Petition for Writ of Certiorari — Cedric A. Gray, Petitioner v. Wisconsin

No.______

________________________________________________________________________

In the

Supreme Court of the United States

________________________________________________________________________

Cedric A Gray,

Petitioner

v.

State of Wisconsin

Respondent

On Petition for Wit of Certiorari to the Wisconsin Court of

Appeals District 2

________________________________________________________________________

Petition For a Writ of Certiorari

________________________________________________________________________

Steven Roy

Counsel of Record

1310 O’Keeffe Ave. #315

Sun Prairie, WI 53590

608.571.4732

Steven@stevenroylaw.com

Question Presented

Should this Court overturn the prophylactic procedures

announced in Miranda v. Arizona and return to an interpretation of

the Fifth Amendment which is supported by the text, history, and

tradition of the Self-Incrimination Clause?

1

Parties to the Proceeding

The petitioner is Cedric A. Gray who was the defendant in the

circuit court, defendant-appellant in the Wisconsin Court of Appeals,

and the defendant-appellant-petitioner in the Supreme Court of

Wisconsin.

The respondent is the State of Wisconsin, who was the plaintiff

in the circuit court, and the plaintiff-respondent in subsequent

appellate proceedings.

Statement of Related Proceedings

This case arises from the following proceedings:

• State of Wisconsin v. Cedric Gray, 2024 WI 6 (Wis. 2024)(Order

denying review)

• State of Wisconsin v. Cedric Gray, State v. Gray, 21-AP-294, 2023

Wisc. App. LEXIS 721 (Wis. Ct. App.) (opinion affirming the

judgement of conviction)

• State of Wisconsin v. Cedric Gray, Racine County 2018-CF-401

There are no other proceedings in state or federal trial or appellate

courts, or in this Court directly related to this case within the meaning

of this Court’s Rule 14.1(b)(iii).

2

Table of Contents

Question Presented……………………………………….……………………1

Parties to the Proceeding………………………………..……………………2

Statement of Related Proceedings………………….….……………………2

Table of Authorities……………………………….……….………………….4

Petition for Writ of Certiorari………………………….…………………….9

Opinions Below…………………………………………………………………9

Jurisdiction..………………………………………………………………….…9

Constitutional, Statutory, and Regulatory Provisions Involved………..9

Introduction……………………10

Statement of the Case………………………………………………………..15

Reasons for Granting the Petition…………………………………………19

I. Miranda and its progeny replaced a categorical constitutional

guarantee with malleable tests. The lower Courts are divided in

the application of these tests………………………………………..…19

II. The unpardonable vice of Miranda is not its unpredictability, but

its demonstrated capacity to admit confessions the SelfIncrimination Clause plainly meant to

exclude……………………………………………………………………..23

III. This case is an ideal vehicle for constitutional analysis ………..…26

Conclusion…………………………………………………………………..…27

Appendix

A. State v. Gray, 2023 Wisc. App. Lexis 721, 2023 WL 4348548 (Wis.

Ct. App 7/5/23)

B. State v. Gray, 2024 WI 6, 2023 Wisc. Lexis 650 (Wis. 10/30/2023)

C. Transcript of Recorded Interview

3

Table of Authorities

Cases

Arizona v. Roberson……………………………………………………….….13

486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988)

Ashcraft v. Tennessee…………………………………………………..…….12

322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944)

Ashcraft v. Tennessee………………………………………………..……….12

327 U.S. 274, 66 S.Ct. 544, 90 L.Ed. 667 (1946)

Berghuis v. Thompkins………………………………………………….14, 20

560 U.S. 370, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010)

Boyd v. United States…………………………..…………………………….25

116 U.S. 616, 635, 6 S.Ct. 524, 29 L.Ed. 746 (1885)

Bram v. United States…………..………………………….11, 19, 22, 24, 25

168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897)

Brown v. Illinois…………..…………………………….…………………….13

422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975)

Brown v. Mississippi………………………………………………………….12

297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936)

Chambers v. Florida………………………………………………………….12

309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940)

