Last week’s post dove into the controversial story of the West Memphis Three, focusing on how the interrogation of Jesse Misskelley offers a strong tool in the criminal procedure classroom for teaching the Fourteenth Amendment’s voluntariness doctrine. This week, in the final post of our series, we return to July 20, 2012, to the interrogation of James Holmes—just hours after he opened fire on a movie theater audience in Aurora, Colorado.
A primer on Miranda
Miranda day is always a fun class. That being said, I find that despite students’ familiarity with its warnings, they find the Miranda opinion alongside its implications considerably more difficult. I therefore take it slow because there is a lot to digest. In the context of this post, I will just hit a few highlights from the Court’s decision (though I won’t have time to cover the surrounding fascinating social circumstances).
To begin with, the Miranda Court frames the issue as follows: “the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way.” In those circumstances, the Court all but admits that the voluntariness test is simply not cutting it. “[P]rocedural safeguards,” the Miranda Court holds, are also necessary to protect the rights of criminal suspects. Thus, following the Court’s decision in Miranda, prosecutors may not use statements produced by custodial (i.e., police) interrogation unless they can demonstrate the use of “procedural safeguards” that protect the Fifth Amendment’s privilege against self-incrimination.
Embedded within those “procedural safeguards” are four rights, each of which must be clearly communicated to the suspect. First, the police must inform the suspect of his privilege against self-incrimination (often referred to as a suspect’s “right to silence”) “in clear and unequivocal terms.” Second, law enforcement must explain to the suspect the consequence of giving up his privilege to remain silence. Third, police must tell the suspect that “he has the right to consult with a lawyer and to have the lawyer with him during interrogation.” Finally, the police must tell the suspect that “if he is indigent a lawyer will be appointed to represent him.”
According to the Court, if the suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Those consequences are the same after a suspect invokes the right to counsel. That is, if a suspect at any time prior to or during the questioning states that he wants to consult with an attorney, “the interrogation must cease until an attorney is present.”
Notice that the Miranda right to counsel arises from the Fifth Amendment, rather than the Sixth Amendment. The Court creates this Fifth Amendment right to counsel because “[t]he circumstances surrounding an in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege” against compulsory self-incrimination. Accordingly, the primary purpose of defense counsel during custodial interrogation is to assure that the suspect’s ability to choose whether to speak or to remain silent is unfettered.
With the rights and consequences clarified, the question shifts to what triggers the need to provide the suspect with these “procedural safeguards.” The two Miranda triggers that emerge are “custody” and “interrogation,” and the Court offers preliminary definitions for both. Custody, according to the Miranda Court is the deprivation of one’s “freedom of action in any significant way.” Interrogation, for the moment, includes “questioning initiated by law enforcement officers after a person has been taken into custody . . . .”
To be clear, the Court notes that a suspect can waive his Miranda-privilege against self-incrimination and his Miranda-right to counsel before or during interrogation, but(!!) a “heavy burden” rests on the prosecutor to show that the suspect’s waiver is “knowingly, and intelligently” made.
James Holmes
Meet James Holmes
Born on December 13, 1987, James “Jimmy” Eagan Holmes grew up in the middle-class neighborhood of Oak Hills near Castroville, California. By all accounts, Holmes enjoyed a privileged childhood. But when he turned twelve, Holmes and his family relocated 400 miles south to the San Diego area, a move that Holmes expressed his disagreement with by trying to cut his wrist with cardboard. His father would later describe the relocation as a “pivotal” time in Holmes’s life.
Following the family’s relocation, Holmes became more socially withdrawn despite his mother going door-to-door in their new neighborhood to find playmates for him. Although Homes became more reserved, he remained engaged in his academic and extra-curricular life; he played trumpet in middle school, ran for his cross-country team, and played both football and soccer. He also excelled in the classroom. Described by his classmates as “crazy smart,” Holmes graduated from high school in 2006 and enrolled in the University of California, Riverside as a scholarship student that fall.
Holmes stood out for all the right reasons at UC-Riverside. As the university’s Chancellor, Timothy P. White, later recalled, “Academically, he was at the top of the top.” Holmes decided to major in neuroscience and, by all accounts, fit in with his classmates. He took snowboarding trips to the nearby mountains, went to dinner with friends, and generally “was no different from any other neuroscience student at UCR.” Ironically, and sadly, his program of study focused on “how we all behave.” He graduated in 2010 with highest honors and a bachelor’s degree in neuroscience—without incident.
Despite having assembled a deeply successful academic background, Holmes struggled to find a job after graduation. His mom and neighbors grew concerned that Holmes was “troubled and lonely.” He applied to a series of graduate schools, but received no acceptances.
