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Carol Howes, Warden v. Randall Lee Fields

Oral argument transcript · No. 10-680 · October Term 2011 · argued October 4, 2011 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

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From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument next in Case 10-680, Howes v. Fields. Mr. Bursch. ORAL ARGUMENT OF JOHN J. BURSCH ON BEHALF OF THE PETITIONER

John J. Bursch: Thank you, Mr. Chief Justice, and may it please the Court: This case raises two issues: The first is whether the right against self-incrimination requires that a prisoner always be Mirandized before being interviewed in isolation about conduct that occurred outside the prison. The second is an AEDPA question, whether this Court in Mathis clearly established such a per se rule. For three reasons, the answer to both questions is no. First, for nearly 50 years this Court has declined to adopt any new per se rule that always requires a Miranda warning, instead considering all the circumstances. Lower court --

Justice Sotomayor: Don't you think being in custody itself is a circumstance?

John J. Bursch: Sure, it's a circumstance that goes into the all-the-circumstances mix, but -- Alderson Reporting Company Official

Justice Sotomayor: What's all this "all-circumstances missed"? I thought that our case law was fairly clear that all circumstances is a test for voluntariness. I thought the issue has always been under Miranda: Is the person free to go or not?

John J. Bursch: That's correct. We agree that the test --

Justice Sotomayor: So, since when have we imported of the language of voluntariness into the Miranda test? And should we be creating yet another test?

John J. Bursch: Justice Sotomayor, there are two separate tests. And I go back just to last term in the J.D.B. case.

Justice Sotomayor: So, go to the test of freedom to leave.

John J. Bursch: Yes. If --

Justice Sotomayor: You're taken from your cell and locked into a room -- and let's change the facts --

John J. Bursch: Yes.

Justice Sotomayor: -- and locked in a room and said: Talk to me; tell me. You have to tell me what happened. Is that person free to go. Alderson Reporting Company Official

John J. Bursch: It would be much more difficult, but the test would be whether a reasonable person in the prisoner's position felt that they were free to go back to their cell in accord with reasonable, ordinary prison procedures. And that would be the test that's consistent with J.D.B. and, I submit, with every Miranda case that this Court has issued in the last 50 years.

Justice Sotomayor: All right. So, what makes this case different? He's taken from a -- except being told that he could leave. If he had been taken from his cell, removed from the prison, his normal setting, taken by armed guards to another building and, with guards at the door, sat down and told talk to us about this incident, why would he think he was free to leave? There is one fact I'm taking out of it.

John J. Bursch: Well, there --

Justice Sotomayor: Which is that he was told he was free to go.

John J. Bursch: Right. There are a number of circumstances that kind of culminate in what I consider to be the two most important. Some of the background circumstances: He was in a room that was not locked. It was a conference room, not an interrogation room with a bright light. He was not shackled. He was not Alderson Reporting Company Official threatened. He was not physically harmed in any way. The two big ones are, one, that when he started to become belligerent, the guards told him that if you don't want to cooperate, then you'll have to go back to your cell; you'll have to leave. And that's the exact opposite of Miranda custody, where --

Justice Sotomayor: There -- as I see the record, he claims twice he said, I don't want to talk to you. And when he asked to leave at the end, it took 20 minutes, and they continued the questioning. Doesn't that counter the rest of what you're saying?

John J. Bursch: They are two factors that go into the mix, and I'll discuss each one in turn. When he says, I don't want to talk anymore, then he went on and kept talking. And you have to consider, well, why did he keep talking? Well, the record shows, I think a fair reading of it anyway, that he was trying to explain to the officers this timeline that he kept talking about. At the end, when it was a 20-minute delay, there is no contention that that was anyhow inconsistent with reasonable prison procedures. And the fact that it could have been 20 minutes, it could have been 30 seconds, it could have been an hour, depending on procedures, demonstrates why a per se rule doesn't make Alderson Reporting Company Official sense. We should look at all the circumstances.

