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In a distant sense, the famous Miranda decision—Miranda v. Arizona, 384 U.S. 436 (1966)—started in 1637, on the eve of the English Civil War, with the arrest of a cantankerous young Puritan by the name of “Freeborn” John Lilburne. Charged with the importation of heretical and seditious books into England, Lilburne was taken to the Star Chamber for one of its indelicate interrogations. For his refusal “to take a legal oath” and “to answer truly,” Lilburne was whipped, pilloried, fined, and imprisoned. Griswold, The Fifth Amendment Today (Harvard Univ. Press 1955). Four years later, the House of Commons declared Lilburne’s treatment illegal, and the House of Lords indemnified him; the privilege against self-incrimination was born.
Ernesto Arturo Miranda most certainly had never heard of John Lilburne, but he was to become a remote, and perhaps the most famous, beneficiary of what Lilburne had done more than 300 years earlier. Miranda was born in Mesa, Arizona, in 1941, the fifth son of an immigrant house painter from Sonora, Mexico. When Miranda was six, his mother died. Thereafter, his early life was a succession of conflicts with his stepmother, truancies from Queen of Peace Grammar School, and steadily worsening disciplinary problems. See Baker, Miranda: Crime, Law and Politics (Atheneum 1985).
An early watershed year came for Miranda in 1954, when he finished his eighth (and last) year of formal education and was convicted of his first serious crime. From then on, he became the prototype of a practiced recidivist. It was one illegal act, arrest, and conviction after another, with assorted incarcerations between 1957 and 1961 in Arizona, California, Texas, Tennessee, and Ohio. During one period of freedom, Miranda enlisted in the U.S. Army but, true to form, he was dishonorably discharged after going AWOL and then did hard labor at the post stockade at Fort Campbell, Kentucky.
By 1962, Miranda was out of jail and back in the Phoenix area. He had a job as a produce worker and lived with a “common-law” wife named Twila Hoffman. A hard-luck case with two children by a man she could not afford to divorce, Twila cohabited with Miranda and gave birth to his daughter, Cleopatra. Five years later, to Miranda’s rage and dismay, Twila would betray him by testifying for the state in his retrial after the famous Supreme Court victory.
Despite a job, family, and the appearance of momentary stability, Miranda could not break one of his worst and most dangerous habits—preying upon young women. According to the Phoenix police, Miranda repeatedly abducted, kidnapped, raped, and, occasionally, robbed an indeterminate number of young women. His modus operandi was so rigid and his cruising grounds so limited that, in March 1963, his beat-up Packard was spotted and his license plates were recognized by a recent victim very near where she had been abducted just a week earlier. With the victim’s description of the car and a partial license plate number, detectives soon appeared at Miranda’s door.
On March 13, 1963, Phoenix Police Officers Cooley and Young arrested Ernesto Miranda, took him to the station house, and placed him in a lineup. The victim could not positively identify him but wanted to hear the sound of his voice. After the lineup, Miranda asked the police how he had done, and they dissembled, telling him that he had flunked and distinctly implying that there had been a positive identification.
Whether he was overwhelmed by the interrogation or believed the jig was up, Miranda confessed to the rape-kidnapping charge that, three years later, came before the Supreme Court. At the same time, he owned up to a 1962 robbery and kidnapping; this charge was not taken to the Supreme Court, and that would later surprise, vex, and embarrass those of us who represented him. As would be important later, Miranda’s two confessions were virtually identical—made at the same time, in the same place, to the same officers, and under the same circumstances.
After unburdening himself to Officers Cooley and Young, Miranda was taken to meet the rape victim so that she could hear his voice. Asked by the officers in her presence whether this was the victim, Miranda said, “That’s the girl.” Not surprisingly, given the circumstances, the sound of Miranda’s voice was apparently extremely useful; the victim was able, right then and there, to identify him as the culprit, without doubt or further hesitation.
After this creative law enforcement work ended, Miranda wrote his confessions down on mimeographed police forms. At the top of each sheet, above the space for his self-incrimination, was the printed certification that the confessor makes “. . . this statement voluntarily and of my own free will, with no threats, coercion or promises of immunity and with full knowledge of my legal rights, understanding any statement I make may be used against me.”
