Justice for All (95 page)

In doctrinal terms,
Miranda
was a bit hard to decipher. In one passage, Warren argued that the rules he was propounding were directed at restricting evidence that could be admitted at trial—a traditional role for the Supreme Court and certainly not “an innovation in our jurisprudence.” “The prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination,” Warren wrote.
⁵⁷
That suggested
Miranda
was a rule of admissibility, one commanded by the Fifth Amendment's protection against the use of compelled statements to implicate a defendant in a criminal trial. But barely had he completed that sentence before he created a different rule, not that improperly elicited testimony was merely inadmissible but rather that the Court was announcing specific rules for police conduct itself, in effect regulating not just courtrooms but police stations, too. “Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed,” Warren wrote. “The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.”
⁵⁸

That specific rejoinder—telling police precisely what they must inform a suspect—was in Warren's first thoughts on the case and it came perilously close to legislating. No words in the Constitution commanded such a specific warning, but Warren had tried in
Irvine, Mapp,
and
Escobedo
to nudge police conduct first by urging prosecutions of wayward police—to no avail—then, with more success, by limiting evidence acquired through misconduct. Now he resorted simply to asserting what police must do. Harlan had objected to Warren's approach from the first conference on
Miranda,
when he rejected the “radical changes” proposed by Warren.
⁵⁹
The final opinion had only made Harlan more concerned, and he replied with a forceful dissent, emotionally delivered. Harlan, by that time in his life nearly blind, flushed as he addressed his brethren and the audience.
Miranda
was handed down a year after the Watts riots had stunned the nation, and at a time when lawlessness was on the rise. The Court, Harlan warned in a quavering voice, was engaged in “dangerous experimentation” in the face of a “high crime rate that is a matter of growing concern.”
⁶⁰

In his written dissent, Harlan was no less determined and not much less impassioned. “One is entitled to feel astonished that the Constitution can be read to produce this result,” Harlan said of Warren's conclusion that Miranda's oral and written confessions were ruled inadmissible under the new doctrine. “These confessions were obtained during brief, daytime questioning conducted by two officers and unmarked by any of the traditional indicia of coercion. They assured a conviction for a brutal and unsettling crime. . . . There was, in sum, a legitimate purpose, not perceptible unfairness, and certainly little risk of injustice in the interrogation.”
⁶¹
Harlan, usually so restrained in manner and speech, called the ruling “heavy-handed and one-sided” and warned of grave consequences to society. “The social costs of crime are too great,” Harlan wrote, “to call the new rules anything but a hazardous experimentation.”
⁶²

So powerful was his argument that Brennan, having helped push Warren toward the opinion as written, drafted a concurrence to respond directly to Harlan, specifically rebutting Harlan's contention that the new rules laid down by the Court precluded states from developing their own safeguards on police interrogations. “Nothing we hold today prevents the States from devising and applying similar prophylactic means for avoiding the dangers of interrogation which at the same time eliminate the possibility of such contests of veracity between the police and the accused,” Brennan wrote.
⁶³
He neglected to note, naturally, that any such alternative would need to satisfy the Court that it was at least as effective as the warning that Warren had written for the police to deliver. Brennan showed his concurrence to Warren, who received it badly. In a relatively rare moment of disagreement between the two, they argued over its necessity and desirability. Warren was wary of suggesting to states that they could tinker with the warning, and worried, as always, about signaling a fractured Court. Brennan yielded and withdrew his concurrence.
⁶⁴

That was lucky for Warren, because he fought to hold his Court on
Miranda
until the day it was announced. Up until that morning, Warren had assumed he had the votes of Brennan, Black, Douglas, Fortas, and Clark. But Clark, who was often prone to second thoughts, bolted at the last minute. Kenneth Ziffren, Warren's clerk, was in a hallway downstairs at the Court that morning when one of Clark's clerks handed him a document. “He's dissenting and concurring,” the clerk warned Ziffren. “He's what?” Ziffren responded. Ziffren knew Warren would be furious, and so he ran back to the chief justice's chambers to inform him. Warren was not there, but Margaret McHugh told Ziffren he could find the chief down in the Court's barbershop. Ziffren bolted from the chambers and headed downstairs. Warren looked up, annoyed, as Ziffren burst inside. The news of Clark's defection irritated Warren even further, and he directed Ziffren to go dig up an opinion of Clark's that he could cite from the bench to embarrass the justice over his change of heart. Ziffren unearthed Clark's writing in
Mapp v. Ohio
and hastily put together a statement for Warren to use in order to remind Clark that he had drifted from his position in that case. Warren, his irritation with Ziffren now forgotten, praised him for finding just the right citation to punish Clark for stranding Warren and leaving him with a bare 5-4 majority. Warren read the statement as written, and a seething Clark then sent his clerks back to draft a more elaborate dissent to include in the formal record. That afternoon, the other justices and clerks had a picnic to celebrate the approaching end of the session. Clark and his clerks skipped the event. As word circulated of the last-minute fireworks, the other chambers were reminded that it was dangerous to cross Warren—and with that lesson, his leadership over the Court was reconfirmed. Leading the Court, as Warren well understood, involved more than grace and cajoling. It never hurts in politics for potential opponents to know that they are allowed no free shots at the leader.
⁶⁵

Police were thunderstruck. Bernard C. Parks was a rookie police officer in the LAPD when
Miranda
came down. “The word in the locker room,” he said, “was that we were done with effective policing.”
⁶⁶
North Carolina senator Sam Ervin similarly saw the ruling as emboldening criminals and curtailing police, both at the expense of victims. “Enough has been done for those who murder and rape and rob,” he harrumphed. “It is time to do something for those who do not wish to be murdered or raped or robbed.”
⁶⁷

