiver of his right to remain silent and his right to counsel, is a factual issue. However, the case law strongly favors honoring those written waivers. Combined with Walker's voluntary statements to CNN and Newsweek, I think his chances of keeping the confession out of evidence are slim.
  
  Alan Bradley
  Attorney at Law
  Indiana, USA

• Monday January 21, 2002 at 2:24 pm
  While I agree with Jerome Wallingford that Miranda warnings should be provided prior to overseas interrogations, I am not so convinced as he that the Supreme Court will agree. He is correct that most lower courts addressing the issue have determined that U.S. law enforcement officials must provide Miranda warnings before custodial interrogation (see U.S. v. Bin Laden, 132 F.Supp.2d 168 (2001) for a good discussion). The Court has a penchant for surprise (Dickerson being one) and it would not be totally beyond the realm of belief that it might determine that certain guarantees don't apply overseas. Prof. MacNamara John Jay College of Criminal Justice, CUNY
  
  Brian MacNamara
  John Jay College of Criminal Justice
  NY/USA

• Friday January 25, 2002 at 7:23 pm
  Forced confessions are nothing new to America and to history. I am not surprised if this is one more case. Why should the burden be on the defendant to prove that he is innocent? (Which is in this case to prove that the confessions were not coerced.) If he admits that his confession was coerced, the government can simply say that it was not. One of the other lawyers said right here that the courts will believe the government over the defendant nearly always. If so, the courts are not the impartial judges they have the pretense to be. They, too, have interests to protect. How can we call this justice? If you ask me, the burden of proof is not on the defendant but on the government, which must prove that his confession is not coerced, when quite obviously the circumstances in which the confessions took place are in and of themselves conditions of coercion.
  
  Jared Melkisetian
  OK

• Saturday January 26, 2002 at 6:57 pm
  Far more relevant than the case law and precedent issues being raised is the question of what pretext the court will use to convict. Brian MacNamara's comment that "it would not be totally beyond the realm of belief that it [the court] might determine that certain guarantees don't apply overseas" is simply a polite way of saying that the court will bend the law in any manner and to any degree necessary in this case, with absolute impunity. An American criminal court will, after all, be under such extraordinary pressure to give the government what it demands that it is unlikely that anyone genuinely believes Walker will not be convicted--Miranda rights or no Miranda rights. What legal pretexts will be employed by the court to give the federal government the conviction it wishes is the only question to be resolved. Any jurist who can stand up to the enormous pressure that will be exerted by the White House would be a rare individual indeed!
  
  Steve Kowit
  Director, Middle-East Peace Coalition
  California

• Friday February 01, 2002 at 1:20 pm
  Just a lay person, but: The descriptive word "overseas" is used, in almost all discussions of the Walker case and the Guantamano prisoners. Do we (the U.S.A) not rent this land? And, as renters what is our obligations and rights? What are our rights? Is this not a piece of WS soil? This is a puzzle to me - is it a piece of US property, even though rented?
  
  Mildred Seewald
  U.S.A. Citizen
  New Mexico

• Tuesday February 05, 2002 at 9:59 pm
  Does anyone know whether the corpus delicti doctrine applies in federal prosecutions, above and beyond constituional considerations involving confessions. It seems to me that the evidence, apart from Walker-Lindh's statements, is pretty skimpy.
  
  Steve Smith
  Colorado

• Friday February 08, 2002 at 11:51 pm
  We are the land of the free and the home of the brave. Where everyone is treated fairly, particularly in criminal prosecutions. The Justice Department is proud when Justice is done, regardless of whether that means prosecution or conviction. We are a Government of laws and not of men. We recognize the importance of giving everyone accused of crime the benefit of every reasonable doubt. We understand the evil of mob rule and of prejudgment and of rules of liability that are created after the fact. Our agents are professional law enforcement officers who would not coerce a confession by subjecting a wounded, famished and frightened person to intense, extended interrogation. Particularly in a case of such importance with the possibility of the death penalty waiting in the wings, they would certainly take care to tape record any interrogation and would attempt to get the subject's signature on a transaction of his statement, after giving him a fair opportunity to review and correct it. John Walker-Lindh should thank his lucky stars that he will be brought to justice in in a land in which there is truly liberty and justice for all. When he is sentenced to spend the entirety of his adult life in prison, we can all bathe in the warmth derived from one more affirmation of the moral and intellectual superiority of our criminal justice system. There should be some reference in all of this to the blindfold worn by our Lady of Justice, but I think there is some difference of opinion as to the function that the blindfold serves.
  
  Henry J. Boitel
  New York

• Sunday February 24, 2002 at 10:26 pm
  When exactly was Lindh entitled to Miranda rights? When captured, when questioned by the CIA, when questioned by the FBI? So when would the public safety exception kick in?
  
  Sean
  US

• Tuesday February 26, 2002 at 10:52 pm
  Presumably, he will be entitle to subpeona everyone he talked to from the moment he was taken into custody to show that he asked for and was denied a lawyer. Lets see, who would that include: the soldiers who captured him, the CIA agents who interrogated him, the US attorneys who interrogated him, the military lawyers in Afganistan, the CNN reporters, the FBI agents, the Taliban legal defense fund lawyers... Oh, this could be fun. kw kw
  
  R. K. Weaver
  USA