Despite the boilerplate recitation that Miranda was confessing “with full knowledge of my legal rights,” he really was not informed, as most of the American legal community now knows, of his “full legal rights.” Written in what author Liva Baker aptly describes as a “spidery cursive hand,” Miranda’s rape and kidnapping confession, in its unexpurgated form, was as follows:
Seen a girl walking up street stopped a little ahead of her got out of car walked towards her grabbed her by the arm and asked to get in the car. Got in car without force tied hands & ankles. Drove away for a few miles. Stopped asked to take clothes off. Did not, asked me to take her back home. I started to take clothes off her without any force, and with cooperation. Asked her to lay down and she did, could not get penis into vagina got about 1/2 (half) inch in. Told her to get clothes back on. Drove her home. I couldn’t say I was sorry for what I had done. But asked her to say a prayer for me.
State v. Miranda, 98 Ariz. 18, 28, 401 P.2d 721 (1965).
Miranda was bound over for separate, back-to-back trials scheduled for June 1963 before Maricopa County Superior Court Judge Yale McFate on the robbery and rape charges. Assigned to the defense in each case was a 73-year-old lawyer by the name of Alvin Moore. Years before, Moore had obtained his law degree by correspondence from the LaSalle University School of Law in Chicago. He was paid $100 for each Miranda trial from county funds. Despite his lack of criminal expertise, Moore accepted this representation at the specific request of Judge McFate. Even doing his best, Moore could not contain his revulsion for Miranda and, in a striking statement, told the jury this about the job he had to do: “You know, perhaps a doctor doesn’t enjoy operating for locked bowels, but he has to.”
No matter his limitations or aversions, Moore did provide a foundation for later, more famous proceedings. When the prosecutor offered Miranda’s written confession in evidence with Officer Cooley on the witness stand, Moore conducted the following voir dire:
Q: Officer Cooley, in the taking of this statement, what did you
say to the defendant to get him to make this statement?
A: I asked the defendant if he would tell us, write the same
story that he had just told me, and he said that he would.
Q: Did you warn him of his rights?
A: Yes, Sir, at the heading of the statement is a paragraph typed
out, and I read this paragraph to him out loud. . . .
Q: But did you ever, before or during your conversation or before
taking this statement, did you ever advise the defendant
he was entitled to the services of an attorney?
A: When I read—
Q: Before he made any statement?
A: When I read the statement right there.
Q: I don’t see in the statement that it says where he is entitled
to the advise [sic] of an attorney before he made it.
A: No, Sir.
Q: It is not in that statement?
A: It doesn’t say anything about an attorney. Would you like
for me to read it?
Q: No, it will be an exhibit if it is admitted and the jury can read
it, but you didn’t tell him he could have an attorney.
State v. Miranda, 98 Ariz. 18, 27–28, 401 P.2d 721 (1965).
In pursuing these questions, Moore was obviously thinking about Gideon v. Wainwright, 372 U.S. 369 (1963), which had been decided only five days after Miranda’s confession. Presumably based on Gideon, the use of Miranda’s confession was protested by Moore. He said, “We are objecting because the Supreme Court of the United States says a man is entitled to an attorney at the time of his arrest.” Judge McFate overruled the objection, and the confession was received in evidence.
Not surprisingly, Miranda was convicted of rape and kidnapping. The robbery case had already proceeded in a parallel fashion: The confession was introduced; an off-center objection was made; the objection was overruled; and Ernesto Miranda was convicted of yet another felony.
Barbering in Florence
For the rape conviction, Judge McFate sentenced Miranda to 20 to 30 years. For the robbery conviction, the judge stacked on an additional 20– to 25-year consecutive term. After his sentencing in June 1963, Miranda was taken to the Arizona State Prison in Florence, a bleak and forbidding place where summer temperatures go as high as 115 degrees. When he began serving his time and working as a prison barber, Miranda was just another anonymous con, but one relegated to second-class status because he was, in prison parlance, a “rape-o.”
Meanwhile, Moore appealed both convictions to the Arizona Supreme Court; he filed his briefs in December 1963. Then, while Miranda barbered in prison and Moore waited in Phoenix, the cases came to a standstill in the Arizona appellate system. Eventually, some 16 months later, in April 1965, the Arizona Supreme Court affirmed both convictions in two separate decisions. In the rape opinion, Miranda v. State, 98 Ariz. 18, 36, 37, 401 P.2d 721 (1965), the court dealt squarely with the confession issue. It found Moore’s trial objections wanting; relied on the boilerplate recitations in the confession form as an indication that Miranda “understood his legal rights”; distinguished Escobedo v. Illinois, 378 U.S. 478 (1964); and concluded that “it was proper to admit the statement in evidence.” In the robbery opinion, Miranda v. State, 98 Ariz. 11, 14, 401 P.2d 716 (1965), the court noted in passing that Miranda had “confessed to the robbery,” but the court never addressed the legality or admissibility of the confession.