Culombe v. Connecticut……………………..……………………………….12

367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961)

Davis v. North Carolina,…………………………………………………….12

384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966)

Davis v. United States……………………..…………………………….14, 20

512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994)

4

Dickerson v. United States…………………….…………………………….14

530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000)

Dixon v. State………………………………………………………………….21

72 So. 3d 171, 36 Fla. L. Weekly D 1815 (Fla. Dist. Ct. App.

2011)

Fare v. Michael C.…………………………………………………………….13

442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979)

Fritts v. State………………………………………………………………….21

2013 Ark 505, 431 S.W.3d 227 (Ark. 2013)

Harris v. New York……………………………..…………………………….13

401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971)

Jones v. Harrington……………………………….………………………….21

829 F. 3d 1128 (9th Cir. 2016)

Lego v. Twomey……………………………………………………………….13

404 S.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972)

Leyra v. Denno……………………………..………………………………….12

347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954)

Malloy v. Hogan………………………..…………………………….13, 20, 22

378 U.W. 1, 84 S.Ct. 1489, 12 L.Ed. 2d 653 (1964)

Maryland v. Shatzer………………………………………………………….14

559 U.S. 98, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010)

McDonald v. City of Chicago…………………….………………………….11

561 U.S. 742, 758, 130 S.Ct. 3020, 177 L.Ed. 2d 894 (2010)

Michigan v. Mosley……………………………………………………….13, 24

423 U.S. 96, 96 S.Ct. 321, 46 L.Ed. 2d 313 (1975)

Michigan v. Tucker…………………………..……………………………….13

417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974)

5

Minnesota v. Murphy…………………………..…………………………….13

465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed. 2d 409 (1984)

Miranda v. Arizona…………………..………………1, 13, 14, 20-23, 25, 26

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.end 694 (1966)

New York v. Quarles………………………………………………………….13

467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984)

Nixon v. State………………………………………………………………….21

2013 MT 81, 369 Mont. 359, 298 P.3d 408 (Mont. 2013)

North Carolina v. Butler…………………………………………………….13

441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979)

Oregon v. Mathiason……………………………………………..…………..23

429 U.S. 492, 493, 97 S.Ct. 711, 50 L.Ed. 2d 714 (1977)

Reck v. Pate…………………………………………………………………….12

367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed. 948 (1961)

Rex v. Mills…………………………………………………………………….24

6 Car. &P. 146 (1833)

Salinas v. Texas……………………………………………………………….14

570 U.S. 178, 133 S.Ct. 2174, 186 L.Ed.2d 376 (2013)

Slaughter-House Cases….…………………..……………………………….11

83 U.S. 36. 16 Wall. 36, 21 L.Ed. 394 (1873)

Smith v. Boughton….…………………………..…………………………….26

43 F.4th 702, 710-711. (7th Cir. 2022)

State v. Bostick……………………………………………….……………….24

4 Harr. 563 (Del. 1845)

State v. Cornman………………………………….………………………….21

237 Ariz. 350, 351 P.3d 357 (Ariz. Ct. App. 2015)

6

State v. Gray………………………………………………………………….2, 9

2023 Wisc. App. LEXIS 721 (Wis. Ct. App. 2023)

State v. McInnis……………………………………………………………….21

962 N.W. 2d 874 (Minn. 2021)

State v. McNaughton……………………………..………………………….20

2017 ME 173, 168 A.3d 807 (ME 2017)

State v. Munir………………………………….………..…………………….21

209 A.3d 545 (R.I. 2019)

State v. Murphy……………………………………………………………….21

91 Ohio St. 3d 516,747 N.E.2d 765 (Ohio 2001)

State v. Nichols……………………………………….……………………….21

361 Ore. 101, 390 P.3d 1001 (Or. 2017)

State v. Payne………………………………………………………………….21

233 Ariz 484, 314 P.3d 1239 (Ariz. 2013)

State v. Rice…………………………………………………………..……….21

573 SW 3d 53 (Mo. 2019)

Twinning v. New Jersey………….…………………………….11, 12, 13, 19

211 U.S. 78, 107, 29 S. Ct. 14, 53 L.Ed. 97 (1908)

United States v. Sherrod……………………..………………………….22, 26

445 F. 3d 980 (7th Cir. 2006)

Vega v. Tekoh………………………………………………………………….14

142 S.Ct. 2095; 213 L.Ed. 479 (2022)

Ward v. Texas………………………………………………………………….12

316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663 (1942)

