'Miranda' makes interesting topic for Law Day panel discussion




PHOTO #1 Panelists discussing Law Day topic "Miranda: More than Words" were, left to right: Timothy McMorrow, formerly appellate attorney in the Kent County Prosecutors' Office and now contract commissioner for the Michigan Supreme Court; David Dodge, defense attorney, of Dodge and Dodge; and Professor Tonya Krause-Phelan of WMU-Cooley Law School, a former assistant public defender. McMorrow is casing his glance at moderator Matt Vicari, not shown.

PHOTO #2: The 50-years-in-practice honorees, left to right: H. Rhett Pinsky, D
aniel J. Kozera, Michael F. Kelly, and Philip M. Idema, with presenters GRBA President Pat Geary (back) and Young Lawyers Section President Ryan McKnight.

PHOTO #3: WMU-Cooley Law School Grand Rapids campus Dean Nelson Miller.

PHOTO #4: Pat Geary, right, presented Courtney Quist with the President’s Award.

By Cynthia Price

Legal News

Fifty years have passed since the  U.S. Supreme Court ruled in Miranda v. Arizona that someone in custody undergoing interrogation must be advised of the right to remain silent, the right to have an attorney present, and other rights.

What have since come to be known as “Miranda rights” have become so ingrained in the public’s mind, particularly through television and movies, that it is difficult to remember a time without them. But it is important to recognize that the decision was controversial at the time, and the 5-4 decision could have gone the other way.

The National Law Day Committee, which designates a topic for the many celebrations countrywide, chose “Miranda: More than Words” for 2016.

In a bit of a departure from previous years, the Grand Rapids Bar Association and Western Michigan University-Thomas M. Cooley Law School held a panel discussion on the topic, rather than a single speaker, with plenty of time left for questions and comments.

Prior to the three distinguished panelists taking their places, the GRBA honored a number of people, and WMU-Cooley’s Dean Nelson Miller gave out its public service award.

The honorees included six attorneys who have been in practice for 50 years. GRBA President Pat Geary of Smith Haughey Rice and Roegge, noting that “longevity is a topic personally close to my heart,” joined Young Lawyers Section President Ryan McKnight in recognizing Philip M. Idema, Michael F. Kelly, Daniel J. Kozera, and H. Rhett Pinsky for half a century of service. Kenneth Oosterhouse and David Wahr, unable to attend, were also honored.

Teresa Weatherall Neal, Grand Rapids Public Schools Superintendent, received the Liberty Bell Award, which goes to a non-lawyer leader who has advanced legal or civic causes, from committee chair Bradley Glazier.

The President’s Award, for a person who has given generously to the Bar Association, went to Courtney Quist.

Honored with the Donald R. Worsfold Distinguished Service Award was Paul R. Abrahamsen of Legal Aid of Western Michigan. So dedicated is Abrahamsen, said presenter and former GRBA President Susan Keener, that his license plate reads “Pro Bono.”

WMU-Cooley’s Marion P. Hilligan Public Service Award, given out since 2009, honored former judge James Redford, now Director of Michigan’s Veterans Affairs Agency. Redford, who could not be present, served as a Judge Advocate General and General Counsel to the governor as well.

More information about some of these honorees is forthcoming in future issues of Grand Rapids Legal News.

Then, panel moderator Matt Vicari of Miller Johnson gave brief opening remarks before introducing the panelists. “When I started out I read every word of Miranda,” he said. “There’s been a recent federal filing to talk about this topic, so it’s very timely.”

Panelists were Timothy McMorrow, well-known from his 33 years at the Kent County Prosecutor’s Office and now a Contract Commissioner for the Michigan Supreme Court; David Dodge of Dodge and Dodge, who has been a private-practice defense attorney since 1974 after serving for three years as a Judge Advocate General in the U.S. Marine Corps followed by a year in the Kent County Prosecutor’s Office; and Visiting Professor Tonya Krause-Phelan, who teaches criminal law at WMU-Cooley Law School and was formerly a private defense attorney as well as an assistant defender with the Kent County Office of the Public Defender.

The three had different approaches to the topic. With his usual precision, McMorrow pointed out, “The fifth amendment of the United States Constitution, contrary to what most people think, does not give the right to people not to incriminate themselves, it gives them the right not to be compelled to incriminate themselves.”

The background of the Miranda decision, he said, is that SCOTUS  had been hearing a number of cases where interrogation techniques, McMorrow said, appeared quite unfair, even denying a suspect the right to a lawyer when he asked for one, as in Escobedo v. Illinois. Resulting confessions were thrown out as false. He also noted that in a 2000 decision, the court reaffirmed the need for Miranda advising, in part because it had become so much a part of the law.

Dodge agreed. “The implementation is part of our fabric and has been incorporated in police methodologies, but in addition, most of the statements nowadays are recorded and that helps everyone,” he said. He played a brief audiotape of an interrogation used recently in court, in which his client says he is trying to do whatever they ask him to. The interrogator doggedly pursues his technique, saying over and over the client is just a nice guy who made one mistake, and he should own up to it.

Noting that such an approach is phase one of standard procedure, Krause-Phelan talked about the nearly-universal Reed interrogation techniques, and added that a close reading of the Miranda decision indicates, “The Supreme Court created a presumption that all custodial interrogations are inherently coercive.” She noted that national discussions on how to make interrogation even less coercive focus on four reforms: first, as Dodge had noted, recording everything; second, substituting something called PEACE (Plan/ Prepare, Educate, Account, Conclude and Evaluate) for the Reed techniques; third, preventing others involved in a case, such as lab technicians, from knowing that a defendant has confessed; and, finally, giving jury instructions which acknowledge that confessions are not always reliable.

Questions ranged from how to give Miranda rights in dangerous situations to what constitutes “in custody.”