After their release in April 1965, these two appellate decisions came to the attention of Robert J. Corcoran, who is now a justice on the Arizona Supreme Court and who was then looking, on behalf of the American Civil Liberties Union, for a case that would allow the U.S. Supreme Court to formulate more uniform and objective right-to-counsel standards than the case-by-case approach in Escobedo. A former prosecutor, Corcoran knew well that confessions were often obtained from uneducated suspects who had not the vaguest idea what their rights were.
In June 1965, Corcoran called John J. Flynn, a partner at Lewis and Roca in Phoenix. Corcoran talked to Flynn about taking on Miranda’s cases. A World War II combat veteran and former criminal prosecutor, Flynn was by then a legendary criminal defense lawyer. He was as brilliant in the courtroom as he was feckless in law firm economics. With hardly a pause, Flynn agreed to take Miranda’s cases. He then enlisted another partner, John P. Frank, a former law clerk to Justice Hugo Black and Supreme Court historian, who was keen for any constitutional battle, whether for a social pariah like Miranda or for a member of the corporate glitterati. Over the philosophical objections of some and the monetary concerns of others, the firm formally accepted the pro bono representation of Ernesto A. Miranda, with Flynn and Frank leading a group of eager young lawyers.
One of the first decisions made by Miranda’s new team was to take the rape case, but not the robbery case, to the Supreme Court. Though Alvin Moore’s objections to both confessions were far from perfect, his objection was better in the rape case. Moreover, the Arizona Supreme Court had confronted the confession directly in its rape opinion but had made only a passing reference in the robbery opinion. Even if the robbery case was left behind, there would be no problem, we reasoned, because if one confession was unconstitutional, then surely the other one would be too. Or so it seemed then.
The constitutional thrust and parry in Miranda need not be repeated here. The story has been told before. It is enough to say that, on June 13, 1966, Chief Justice Warren announced the Court’s decision; it reversed the Arizona Supreme Court, overturned Miranda’s rape conviction, and held that suspects in custody must be explicitly told of their constitutional rights before their statements made to police could be admissible.
The victory contained a considerable surprise: The Court’s decision was based on the Fifth Amendment. Like Alvin Moore before us, we had treated the case principally as a Sixth Amendment right-to-counsel matter and not as a Fifth Amendment privilege-against-self-incrimination problem. But who worried about such technicalities? Regardless of grounds, our client had scored a great victory and had uncapped, at the same time, a gusher of publicity—for him and us.
For a then small Phoenix law firm, this was a moment of real exultation. Although we joyfully reveled, bathed, and splashed in the limelight, there were, in retrospect, reasons for tempering our excited pride. For one thing, Miranda might have been so inevitable after Escobedo v. Illinois, 378 U.S. 478 (1964), that even a dentist could have handled the case and won. Besides, our personal triumph may have been a fluke. The decision is called “Miranda,” and the distinction was ours for the mostly accidental reason that Miranda’s petition was filed before those of Vignera, Stewart, and Westover, whose convictions also were reversed in the same opinion.
As it turned out, the party did not last long. Just seven days later, the law gods turned on us with the decision in Johnson v. New Jersey, 384 U.S. 719, 732 (1966). Again, Chief Justice Warren wrote for the Court, but this time he said, to our astonishment, “that Escobedo and Miranda . . . should not be applied retroactively.” If the Miranda decision applied only to the future and not to the past, then Miranda’s robbery conviction—the one that our newly famous law firm did not appeal—would be untouched by Miranda’s own Supreme Court triumph and would stand as an unappealable finality.
The situation was bizarre: When Miranda simultaneously made two confessions on March 13, 1963, at the same time, at the same place, to the same officers, and under identical circumstances, one was constitutional and the other was unconstitutional. Even though this had never happened before in the history of American constitutional law, the uniqueness did nothing to ease our post mortem pain.
Meanwhile, down in Florence at the Arizona State Prison, Ernie was barbering away, ecstatic about his victory in Washington, D.C. He was utterly delighted with all the publicity and remarkably forgiving about our prospectivity problem in the robbery case. Overnight, he was no longer just another con but a genuine hero among his prison peers, some of whom said admiringly, “Ernie doesn’t confess.” But the inmate sloganeers had it all wrong: Ernie had in fact confessed. To complicate matters, he may have taken this “Ernie doesn’t confess” business so literally that he never divulged certain vital information, even to his own lawyers.
After putting in uncountable research hours on the prospectivity issue and after learning the hard way what sui generis really means, we eventually filed a habeas corpus petition in federal district court. Based on a contorted version of the law-of-the-case principle, our thesis was that, when it declared Miranda’s rape confession unconstitutional, the Supreme Court also invalidated Miranda’s robbery confession without knowing it or saying it.