Watts v. Indiana………………………………..…………………………….12

338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949)

Williams v. State……………………………………..……………………….22

445 MD 452, 128 A.3d 30 (Md. 2015)

7

Constitutional Provisions

U.S. Const. Amend. V……………………………………..………….1, 10, 19

U.S. Const. Amend. XIV………………………………..……………….11, 12

Statutory Provisions

28 U.S.C. §1257(a)…………………………………………………….……….9

Other Authority

Joseph Story, Commentaries on the Constitution (1833)…….…………10

William O. Russell, Treatise on Crimes and Misdemeanors (1896

ed.)………………………………………………………………………..……..11

William Blackstone, Commentaries on the Laws of England…………13

8

Petition for Writ of Certiorari

Mr. Gray respectfully petitions for a writ of certiorari to the Wisconsin

Court of Appeals, District 2, in State v. Gray, 21-AP-294, 2023 Wisc.

App. LEXIS 721.

Opinions Below

The Wisconsin Supreme Court’s order denying review has been

reproduced at Appendix B. The court of appeals opinion affirming the

decision of the circuit court is unpublished, but can be found at 2023

Wisc. App. Lexis 721, or 2023 WL 4348548, and is reproduced at

Appendix A..

Jurisdiction

The Supreme Court of Wisconsin issued its order denying review

on October 30, 2023. A copy of this order is reproduced at Appendix B.

The jurisdiction of this Court is invoked under 28 U.S.C. §1257(a).

Constitutional, Statutory, and Regulatory Provisions Involved

The Fifth Amendment provides: “No person…shall be compelled

in any criminal case to be a witness against himself”.

The Fourteenth amendment provides: “No state shall make or

enforce any law which shall abridge the privileges or immunities of

citizens of the United States; nor shall any state deprive any person of

life, liberty, or property, without due process of law”.

9

Introduction

In behavioral economics, there is a concept known as the “sunk

cost fallacy”. This concept describes the tendency of individuals and

organizations to continue devoting resources to projects which fail to

yield a profit simply because the organization has already invested

significant resources into the project. A famous example of this

concept is the development of the Concorde jet. Long before the

supersonic jet was completed, it became clear the increasing costs

would never be offset by the financial gains. Yet the manufacturers

and governments involved in the project continued, simply because

they had already devoted significant resources to the project.

Unfortunately, this Court’s Self-Incrimination Clause jurisprudence

has become another example of the sunk cost fallacy.

The English common law developed a robust system of criminal

procedures. The founding generation codified these common law

traditions in the Fourth, Fifth, Sixth, and Eighth Amendments to our

Constitution. Thus the maxim nemo tenetur seipsum accusare was

rewritten as “No person…shall be compelled in any criminal case to be

a witness against himself”. See e.g. 3 Joseph Story, Commentaries on

the Constitution §1782, at 660 (1833). Until the 20th century, this

clause provided a robust, categorical protection. Confessions were

10

excluded from criminal trials if any degree of influence had been

exerted. Bram v. United States, 168 U.S. 532, 543, 18 S.Ct. 183, 42

L.Ed. 568 (1897)(quoting 3 William O. Russell, Treatise on Crimes and

Misdemeanors 478 (1896 ed.)).

The Bill of Rights did not originally apply to the states, but this

changed with the adoption of the Fourteenth Amendment. Shortly

after its adoption, this Court was called upon to interpret the meaning

of the Privileges and Immunities Clause in the Slaughter-House Cases.