Justice Ginsburg: Why is a per se rule necessarily what is being argued here? For one thing, he had no choice but to go with the police, right?

John J. Bursch: That's correct.

Justice Ginsburg: So, it's different from some cases where the prisoner initiates the conversation.

John J. Bursch: That is a little bit different, but the key facts here are, one, at the beginning, the questioning officers say, you're free to stop this and go back to your cell. Then in the middle, he gets belligerent, and they say, if you don't want to cooperate, you have to leave; you have to go back to your cell. Which is, I submit, the opposite of Miranda custody. And then when he finally invokes his right to go back to his cell, it's immediately honored with, of course, the 20-minute delay due to prison procedures. And so, from beginning to end, a reasonable person in his position could have believed they were free to return. And that's all that Miranda requires. In fact, we have a trial court finding on that, on three of them: One, that he was told he was free to go; second, that he understood he was free to Alderson Reporting Company Official go; and, third, that he was free to go. And that's all I --

Justice Ginsburg: And it doesn't make any difference that they -- they took him from his cell, he was under compulsion to leave with them and interrogated during the hours when prisoners are ordinarily sleeping?

John J. Bursch: Again, I would submit those are all circumstances that should go into this all-the-circumstances consideration. You know, there were also other things that militated in favor of the trial court findings, such as the explicit instruction that he was free to leave; that he would have to go back if he didn't cooperate; that they did honor his request to leave, once made. So, these are all the things that the court should look at. And you can imagine a number of other situations, maybe with facts different than these, where a per se rule would be wholly inappropriate. You know, what if they had invited him to come down and he had the choice at the beginning? What if someone was stationed outside the door and took him immediately as soon as he said, I'm ready to go back? It just demonstrates that this isn't the place for a per se rule; that we should just follow the same Miranda test that has been applied for 50 years, and that's all the circumstances. Alderson Reporting Company Official

Justice Kagan: General, when you say that, I took sometimes your brief and the U.S. Government's brief to be saying something more, which is that it's not all the circumstances; it's all the circumstances minus circumstances that are attendant upon normal prison living. So, are you still arguing that, or are you really arguing an all-the-circumstances test?

John J. Bursch: We're not taking quite that strong a position. We're arguing all the circumstances. And the analogy that I would draw is just like in the J.D.B. case last term, that you would consider not only the age of the suspect, but also the school environment. So, I'm not saying the prison environment is taken out of the equation; just that it's not dispositive in and of itself, just like this Court held in Shatzer.

Justice Kagan: So, a court can still think -- when it's doing an all-the-circumstances inquiry, it can still factor in something like, you know, it just -- it was going to take him an hour to get back to his cell. That's still something that the court can consider along with everything else. Is that right?

John J. Bursch: Not only can, but should. Absolutely. And, you know, one of the benefits of having Alderson Reporting Company Official a per se -- I'm sorry -- of having an all-the-circumstances rule, rather than a per se rule, is that it encourages truthful, voluntary confessions. And this Court has repeatedly recognized that such confessions are an unmitigated social good. That's something that we want. And you can imagine, again, that there are a variety of non-prison contexts where it would certainly be easier to have a per se rule. You could have done that in J.D.B. You know, it's so coercive to take an 8-year-old child to the principal's office with an officer and question him, that per se there's always going to be some child version of the Miranda rule. But we don't do that. Or if you had someone in the hospital and they were in such a position that they were physically unable to leave. We don't have a hospital Miranda rule. There shouldn't be one in prisons, either. We should just take all the circumstances into account. And I think really the lesson of Shatzer is that we start, Justice Kagan, right where you did, that just simply being in prison, being interrogated -- I'm sorry -- being in jail alone is not enough. But it's going to become one factor that we consider in this larger test. Alderson Reporting Company Official

Chief Justice Roberts: Well, which way do you think that factor cuts?

John J. Bursch: In this particular situation?

Chief Justice Roberts: Yes.