But Holmes persisted in his quest to attend graduate school. After sending a second wave of applications, he was admitted to the University of Colorado-Denver’s Ph.D. neuroscience program and enrolled in June 2011. As part of his admission, he received a $21,600 grant from the National Institute of Health and a $5,000 stipend from the university. Unlike his high school and undergraduate programs, however, Holmes struggled in the classroom for the first time while attending graduate school. On the upside, he found his first girlfriend—Gargi Datta. The pair dated until Datta terminated their relationship in February 2012. Datta would later explain, “I told him I saw no future for us . . . . He never had highs and lows of emotion.”
Holmes was distraught after the breakup, though the two still maintained contact. During one March 25, 2012 Google Chat, Holmes wrote to her about “doing evil.” He also wrote to her about his “human capital” philosophy—one that he believed would cure his depression by adding to his human worth through the subtraction of human lives. Datta at first thought Holmes was joking, but later grew concerned as their exchange progressed; she advised Holmes to get help.
Unbeknownst to Datta, Holmes had already begun seeing a psychiatrist—Lynne Fenton—on March 21, 2012. Holmes had previously called student mental health services for help with what he described as social anxiety. When he confessed homicidal thoughts to a social worker, though, he was referred to Fenton. In the pair’s first session, Fenton’s concerns about Holmes grew when Holmes admitted that he thought about homicide three to four times per day. Holmes’s homicidal thoughts, however, were not sufficiently specific for Fenton to commence commitment proceedings.
The two met seven more times, the last of which included Fenton’s senior colleagues, for a total of approximately four hours. Fenton’s opinion about Holmes changed during their last, June 11, session when Holmes admitted he was dropping out of school, began making paranoid statements, and said he was “reading the writings of the Unabomber.” During that final session, Fenton noted that Holmes exhibited an “an angry edge.” Holmes then cut their final meeting short; he walked out of Fenton’s office without shaking her hand or saying goodbye. Fenton felt so uncomfortable that she broke confidentiality by contacting the campus threat assessment team.
But by the time of that final session, Holmes had already begun stockpiling an assortment of weapons, using his grant stipend to fund the purchases. In particular, Holmes had already purchased a high-powered AR-15 semi-automatic assault rifle, two tear gas grenades, a Remington 870 Express Tactical 12-gauge shotgun, and a Glock pistol.
Holmes would continue to stockpile weapons, tactical gear, and ammunition. He purchased a scope and non-firing dummy bullets on July 1, 2012. One day later, Holmes placed an online order with TacticalGear.com for an urban assault vest, a triple pistol magazine, an M16 magazine pouch, and a silver knife, which totaled $306.99 and included two-day shipping. Then, on July 6, he purchased a second Glock pistol from Bass Pro Shops. During that same period, Holmes also purchased online approximately 6,300 rounds of ammunition, beam laser lights, bomb-making materials and handcuffs. Finally, he bought chemicals from a science store that he could combine to create sparks. All totaled, UPS delivered roughly ninety packages to Holmes’s apartment. All of his purchases were lawful.
With his arsenal complete, Holmes detailed a plan to carry out a “mass murder spree” in his composition notebook, which the New York Times would later characterize as “a road map to murder.” Although the notebook was initially addressed to his mother, father, and sister, Holmes ultimately sent its contents—twenty-nine pages in all—to his former psychiatrist, Lynne Fenton, on July 19, 2012.
The shooting
Just hours after sending Fenton the notebook, Holmes purchased a ticket to the Century 16 movie theater’s midnight screening of The Dark Knight Rises in theater nine. Holmes got up roughly twenty minutes into the movie and left the theater through an emergency exit door, which he propped open using a plastic tablecloth holder. After visiting his car, Holmes returned to the theater “dressed in black and wearing a ballistic helmet and vest, ballistic leggings, throat and groin protectors, and [a] gas mask and black tactical gloves.” He threw two canisters of tear gas and opened fire on the crowd of movie spectators, using his shotgun, AR-15 (which ultimately malfunctioned), and Glock pistols. In all, he fired seventy-six shots—sixty-five from his AR-15, five from his handguns, and six from his shotgun—killing twelve and injuring seventy others.
The first 9-1-1 call came over police radios at 12:39 a.m. Officers responded to the theater in less than one minute, but they were never supposed to. In an effort to delay officers’ arrival on the scene, Holmes had set loud techno music to begin playing twenty-five minutes after he left for the theater with the hopes that it would prompt a neighbor to file a noise complaint. That complaint, Holmes anticipated, would cause a responding officer to open his door into a tripwire, detonating more than twenty homemade explosives throughout his apartment. Although one neighbor did knock on the door to complain, she neither opened it nor reported the music to the police. The explosives therefore never detonated, and the officers were available to quickly respond to scene of the shooting. There, officers found “complete chaos” and “[p]eople covered in blood.” Police apprehended Holmes just outside theater nine around 12:45 a.m.