83 U.S. 36. 16 Wall. 36, 21 L.Ed. 394 (1873). Rather than interpreting

the clause with its plain meaning, Justice Miller embarked on a

dissertation regarding the differences between the rights of federal and

state citizenship, and effectively interpreted the Privileges and

Immunities Clause out of the Constitution. Id. at 78.

This Court has never disturbed this holding. See, McDonald v.

City of Chicago, 561 U.S. 742, 758, 130 S.Ct. 3020, 177 L.Ed. 2d 894

(2010). Rather, in piecemeal fashion, this Court has incorporated most

of the privileges and immunities from the Bill of Rights through the

Fourteenth Amendment’s Due Process Clause.

Initially, this Court concluded the privilege against selfincrimination was a just and useful principle of law, but not

fundamental to due process. Twinning v. New Jersey, 211 U.S. 78,

11

107, 29 S. Ct. 14, 53 L.Ed. 97 (1908). Thus the Twinning Court refused

to apply the privilege to the states.

Twenty-eight years later, the State of Mississippi would use

Twinning to defend confessions obtained by repeated lynchings and

whippings. Brown v. Mississippi. 297, U.S. 278, 56 S.Ct. 461, 80 L.Ed.

682 (1936). The Court reaffirmed Twinning, but held the use of

torture to secure a confession violated the Fourteenth Amendment’s

Due Process Clause. Id. at 285-287. For the next three decades this

Court was inundated with the abuses of state interrogators. This

gradually developed into a totality of the circumstances test used to

determine if a suspects will had been overcome. See, e.g. Chambers v.

Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940); Ward v.

Texas, 316 U.S. 547, 62 S.Ct. 1139, 86 L.Ed. 1663 (1942); Ashcraft v.

Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944); Ashcraft v.

Tennessee, 327 U.S. 274, 66 S.Ct. 544, 90 L.Ed. 667 (1946); Watts v.

Indiana, 338 U.S. 49, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949); Leyra v.

Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954); Reck v. Pate,

367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed. 948 (1961); Culombe v.

Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); Davis

v. North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966).

12

In 1964, this Court corrected its mistake in Twinning. Malloy v.

Hogan held the privilege against self-incrimination was applicable to

the states. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed. 2d 653

(1964). But this return to reasoned constitutional analysis was short

lived. In 1966, this Court sanctioned custodial interrogation, if the

interrogator informed the arrested suspect of their judicially crafted

rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966). The common law required an arrested suspect to be

promptly taken before a magistrate and made no provision for

interrogation prior to judicial examination. 4 William Blackstone,

Commentaries *293.

This Court has spent fifty-eight years attempting to make sense

of Miranda. See, Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28

L.Ed.2d 1 (1971); Lego v. Twomey, 404 S.S. 477, 92 S.Ct. 619, 30

L.Ed.2d 618 (1972); Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357,

41 L.Ed.2d 182 (1974); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254,

45 L.Ed.2d 416 (1975); Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321,

46 L.Ed. 2d 313 (1975); Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560,

61 L.Ed.2d 197 (1979); North Carolina v. Butler, 441 U.S. 369, 99 S.Ct.

1755, 60 L.Ed.2d 286 (1979); New York v. Quarles, 467 U.S. 649, 104

S.Ct. 2626, 81 L.Ed.2d 550 (1984); Minnesota v. Murphy, 465 U.S. 420,

104 S.Ct. 1136, 79 L.Ed. 2d 409 (1984); Arizona v. Roberson, 486 U.S.

13

675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988); Davis v. United States,

512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994); Dickerson v.

United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000);

Berghuis v. Thompkins, 560 U.S. 370, 130 S.Ct. 2250, 176 L.Ed.2d

1098 (2010); Maryland v. Shatzer, 559 U.S. 98, 130 S.Ct. 1213, 175

L.Ed.2d 1045 (2010); Salinas v. Texas, 570 U.S. 178, 133 S.Ct. 2174,

186 L.Ed.2d 376 (2013); Vega v. Tekoh, 142 S.Ct. 2095; 213 L.Ed. 479

(2022).