John J. Bursch: I think it cuts in our favor, as the trial court found, and the courts should defer to that for all the reasons I just stated: That he was not threatened, not physically harmed; he was in a conference room; door wasn't locked. Of course, the big two: That when he got belligerent they told him, if you don't want to cooperate, you have to leave. The exact opposite of Miranda custody when you say, if you don't cooperate, you will not be permitted to leave. And also that when he made the request to go, it was honored within the amount of time that they would have expected per prison policy. So --

Justice Kennedy: Except when they say you have to leave, one way to interpret that or to analyze that might be to say: You're in custody no matter.

John J. Bursch: Justice Kennedy, I don't think that's the case because --

Justice Kennedy: And when you say you have to leave, that's almost coercion -- coercive of them to say, because he doesn't want to have to go back to the cell. Alderson Reporting Company Official

John J. Bursch: I don't think that's the case because, under Shatzer, there's nothing Miranda custodial about simply being in his cell.

Justice Kennedy: Right.

John J. Bursch: And if he wants to stay away from his cell, as it appears to here because he was trying to explain himself, you know, that's one of those factors that militates against a finding of --

Justice Kennedy: But I think it makes your case weaker, not stronger, that statement.

John J. Bursch: I think it makes it stronger, because in the typical Miranda case you would say to someone, if you don't cooperate, we are going to keep you here as long as it takes. And here they were saying just the opposite. And the message they sent was consistent with the instructions they gave him at the beginning -- if you tell us that you want to leave, we'll honor that request -- and consistent with what actually happened at the end. He said, I want to go back, and they honored that request. And I think one of the other factors that you put in the mix here is that we were dealing with outside officers, not inside prison officers. These outside officers did not have the ability to impact his day-to-day prison life the way someone inside the prison Alderson Reporting Company Official would. Now, one other point I want to make about in and out of prison is this artificial line that the Sixth Circuit drew to cabin its per se rule. They said that if the conduct takes place outside the prison, per se you get Miranda; if the conduct that they're questioning talking about was inside the prison walls, we're not going to do that. And the Sixth Circuit was forced to make that policy decision because, otherwise, prison administration becomes very difficult. But under this Court's precedent and under the Fifth Amendment itself, there is nothing that would suggest that there should be a distinction in the Miranda analysis as to the locus of the conduct that is being questioned about. And it's possible to have a very serious in-prison crime, a murder of another inmate, and a very nominal outside crime, petty theft, and, yet, the Sixth Circuit would give pure Miranda protection to that petty theft questioning and no protection at all to the person who murdered someone inside the prison walls. And that just demonstrates where the Sixth Circuit rule starts to fall apart.

Justice Sotomayor: The Chief asked you, in his question, which way does it cut? Meaning you seem Alderson Reporting Company Official to be advocating a rule that says merely because he's in prison is irrelevant, standing alone. I think your adversary is saying you can't take out the fact that this person's liberty is restrained from the equation. So, going back to my hypothetical, if you're forced to leave the prison, as this gentleman was, and put in another room, what presumption should you start with? Shouldn't the presumption be that if you're forced to go to another place, that you are in custody?

John J. Bursch: Well, Justice Sotomayor, I'm going to start with the premise. We are not advocating that the prison conditions fall out of the equation entirely. They are simply part of the mix that you consider, just like you would consider the school environment or the hospital environment or a customs environment. With respect to being taken out to another building, so long as a reasonable person in his position would have felt free to go back, that's ultimately the dispositive inquiry.

Justice Sotomayor: What -- what would make someone who is forced to go somewhere think that they're free to go back, absent being told?

John J. Bursch: Right.

Justice Sotomayor: But let's -- what would Alderson Reporting Company Official make any reasonable prisoner who can't move without an escort believe that they're always free to go back?

John J. Bursch: Well, there are --

Justice Sotomayor: Once they're forced to go from point A to point B.