The interrogations
Following his arrest, law enforcement conducted three separate interrogations of James Holmes on July 20, 2012. This post will focus specifically on the second of those three interrogations. But to provide context, the first interrogation followed immediately after Holmes’s apprehension. That first interrogation was brief and consisted of just a few questions. During the brief exchange, one officer asked Holmes “if there was anybody else with him.” Holmes responded, “No, it’s just me.” The third interrogation then occurred around noon that same day, when officers determined that they needed more information in order to safely defuse the explosives in Holmes’s apartment.
With that context in mind, let’s drill down on the second interrogation of Holmes. That second interrogation—conducted by Detectives Chuck Mehl and Craig Appel at the Aurora Police Department—occurred at 2:44 a.m. and lasted fewer than eight minutes. To begin, detectives greeted Holmes and asked him a few booking questions, as well as whether he needed anything to drink. Detective Mehl then inquired, “Do you need us to get you some help or are you good to talk to us?” Holmes replied, “Help as in counsel?” Detective Mehl replied, “No, no. As in making sure you’re ok physically. The paramedics check you out, are you okay there? You good to talk to us?” Holmes answered in the affirmative, which prompted Mehl to tell Holmes they first had “to get a couple things out of the way,” namely, Miranda warnings.
As Detective Mehl prepared to read Holmes his Miranda rights, Holmes interrupted and asked, “There weren’t any children hurt, were there?” Detective Mehl replied, “We’ll get to that.” Mehl then commenced advising Holmes of his rights and asked if he understood his right to talk to a lawyer and to have the lawyer present during questioning. Holmes responded, “How do I get a lawyer?” Mehl replied that they would talk about that. At the end of the warnings, Holmes said he wanted to “invoke the Sixth Amendment.” The detectives confirmed that he was invoking his right to counsel and acknowledged his affirmative response. But despite Holmes’s invocation, the detectives asked Holmes three additional questions about accomplices. One of those three questions was whether anyone else was with him at the theater, to which Holmes responded, “Except for the 100 people in the movie theater, no.” The interview terminated at 2:51 a.m.
How do the James Holmes interrogations benefit students in the classroom?
The second Holmes interrogation raises several Miranda-related issues, some straightforward and some more nuanced and complex. For purposes of this post, however, I’ll offer just two examples that hopefully illustrate how Holmes’s second interrogation can elevate student engagement in the Miranda classroom. First, I’ll explain how the second Holmes interrogation tests the limits of what the Miranda Court meant by the term “interrogation.” Second, we’ll consider what it means when a suspect “invokes” a Miranda right and, correspondingly, what happens (vs. what should happen) when an officer ignores the suspect’s invocation.
The scope of Miranda interrogation
I open initial classroom discussion by asking students simply whether Holmes was in “custody” for Miranda purposes during his second interrogation. Recalling the Miranda Court’s definition of custody—whether the suspect is “deprived of his freedom of action in any significant way”—students predictably have no trouble concluding that, yes, Holmes was in custody during the second interrogation.
The better question surrounds whether Holmes was subject to “interrogation” just before asking detectives an incriminating question. Let’s (re)set the stage, this time with a bit more detail. Before Detective Mehl began to provide Holmes with his Miranda warnings, the pair had the following exchange:
DETECTIVE MEHL: What I’d like to do here, uh, I’m sure you have some questions and we have some questions, ok? Before we have a chance to talk, ok, we gotta get a couple things out of the way. Then we’ll have a chance to talk and I’ll answer any questions you might have. Fair enough? Do you understand that?
HOLMES: Yes.
DETECTIVE MEHL: Ok. Umm . . . by the mere fact that you’re here at the police department, I’m sure you’ve seen this on TV one-hundred times. I’m going to read this to you. If you have any questions, please, feel free to ask. Ok?
HOLMES: The sign said, uh, “victims services unit-children something”. . . .
DETECTIVE MEHL: Yeah, well, what about that?
HOLMES: There wasn’t any children hurt, were there?
At this introductory point in the Miranda material, I have not yet had students read Rhode Island v. Innis—the Supreme Court’s seminal decision defining “interrogation.” Accordingly, students are often particularly torn on the question of whether Holmes was subject to interrogation in the above exchange. Detective Mehl was clearly on the cusp of providing Holmes with his warnings, but Holmes interrupted before he could do so. Whether Holmes interrupting Detective Mehl impacts the admission of his incriminating question makes for a lively introductory classroom conversation, the over-arching point of which is twofold. First, I want students thinking early-on that Miranda interrogation includes more than merely express questioning. Second, I want the class thinking expansively about what constitutes “incriminating.” That is, a suspect might incriminate herself through a traditional descriptive confession, a single incriminating statement, or, as happened in the second Holmes interrogation, by asking an incriminating question.