Miranda’s progeny require many questions to be answered. Was

the suspect in custody? Are the words and actions of the interrogators

reasonably likely to elicit a response? Did the suspect waive their

rights? Was the waiver express or implied? Was there a subsequent

invocation of any of Miranda’s rights? Was there any ambiguity in the

invocation? How long has it been since the suspect last invoked their

rights? Is there a reason to apply a public safety exception?

Conversely, the Self-Incrimination Clause asks one question:

Was there any influence exerted?

The time has come to stop wasting judicial resources on

Miranda’s failed policy project. Replacing this categorical

constitutional guarantee with vague, manipulable standards has done

enough damage to the constitution and country.

14

Statement of the Case

On Sunday, March 18, A.G.1 heard a crash outside her home,

saw a crashed van, and called 911. (R.77:32).2 Officer Heriberto

Benitez was en route to the area in response to a report of “shots fired”,

and secured the crash scene. (R.77:43-46). Officer Benitez noticed the

driver was slumped over into the passenger seat, and was

unresponsive when Officer Benitez attempted to wake him. (R.77:47).

The driver was later identified as T.B. (R.77:49). When rescue

personnel arrived, it was determined T.B. had been shot, and the scene

became a homicide investigation. (R.77:65).

Police interviewed a number of citizens in the neighborhood

surrounding the scene. K.C. thought she heard a gun shot, and ran out

to her front porch. (R.77:104-105). She did not see the incident, but

did see a black male walking away from the area. (R.77:106). L.B. saw

the entire incident but was unable to identify the two men involved in

the shooting of T.B. (R.77:119-123, 129). J.K. saw much of the

incident, but was not able to identify the men involved in the shooting.

The only description he gave was a person of average height with

dreadlocks, or wearing a hat, and wearing a puffy vest. (R.77:139).

1 Pursuant to the policy goals identified in Wis. Stat. 809.86(1) and Wis. Stat.

950.01, the victim and civilian witnesses are identified by initials only.

2 (R.x:y) references the document number and page of the record as it was

filed in the Wisconsin Court of Appeals and Supreme Court of Wisconsin.

15

An area homeowner had a video recording doorbell, and

provided footage of the shooting the doorbell captured to police.

(R.77:270-274). The video quality and capture was poor. Investigator

Jepson was only able to describe the shooter’s clothing. (R.77:272).

There was no DNA, fingerprint, toolmark, or any other form of

scientific, or physical evidence which tied Mr. Gray to the shooting.

Investigators identified Mr. Gray as a suspect, and received a

warrant so they could interview him. (R:78:12). They interrogated Mr.

Gray in a booking cell in Chicago. (R.78:16). They brought still

pictures from the video with them when the interviewed Mr. Gray, and

Mr. Gray admitted to being the individual in the video wearing the

puffy coat. (R.25:59-62). Approximately half way through the

interrogation, Mr. Gray told investigators “I’m just done with the

conversation”. (R.25:77). At the point Mr. Gray told investigators he

was done speaking with them, Mr. Gray was adamant he did not

possess a firearm, and his cousin M.L. was the individual who shot

T.B. (R.25:76).

Investigators continued to pressure Mr. Gray telling him:

Cedric, what you have to think about now is what is going to be

the best thing that can help you out in this situation…

Okay? And -- hear me out. Okay. Hear me out. The best thing

that I can tell you is you have to be upfront with everything.

Okay? Again, we -- we basically see and know what happened

out there.

16

This is your chance to say dude, it -- this is what happened.

This is not where this is. And this is where this is. This is

what I did with that. I’m sorry. I messed up. I fucked up.

And I’m sorry.

And I get it. I mean, he’s your cousin (R.25:77).

Eventually Mr. Gray confessed to shooting T.B. as he saw T.B.

reaching down to get what Mr. Gray believed was a gun.

(R.25:101-102).

