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It’s !

When cops ask you questions, ask for a lawyer and then STFU:

- I am not discussing how I’m doing or where I’m going.

- Am I free to leave?

- I am not answering any questions.

- If they ask to search anything: "I do not consent to a search."

- I want to speak to a lawyer.

One of the biggest obstacles to claiming those protections? Bill Clinton, Janet Reno, and Timothy McVeigh.

In short the AEDPA. 🧵

A lot of what follows about the AEDPA is found in consistently great reporting by Radley Balko @radleybalko

radleybalko.substack.com/p/the

Not surprisingly, John Oliver also did a great job of explaining how bad the AEDPA is. youtu.be/kpYYdCzTpps?si=kfFghd

But here, I’m focusing specifically on how AEDPA affects the Miranda protections.
A good law review that inspired this thread is here: digitalcommons.law.uw.edu/cgi/

/2

The Watch · The maddening irrelevance of Charlie Vaughn's innocenceBy Radley Balko

Asking for a lawyer is a super-power. It provides perhaps the strongest protection in US law. If a person in police custody responds to questioning by asking for a lawyer, the police must stop questioning the person about ANY crime.

Because the protections are so broad and powerful, SCOTUS has refused to apply them unless you make a “clear and unambiguous” request for a lawyer. That’s the rub. /3

[David Nathanson has moved]

People under stress and feeling intimidated rarely speak with perfect clarity. They’re afraid of saying things that will make the interrogator angry. So they equivocate, saying things like “Could I call my lawyer,” “I think I might want an attorney.” State court judges (who are often former prosecutors) could rule that these are ambiguous requests for a lawyer even if it’s clear from context that you were asking for a lawyer.

It's “lawyer dawg” level of stupid.
slate.com/news-and-politics/20
/4

Assume you gave up and said incriminating things.

The judge rules that the cops did not have to stop questioning you and allows your statements to the cops to be evidence at your trial. You get convicted. You appeal. The state courts deny your appeal because they also rule that “could I call my lawyer” is ambiguous.

Your next step is to file a federal habeas corpus petition, alleging that your constitutional rights (your Miranda rights) were violated.

/5

Before AEDPA, the federal court would just decide whether the state court was wrong and your rights were violated. After Clinton signed the AEDPA, the question was not whether the state court was wrong, but whether it was “unreasonably wrong.” This is sophistry in a statute. It's nonsense.
/6

The reasons for the change are a grab bag of garbage and racism: terrorism, the death penalty, and “state’s rights.” That is, the state’s right to violate the constitution.

To get specific, when Timothy McVeigh bombed the federal building in Oklahoma City, lots of people assumed it was Islamic terrorists, not fever-brained white nationalists (aka racists).
/7

The Department of Justice - whose prior efforts to exploit the first World Trade Center bombing were stalled - had a wish list just waiting for such an opportunity. They rolled out the AEDPA in less than a week. And legislators cowed or ‘Murica, immediately rolled over. Bill Clinton signed AEDPA into law.
/8

But the AEDPA applies to *every* conviction. Not just terrorism. Not just death penalty cases. It severely restricts habeas corpus even though the right to habeas corpus is specifically enshrined in the Constitution.
/9

All of this bad enough for the person who was convicted. It gets worse for everyone else, thanks to the AEDPA and disingenuous judges and prosecutors.

The decision in your habeas corpus case under AEDPA was “this was wrong, but it wasn’t unreasonably wrong. You lose.” That decision goes in the law books.

/10

Now someone else gets arrested and says “could I call my lawyer” but they say it loud and insistently. To a non-obtuse person, it’s a request for counsel. The cops ignore it.

The newly arrested person gets charged in state court and asks to have their statements to the cops thrown out.
/11

But some obtuse, dumb, or willfully blind judge or prosecutor goes to the law books and sees your prior case where you said “could I call my lawyer” and you lost under AEDPA. So now, even though the decision to allow the jury to hear your statements was *actually wrong* the judge in the new case says that that person did not invoke their right to counsel either. They lose. People keep losing. And with every case like this, the law gets worse thanks to AEDPA.
/12

The AEDPA is an abomination. It’s obscene. It deliberately undermines your constitutional rights.

As with every post, I'm a lawyer in the USA. These comments are based on law in the USA. (And they apply to all people in the USA, whether or not they are citizens.) Some US states provide more protections than this. /END