John J. Bursch: Right. There are three factors here, and I'll quibble just a little bit with the assumption that he was somehow forced to go. It's true they didn't ask him if he wanted to go, but there's also no contention that he resisted going and they made him go anyway. What he said is: "I didn't know where we were going.... I felt like I was in a safe environment so I didn't object." And then once he got to the room -- here are the three that I think are the most critical facts: That he was told right at the beginning, just tell us; we'll take you back to your cell when you want to do that. Second, when he got belligerent they said, if you don't want to cooperate, you'll go back to your cell. And, third, when he asked to go back to his cell, that request was honored within the context of the typical prison administration. And it's very possible that in his everyday prison life, he could be taken over next door for a Alderson Reporting Company Official medical exam, he could be taken over next door for a visitor if that was county policy. So, there's nothing inherent about the walk into the next building that means per se he has to be Mirandized. Again, it's just one factor that should go into the mix, just like this Court has always done in Miranda cases. Unless the Court has any further questions, I'll reserve the balance of my time.

Chief Justice Roberts: Thank you, counsel.

John J. Bursch: Thank you.

Chief Justice Roberts: Ms. Anders. ORAL ARGUMENT OF GINGER D. ANDERS ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER

Ginger D. Anders: Thank you, Mr. Chief Justice, and may it please the Court: The Sixth Circuit has imposed a per se rule that whenever a prison inmate is isolated for questioning about conduct that occurred outside the prison, that inmate is in custody for Miranda purposes, regardless of the circumstances of the interrogation. But in the prison context, as in any other, the traditional Miranda custody tests should apply, and the question should be whether, in light of all of the circumstances, a reasonable person in the suspect's Alderson Reporting Company Official position would have felt free to terminate the interview and leave. That is so for three reasons: The first is that the Court reaffirmed, in Maryland v. Shatzer, that restraints on a suspect's freedom of movement are a necessary but not sufficient condition for Miranda custody. In other words, a reasonable suspect whose freedom of movement is restrained may nonetheless feel that he is free to terminate the questioning. Second, there are, in fact, many situations in which a reasonable inmate isolated for questioning would feel free to terminate the interrogation despite being subject to background prison restrictions. And, third, the Sixth Circuit's per se rule here requires Miranda warnings to be given in situations in which the concerns about custodial interrogation that drove Miranda are simply not present. That holding impairs the important truth-seeking function of investigations by requiring the suppression of voluntary confessions made in noncustodial situations.

Justice Breyer: Suppose the policeman had said: I'm taking you away with me for 20 minutes, period. Takes him away, puts him in a place, asks him questions for 20 minutes. All right? Does he have to Mirandize him? Alderson Reporting Company Official

Ginger D. Anders: You have to look to the totality of the circumstances in that --

Justice Breyer: No, those are the totality.

Ginger D. Anders: -- in that case.

Justice Breyer: I just gave you the totality.

Ginger D. Anders: In that situation, the inmate may not be in custody, because Shatzer established that simply being in prison and subject to normal prison --

Justice Breyer: No, no, no. I'm taking you to a special room, and in this special room, I'm going to ask you questions for 20 minutes.

Ginger D. Anders: You would look to --

Justice Breyer: There's no other circumstance. That's it. Everything else is the same as here, except he added those words. Now what?

Ginger D. Anders: I think he may not be in custody, because --

Justice Breyer: Not in custody.

Ginger D. Anders: -- again, you have to --

Justice Breyer: He's only going to be there for 20 minutes.

Ginger D. Anders: You look to what the reasonable inmate in that situation would feel --

Justice Breyer: He would have thought he Alderson Reporting Company Official could leave after 20 minutes.

Ginger D. Anders: You would look to what the reasonable inmate would feel, and in that situation, you would look to his experience with the prison, you would look to the circumstances of the questioning, whether they are accusatorial, whether they are pleasant --

Justice Breyer: Okay.

Ginger D. Anders: -- the location of the room.

Justice Breyer: Now, outside -- we walk outside, there's a policeman in the street, and he says to someone who's a suspect: Come with me; I'm taking you to jail; I'm going to ask you questions for 20 minutes. He takes him to a barred room; he can't get out for 20 minutes. He has to Mirandize him?