A criminal complaint charging Mr. Gray with First Degree

Homicide and Possession of a Firearm by a Felon was issued on March

22, 2018. (R.1:1-2). Mr. Gray filed a motion to suppress his

statements to police as they were not made voluntarily. (R.16:1-2).

After the jury was selected, the circuit court conducted a perfunctory

evidentiary hearing to determine the admissibility of Mr. Gray’s

confession. (R.76:78). Counsel for Mr. Gray expanded upon his

original motion and focused the circuit court’s attention on Mr. Gray’s

attempts to cut off police questioning. (R.76:113). The circuit court

denied the motion to suppress, and the case continued to trial the next

morning. (R.76:116).

Mr. Gray was convicted on both counts. (R.78:162-163). On

count one, Mr. Gray was sentenced to life in prison without the

possibility of extended supervision, and was sentenced to 10 years in

prison for possession of a firearm. (R.79:131). Mr. Gray filed a timely

17

notice of intent to pursue post-conviction relief. (R.55). Subsequently

Mr. Gray filed a timely notice of appeal. (R.61).

Mr. Gray appealed, arguing the state violated his right against

self-incrimination. He reasoned his statement “I’m just done with this

conversation” was an unambiguous desire to end questioning, as there

was only one conversation he was having with officers. The court of

appeals affirmed, concluding a reasonable officer could construe the

statement as referring to a narrow subset of their conversation. (App.

A). The Supreme Court of Wisconsin denied review on October 30,

2023. (App. B)

18

Reasons for Granting the Petition

I.

Miranda and its progeny replaced a categorical constitutional

guarantee with malleable tests. The lower Courts are divided in

the application of these tests.

The Fifth Amendment protects against the use of compelled self-

incriminating testimony in criminal trials. U.S. Const. Amend. V.

Like many of the protections codified in the Constitution, this clause

comes from the English common law. The founding generation had

witnessed the British Crown ignore and abuse these protections, and

so they amended the Constitution so these protections against

government encroachment would be a part of the highest law in the

land. Bram, 168 U.S. at 543-545.

By 1897, this Court considered the development of the selfincrimination law to be well settled. Only voluntary confessions were

admissible. If the confession had been obtained by any threat,

violence, promise, or any other sort of improper influence, the

confession was inadmissible. Id. at 548. Politely telling a suspect it

would be better for them if they confessed was sufficient to render a

confession inadmissible. Id. at 559-561 (surveying American decisions)

In 1964, this Court corrected its error in Twining and held the

self-incrimination clause was applicable to the states. Less than two

19

years after incorporating this privilege against the states, this Court

embarked on a new course. Malloy v. Hogan 378 U.S. 1. Station-house

interrogation had become an entrenched and abused practice. Rather

than root out this practice which was at odds with the Fifth

Amendment, Miranda at 457-58, the Court created a judicial

compromise. Now custodial interrogations must be proceeded with a

set of warnings. Miranda, at 444-45. If the suspect indicated in “any

manner and at any state” they wish to consult with an attorney, or

indicated they did not wish to be interrogated, questioning must cease.

Subsequent members of this court have disagreed with this

bright line principle. To avoid difficulties of proof and to provide

guidance to interrogators, this Court now allows to continuing

questioning if a suspect’s reference to an attorney is ambiguous or

equivocal to a reasonable officer in light of all the circumstances. Davis

v. United States, 512 U.S. 452 (1994) This reasoning applies to general

questioning as well. Berghuis v. Thompkins, 560 U.S. 370 (2010).

The lower courts have largely been able to parrot this legal

standard. But the results of this test demonstrate how unworkable it

is. In Maine, telling officers you don’t want to answer the questions

they have posed is inadequate to invoke Miranda’s right to

silence. State v. McNaughton, 2017 ME 173, 168 A.3d 807 (ME 2017).