At the habeas hearing, John Flynn ignored virtually all of our contrived legal arcana and used an argument familiar to all lawyers who lack solid legal authority: “Your Honor, it is just plain wrong.” To our redemptive relief, the court agreed and, because of the obvious identity of the two confessions, vacated Miranda’s robbery conviction.
In February 1967, Miranda was retried for the rape and kidnapping charge before a sequestered jury. The trial lasted eight days, but only one half-day was spent before the jury. The balance of the time was devoted to sorting out what was connected to the unlawful confession and what was not. No longer defended by a disapproving grandfather, Miranda was this time represented by formidable John Flynn, who was made even more intimidating by the citations, motions, and briefs from his energetic young associates. The prosecutor was the resourceful Robert Corbin, who is now Arizona’s attorney general and whose task then was to convict Miranda without either the confession (which the U.S. Supreme Court had invalidated) or the rape victim’s voice identification (which the trial court excluded as being “fruit” from a “tree” poisoned by the illegal confession).
Then a stroke of prosecutorial good fortune hit Ernie Miranda squarely between the eyes. Twila Hoffman surfaced to become the state’s star witness and a testimonial substitute for both the confession and the victim identification. It seems that, while Miranda was in prison, Twila had found another man, had given birth to another baby, and was not eager for Ernie’s return.
Over forceful but unsuccessful objections, Twila told the jury about a conversation she and Miranda had in jail the day after his arrest, back in March 1963. According to her, he admitted raping the victim, and if that were not enough, he even implored Twila to approach the victim and offer her his felonious hand in marriage. With this incriminating and seemingly lunatic story in evidence, Miranda was convicted again of rape and kidnapping. He went back for more time and more barbering at the Arizona State Prison.
Much later, in 1971, Miranda was retried on the robbery and kidnapping charges. By then, John Mitchell had become the attorney general of the United States, and the “Miranda case” and “Miranda warnings” had become so politically controversial that Miranda was tried under an alias, “Jose Gomez”—a Spanish-language equivalent of John Doe. Even though Miranda’s robbery confession was excluded because of the ruling in the habeas corpus case, the robbery victim had made a clear-cut identification of him in 1963; she repeated her unequivocal observation to the jury in 1971. To make matters worse for Miranda, one of the jurors became suspicious about who this Jose Gomez really was and, evidently, was able to make a difference late in the deliberations.
After the verdict was read and the conviction was announced, the trial judge insisted that Jose Gomez tell the jury his real name. With his lawyers refusing to participate in this minor bit of gratuitous theater, Jose Gomez awkwardly introduced himself to the very people who had just convicted him. Confirming the necessity for the alias, the jury visibly and audibly reacted to the name “Miranda,” which was so widely publicized and much accursed during the law-and-order debates of those times.
The ultimate irony of this tale is that Miranda never served any less time as a result of his landmark victory. In fact, he may have served more time because of the scrutiny the Arizona Parole Board gave its most famous customer. After rejecting his applications on four successive occasions, the board finally, on a split vote, paroled Miranda in December 1972. His freedom, however, was not to last. When police later found him with a loaded pistol and amphetamines, Miranda was promptly returned, after another unsuccessful legal skirmish, to prison for more time and more barbering.
Eventually, after years of intermittent and extended confinements, Miranda was released from prison for the last time in March 1975. Unable to work as a barber because his felonies made licensing impossible, he got a job at a tire company. He supplemented his income by selling personally autographed Miranda warning cards for $1.50 to $2. I have one myself.
It was probably predictable, but Miranda was not to survive long on the outside. On January 31, 1976, Miranda participated in a card game at the La Amapola Bar in a seedy section of Phoenix called “The Deuce.” Charges of cheating were exchanged. A violent fight broke out. After the melee ended, Miranda retired to the men’s room to wash blood from his hands. Just as he emerged, two men attacked him. Whether the weapon was a lettuce knife, as one report says, or a linoleum knife, as another account states, the brutal and fatal fact is that Ernesto Arturo Miranda was mortally wounded that evening and was dead on arrival at Good Samaritan Hospital. He was 35 years old.
When police later arrested a Hispanic male for the murder, one of the first things they did was to take out a little, rectangular card and, in English and Spanish, read the words “You have the right to remain silent.” Whether the police knew it or not, those words represented a venerable right, which began with the excesses of the Star Chamber, developed during three turbulent centuries, traveled across a vast ocean and nearly an entire continent, and finally reached the lives of some violent social misfits at a squalid bar in Phoenix, Arizona.
“Freeborn” John Lilburne would have been proud.
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