As an aside, Holmes’s defense team moved to suppress his question. In opposition, the state argued that Miranda “does not apply to questions asked by the defendant.” The circuit court ultimately admitted Holmes’s question, in part, because “it was a spontaneous and volunteered statement.” Moreover, it concluded, “Because the defendant’s statement about the sign was not elicited by any words or actions Detective Mehl should have known were reasonably likely to provoke an incriminating response, it was not the result of interrogation.” After reading Innis, students typically agree with the circuit court’s reasoning.
Invoking Miranda rights
Recall that after Holmes invoked his right to counsel, detectives further asked him three questions about accomplices, to one of which Holmes responded, “Except for the 100 people in the movie theater, no.”
In his motion to suppress, Holmes’s argued that his incriminating statement was inadmissible because he had invoked his right to counsel, and the interrogation therefore should have terminated. The state responded, in part, by asserting that the booking exception permitted admission of Holmes’s statement. Its argument, however, was not particularly well-formed: “Prior to advising the defendant of his Miranda rights, Detective Mehl asked the defendant a number of biographical questions. These questions, and the defendant’s answers, are admissible pursuant to the routine booking exception to the Miranda rule. They should not be suppressed.”
That exchange of arguments presents an opportunity to focus on three points of doctrine. To begin, I ask students whether Holmes invoked his Miranda right to counsel. You’ll recall that Holmes said he wanted to “invoke the Sixth Amendment” after being read his Miranda warnings by Detective Mehl. Even before students read or are otherwise familiar with the invocation standard proscribed by Davis v. United States, they are almost uniformly impressed that Holmes can articulate any form of request to exercise his rights. In my opinion, Holmes’s prior reference to a lawyer, before being read Miranda, alongside his mention of the Sixth Amendment makes my initial question an easy one to answer: Yes, Holmes invoked his Miranda right to counsel.
I then ask students to articulate what was supposed to happen following Holmes’s invocation. They can usually rattle off two responses: first that the interrogation should cease and second that Holmes’s statement (“Except for the 100 people in the movie theater, no.”) should be suppressed.
That preliminary conversation provides a strong entry point for the state’s booking exception argument. To aid students’ understanding of the booking exception, we discuss Pennsylvania v. Muniz, wherein the Court held that questions which “appear reasonably related to the police’s administrative concerns” fall outside the definition of “interrogation” for Miranda purposes (i.e., admits statements without prior-Miranda warnings). I would conclude that the booking exception is inapplicable to the question about whether there was anyone else with him in the theater because that question is not related to “police administrative concerns.” Or, stated differently, it seems a stretch to suggest that investigators’ questions about whether Holmes had an accomplice—asked after he invoked counsel—could somehow constitute non-investigative questioning about administrative procedures. That type of questioning, the Supreme Court said post-Muniz, more properly focuses on questions that are “normally attendant to arrest and custody.”
As for the third piece of discussion here, I ask the class whether Detective Mehl appropriately continued to question Holmes despite Holmes invoking his right to counsel. The answer—as students will come to see when we discuss New York v. Quarles—is that it depends. Quarles, in brief, provides a primary exception to Miranda when officers ask the suspect questions that are “reasonably prompted by a concern for public safety.” That is, Quarles permits the admission of statements taken in violation of Miranda. But even if Detective Mehl’s questioning of Holmes constitutes a public safety interrogation, and I think it does, Quarles itself left open an important question: if a suspect invokes the Miranda right to counsel during a Quarles interrogation, must investigators cease questioning? The Supreme Court has not answered that question, and lower courts have reached differing conclusions. But the point is this: there is a lot going on in Holmes’s second interrogation, and it serves both to introduce basic Miranda framework and help preview some of its doctrinal nuances that are, at least in my class, still to come.
Wrapping up
This post closes down our ten-part series on bringing famous defendants into the criminal procedure classroom. If you missed any of them (or just want to re-read one), you can access each here:
Bringing famous defendants into the Criminal Procedure classroom
Teaching Strickland v. Washington through the case of Adnan Syed
O.J. Simpson & Exigent Circumstances
John Wayne Gacy & Probable Cause
Alex Levin & the Fourth Amendment’s Exclusionary Rule
Aaron Hernandez & the Fourth Amendment’s Plain View Doctrine
Steven Avery & Search Warrants
TF Mafia & the Automobile Exception
The West Memphis Three & Fourteenth Amendment Voluntariness
If you enjoyed reading these posts and want to think more about how to incorporate [in]famous defendants in your own criminal procedure classroom, you might enjoy this extra-credit reading. To close, I want to thank my very talented research assistant, 3L Alex Carroll, who put a significant amount of time and effort into editing these posts. I’d also like to thank Dan Filler and Steve Lubet for the thoughtful invitation to blog here. Finally, I’d like to thank the many of you who were kind enough to send me notes along the way about this project, ranging from encouraging to helpfully inquisitive. If I can help in any way, please keep your emails coming.
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