20

The Florida Court of Appeals held “I don’t want to talk about that”

invoked the right to remain silent. Dixon v. State, 72 So. 3d 171, 36

Fla. L. Weekly D 1815 (Fla. Dist. Ct. App. 2011). The Supreme Court

of Oregon has effectively admitted doctrinal defeat: “It’s not something

I want to talk about” could be ambiguous, but it could be unambiguous

as well. State v. Nichols, 361 Ore. 101, 390 P.3d 1001 (Or. 2017)

In a habeas proceeding, the 9th Circuit held “I don’t want to talk

no more” was an unambiguous invocation and granted relief. Jones v.

Harrington, 829 F. 3d 1128 (9th Cir. 2016) But in Ohio, “I’m ready to

quit talking now and I’m ready to go home too” was insufficiently clear.

State v. Murphy, 91 Ohio St. 3d 516,747 N.E.2d 765 (Ohio 2001) . "I’ve

got nothing to say” is a clear invocation in both Missouri, State v. Rice,

573 SW 3d 53 (Mo. 2019), and in Minnesota, State v. McInnis, 962

N.W. 2d 874 (Minn. 2021), but would be ambiguous in Rhode Island,

State v. Munir, 209 A.3d 545 (R.I. 2019), Arizona, State v. Cornman,

237 Ariz. 350, 351 P.3d 357 (Ariz. Ct. App. 2015), Montana, Nixon v.

State, 2013 MT 81, 369 Mont. 359, 298 P.3d 408 (Mont. 2013), and

Arkansas, Fritts v. State, 2013 Ark 505, 431 S.W.3d 227 (Ark. 2013).

Similarly, the statements “I don’t want to talk anymore”, “I’m

not going to talk about nothing”, and “I don’t want to say nothing” have

all been held ambiguous and insufficient to invoke Miranda’s

prophylaxis. State v. Payne, 233 Ariz 484, 314 P.3d 1239 (Ariz. 2013);

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U.S. v. Sherrod, 445 F. 3d 980 (7th Cir. 2006); Williams v. State, 445

MD 452, 128 A.3d 30 (Md. 2015).

Over and over, this Court has emphasized Miranda’s principle

strength is the ease and clarity of its application. But panels of erudite

judges with the benefit of written transcripts, dictionaries,

thesauruses, and case law cannot agree if “I’ve got nothing to say” is

ambiguous. If our best legal minds struggle to make this common

sense determination, how are suspects and interrogators supposed to

know which talismanic words must be uttered to invoke Miranda?

The Fifth Amendment provides a simple, bright line rule. If any

degree of influence has been exerted on the suspect, the confession

cannot be received into evidence. Bram at 543; Malloy at 7. Miranda’s

prophylaxis obscures this simple determination with endless difficult

questions providing little clarity to any party involved. This Court

should abandon Miranda’s failed experiment, and return to reasoned

analysis based on the text, history, and tradition of the Fifth

Amendment. Doing so will actually provide ease and clarity to the

nation’s courts and interrogators.

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II. The unpardonable vice of Miranda is not its unpredictability, but

its demonstrated capacity to admit confessions the SelfIncrimination Clause plainly meant to exclude.

It is regrettable our constitutional doctrines have become so

complex they lose sight of their foundational purposes. Miranda

sought to ameliorate the inherently compulsive nature of custodial

interrogation. The Court recognized this practice was “at odds with

one of our Nation’s most cherished principles -- that the individual may

not be compelled to incriminate himself.” History has shown an

interrogator intoning ritualistic words prior does little to dispel the

effects of environment designed to subjugate the suspect. Rather, this

invocation serves as a judicial blessing as interrogators attempt to

divine the answers they want from their subjects mind.

Carl Mathiason was interrogated by a police officer regarding a

burglary. The officer told Mathiason his truthfulness would possibly

be considered by the district attorney or judge, they believed he was

involved, and followed this up with a lie his fingerprints had been

found at the scene. Oregon v. Mathiason, 429 U.S. 492, 493, 97 S.Ct.

711, 50 L.Ed. 2d 714 (1977). The Court reversed the suppression of

Mathiason’s subsequent confession. But under the Fifth Amendment,

an interrogator saying “the suspicion is general against you, and you

had as well tell all about it, the prosecution will be no greater, I don’t

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expect to do anything with you; I am going to send you home to your

mother” is enough of an inducement to exclude a confession. Bram, at

560, quoting State v. Bostick, 4 Harr. 563 (Del. 1845).