In the political torrent that
Miranda
opened, it was easy to see Warren as pushing the vanguard of liberal judicial activism and to deplore him for handcuffing the nation's police. In fact, the decision was more correctly thought of as a melding of his deeper instincts—his unwillingness to shrink from action once convinced that action was called for and yet also his lifelong search for a middle where others saw no room for compromise. For
Miranda
was, in fact, a compromise, as was evidenced by some of the civil libertarian response to it. John de J. Pemberton, Jr., executive director of the American Civil Liberties Union, did not endorse
Miranda.
To the contrary, he expressed “regret that the Court did not take the final step of stating that the privilege against self-incrimination cannot be fully assured unless a suspect's lawyer is present during police station interrogation. Only by such an affirmative step can the abuses of police station interrogation actually and finally be eliminated.”
⁶⁸
That contention was not limited to the civil liberties Left. In the months leading up to
Miranda,
Attorney General Nicholas Katzenbach and Judge David Bazelon had exchanged public letters on the question of when a suspect was entitled to a lawyer, with Bazelon arguing that a poor suspect should be able to have an attorney present at any stage of an investigation where a rich suspect could call on one—including, obviously, interrogation.
⁶⁹
Caught between those who demanded that only confessions given in the presence of a lawyer be admissible and those who argued any further restraints on police would only exacerbate crime, Warren chose—as he so often did—the middle, though undeniably a middle closer to the liberals than the conservatives. The ruling in
Miranda
, Warren wrote,

 

That was too far for Harlan and Katzenbach, not far enough for the ACLU or Bazelon. And yet if the centrist cast of
Miranda
was misunderstood at the time, so too did contemporary responses overimagine its impact. It did not flood the nation with murderers. In part because the Court, a week after its decision, took the practical and novel view that the rights secured by
Miranda
were to be applied only prospectively (except in the four instances that it actually decided with the ruling itself), the doors to jails were not thrown open. Through television and the movies,
Miranda
rights became embedded in American culture, their gruff recitation by detectives a staple of crime drama. Young Bernard Parks went on to become chief of the Los Angeles police department and then a member of that city's city council. Over the years he and his colleagues learned to live with the decision that so offended them in 1966. “The fears about
Miranda,
” he says now, “did not come true.”
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Indeed,
Miranda
did not even have the effect one might have anticipated for Miranda himself. Sent back for retrials on both the robbery and rape/kidnapping cases, Miranda was ably represented. His confessions to police were barred from evidence, and in the rape trial, the testimony of his victim also was limited, since she had positively identified him after he had confessed. Still, Miranda while in custody had admitted the rape to his girlfriend, and she now took the stand against him—that confession having not been “compelled.” Miranda was convicted again. He was sent to prison and remained there until paroled in December 1972. He promptly violated his parole and was returned to prison, finally emerging in late 1975. He was free for less than two months before he got into a barroom fight and was stabbed to death. Two men were brought in for questioning in connection with Miranda's murder. They were read their
Miranda
rights and waived them, but neither confessed. They were let go, and by the time police had collected enough evidence to charge them with the murder, both had fled. The murder of Ernesto Miranda remains unsolved.
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Warren's work in
Miranda
has been vindicated by time. Though the Court in the years since has carved out significant exceptions to Warren's opinion, it remains binding on the states, and its warnings have become a ubiquitous part of American culture. In 2000, Chief Justice William H. Rehnquist, not one to be accused of coddling criminals, wrote for his Court in explicitly affirming
Miranda
and overturning a congressional attempt to circumscribe it. By then, it had become so embedded in American law enforcement that some police groups urged the Court to uphold it. Though its reach has been curbed since Warren first wrote it in 1966,
Miranda
remains settled constitutional law.
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That is the long view, however. In its more immediate aftermath,
Miranda
threatened to reinvigorate the Warren Court's opponents. A less sympathetic president or Congress might have doomed the decision and threatened the Court that issued it. But by 1966, the Court was moving without those threats. Indeed, in September 1965, Johnson was sufficiently emboldened to insist that a historic alignment within American government was under way. “You can perform a great service,” he told one interviewer, “if you say that never before have the three independent branches been so productive. Never has the American system worked so effectively in producing quality legislation—and at a time when our system is under attack all over the world.”
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RALPH GINZBURG was a sleazy character, an inventive purveyor of dirty books, merrily preying on the frailties and weaknesses of his customers. Warren had seen his type before—in Bakersfield's saloons and whorehouses, where railroad men squandered a month's earnings in a single binge, on the
Rex
in Santa Monica Bay, where working men and women succumbed to the lure of gambling. Warren's Progressivism was solidified by those experiences, and none since had ever shaken those early convictions. When Ginzburg's business came before the United States Supreme Court, it mattered little to Warren that the works were of a marginal literary type. To Warren, Ginzburg was a smut peddler and deserved to be treated as one.

By the time Ginzburg brought his obscenity conviction to the Court, Warren had been attempting for a decade to construct a viable theory of obscenity that would achieve his basic aims—protecting the works themselves under the First Amendment while still finding a way to lock up those who trafficked in them. That was no small matter, for it required a way to make it a crime to sell or mail material that was constitutionally protected. But Warren was nothing if not stubborn, and he hammered away at the notion. Warren's first attempt came in 1957, when he tried out his doctrine in a concurrence to a Brennan opinion. In that case, a New York publisher and bookseller named Samuel Roth was convicted on four counts of mailing obscene material; he was sentenced to five years in prison and fined $5,000. Brennan's opinion for the Court insisted that the First Amendment did not “protect every utterance” and that obscenity, which he defined as material “appealing to prurient interest,” fell outside the Constitution's protections. Warren agreed in that result, but reached it differently. He wrote: