By Burt Rose
The DISTRICT OF COLUMBIA COURT OF APPEALS sitting en banc has issued an Opinion in the matter of
UNITED STATES v. JAMES DORSEY, APPELLANT, No. 06-CF-1099 (January 3, 2013). This was an appeal from the Superior Court of the District of Columbia. The Appellant James Dorsey was convicted after a jury trial of assaulting and robbing an elderly street vendor. The videotape of Dorsey’s confession, introduced at his trial by the prosecution in its case-in-chief, was the most compelling evidence against him.
In this appeal, Dorsey contended that the trial court erred in admitting the confession. While he was in police custody, Dorsey “endured a grueling overnight interrogation” during which detectives violated the rules of Miranda v. Arizona and Edwards v. Arizona by continuing to press him to confess after he invoked his Fifth Amendment rights – both his right to cut off further questioning and remain silent, and his right to have counsel present during his questioning. When the detectives returned Dorsey to his holding cell, he still had not incriminated himself. Approximately seven hours later, however, Dorsey called out from his cell and asked for a second meeting with the detectives, saying he wanted to confess. He proceeded to do so without explicitly waiving his constitutional rights.
The lower court concluded that, notwithstanding theMiranda and Edwards violations, Dorsey validly initiated his second meeting with the detectives and waived his rights, holding that Dorsey was motivated to confess by feelings of remorse. However, the Court en banc ruled that Dorsey’s initiation and waiver were invalid because he had been “badgered” into giving up his rights and applied the rule announced in Edwards that a suspect in police custody who has invoked his Fifth Amendment right to counsel may not be interrogated further unless the suspect initiates the conversation with the police and waives his Miranda rights knowingly, intelligently, and voluntarily.
The record shows that over five-and-one-half hours, the detectives persisted in trying a variety of techniques to persuade Dorsey to give in and confess. They deprived him of needed sleep, ignored his evident physical discomfort and symptoms of alcohol withdrawal, and emphasized his powerlessness. They disparaged Dorsey’s desire to talk to a lawyer and to go to court, implying that counsel would give him bad advice and that he could not receive a fair trial. They told him to stop lying, presented him with additional incriminating facts, and insisted that his “story” was “falling apart” as the evidence against him mounted. The interrogator said that he would be more “sympathetic” than a court would be in this “high profile case” that had made “everybody . . . outraged.” He appealed to Dorsey’s “conscience” and his feelings for his mother, encouraged him to call her, and opined that his mother herself would tell him to confess. “All you need to do now,” the detective recommended, “is explain to me, you know, some things went bad, I was tired. . . . I made a mistake, I need drug treatment. . . . You didn’t mean to hurt that lady, you know, if that’s what you want to say.” He reminded Dorsey of what was depicted on the videotape of the robbery and offered to “represent to the United States Attorney” that Dorsey did not mean to hurt the victim. Invoking both his and Dorsey’s experience with the criminal justice system, the detective warned Dorsey that the prosecutors would “up the charges” if he did not confess. “I’m telling you the truth,” he added, “Think about it, Think about it.”
The Court held that the detectives violated Edwardsby continuing to press Dorsey to confess after he had invoked his right to counsel. The government’s burden was to overcome the presumption that Dorsey succumbed to that pressure when he decided to talk to the police. Dorsey did not validly initiate the resumption of his interrogation within the meaning of Edwards after the post-invocation badgering he endured. Therefore, Dorsey’s confession should have been suppressed.