Telling a suspect there were witnesses who would swear the

suspect committed the crime rendered a confession involuntary under

the Fifth Amendment. Bram at 552, quoting Rex v. Mills, 6 Car. &P.

146 (1833). But this Court refused to suppress Richard Mosley’s

confession after he was told there was Anthony Smith implicated

Mosley as the shooter. Michigan v. Mosley, 423 U.S. at 324.

Mr. Gray’s interrogation reveals how thoroughly courts have

failed to protect the privilege against self-incrimination. The

interrogators began with a page out of the prerogative courts of the

Stuart Monarchy; establish facts so you may entrap the suspect in

fatal contradictions. Bram at 544; (R.257-27)(App. C). Then the

interrogators began to dole out their evidence, “We have people out

there saying that you and [M.L] were in the area. Okay? The

witnesses are saying it’s the same time that this crash occurred”.

(R.25:28). “Cedric, you’ve seen the pictures…You know we’ve talked to

people…So that is you in the picture?” (R.25:58-59).

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Once Mr. Gray tried to invoke his right to silence under

Miranda, the interrogator’s switched to a full court press.

Cedric, what you have to think about now is what is going to be

the best thing that can help you out in this situation…The best

thing that I can tell you is is you have to be upfront with

everything…This is your chance to say dyed, it -- this is what

happened. (R.25:77).

Bram provided more than a dozen cases where confessions had been

ruled inadmissible because of interrogators telling the suspect the best

thing to do is confess. Bram at 559-561. But under Miranda’s

progeny, these tactics are permissible.

Illegitimate and unconstitutional practices get their first footing

by slight deviations from legal modes of procedure. Boyd v. United

States, 116 U.S. 616, 635, 6 S.Ct. 524, 29 L.Ed. 746 (1885). Miranda is

a significant departure from the procedures authorized by the Fifth

Amendment. Custodial interrogation has become an accepted element

of American policing, in spite of the constitutional protections enacted

to prevent an inquisitorial system. Uprooting this unconstitutional

practice is something only this Court can do. Until this Court

abandons Miranda and restores the Fifth amendment to prominence,

the American inquisition will continue.

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III. This case is an ideal vehicle for constitutional analysis.

This case is an ideal vehicle for certiorari. The judgement

against Mr. Gray is final, and the state appellate courts have each

declined to vindicate Mr. Gray’s constitutional rights. The

interrogation was recorded and transcribed; there are no material

questions of fact. The only question is whether Mr. Gray’s confession

was properly admitted.

Certiorari is the only remaining vehicle for relief. A habeas

petition in the federal courts will be foreclosed by Seventh Circuit

precedent. The Seventh Circuit is one of the worst offenders in reading

ambiguity into a suspect’s plain English. It has held “[a] suspects

telling a police officer that he’s ‘not going to talk about nothin’ is as

much a taunt -- even a provocation -- as it is an invocation of the right

to remain silent.” Sherrod, 445 F.3d at 982. In a habeas proceeding,

the Seventh Circuit recently held it was not objectively unreasonable

for the Wisconsin Supreme Court to conclude “I don’t want to talk

about this” was ambiguous. Smith v. Boughton, 43 F.4th 702, 710-711.

(7th Cir. 2022).

Ordinary people would understand “I don’t want to talk about

this” I’m “not going to talk about nothin” and “I’m just done with the

conversation” to be an invocation of Miranda’s right to silence. This

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Court should grant certiorari to prevent the lower courts extraordinary

interpretations of the English language from spreading.

Conclusion

The petition for certiorari should be granted.

Dated: Monday, January 29, 2024

Respectfully submitted,

Ste #n Roy

Counsel of Record

1310 O'Keeffe Ave. #315

Sun Prairie, WI 53590

608.571.4732

Steven@StevenRoyLaw.com

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