Ginger D. Anders: You may have to in that situation, Justice --

Justice Breyer: What's the difference?

Ginger D. Anders: The difference is that the person who is on the street -- their baseline is that they are -- they have complete free will, they have freedom of movement. But when you look at the prison situation, the ultimate question is whether the reasonable inmate would feel free to terminate the questioning, and one situation you look to in determining that are the physical restraints on that Alderson Reporting Company Official person. And when you look at the restraints, you have to take into account the fact that the prisoner has a baseline, which is that he has some restrictions on his movement. That's what the Court said in Shatzer. And so, when you look at the totality of the circumstances, you consider the restraints and the prisoner's baseline, but you also consider everything else that happens during the questioning. And so, there could be many situations in which the questioning will go in a manner that tells the reasonable inmate that he's free to leave. So, for instance, the most clear example is when someone is actually told that they can leave. But there could be many other examples as well.

Justice Kagan: Could I ask you a different sort of question, Ms. Anders? Putting aside what the Sixth Circuit did here, if you look back at the initial State court opinion, do you read the State court -- do you think the State court is fairly read, could the Sixth Circuit have fairly read it, as establishing its own per se rule, which was the per se rule we rejected in Mathis? In other words, that the State supreme court required some kind of nexus between the prison custody and the interrogation?

Ginger D. Anders: I think it's -- I think it's -- the State court opinions are somewhat unclear. There Alderson Reporting Company Official are some statements that could be taken to be inconsistent with Mathis, but immediately after those statements, the State court said, well, it's not enough alone for custody that someone is incarcerated on a conviction that's unrelated to their questioning, and we look to the fact that the inmate was told that he was free to leave, and he actually felt free to leave. So, I think the best reading of the State courts' opinions is that they did go through the totality of the circumstances, and they did conclude that Respondent reasonably felt that he was free to leave in this interview. But, more importantly, I think the Sixth Circuit went much further than that and imposed a per se rule that says no matter what the questioners do, no matter what a prisoner is told, no matter how free he feels to leave, that person always has to be Mirandized. And that extends Miranda way beyond its initial concerns. Voluntary confessions, this Court has recognized, are an unmitigated good. So, any time someone confesses voluntarily in a noncustodial situation, the Sixth Circuit's rule, applied to prisons, would say that that person 's confession has to be suppressed, even though it was given in a situation that Alderson Reporting Company Official doesn't implicate Miranda's concerns at all. And I think the Sixth Circuit's rule really arose from two assumptions. One was that isolation alone is sufficient to create custody in all circumstances. And that can't be the case, because we know that an inmate can be told that he can leave, he can be given an initial choice before he comes along for questioning, he can be interrogated in isolation purely because he's waiting to be treated in an infirmary. There are any number of situations, I think, where an inmate could be isolated for questioning, but he would still feel free to leave. And going to Justice Sotomayor's question about whether someone in prison necessarily feels coerced, I think that the Court in Shatzer established that background restrictions incident to being incarcerated are not in themselves sufficient to create Miranda custody. So, in other words, they don't create such a huge coercive impact that nobody would feel free to terminate questioning. So, I think accepting the proposition that someone in prison is always coerced would lead to a per se rule that says no matter how non-accusatorial, no matter how noncoercive that situation is, that person would always be in custody. Alderson Reporting Company Official So --

Justice Sotomayor: Well, you're going back to confusing coercion issues with custody issues, and I don't know that you have really answered Justice Breyer's question. Someone's picked off the street and told you have to go into this room, and questions are asked. Wouldn't we assume that that person is in custody?

Ginger D. Anders: I think in either situation, you have to look to the totality of the circumstances. And so, we know that restraints alone -- the restraints of prison aren't enough alone. And so, when you consider the restraints -- when you consider the fact that a prisoner is told he has to go into a room, you would look not only to that fact, but you'd also look to everything that happens in the questioning. But then when you go back to consider the fact that the prisoner was told that he has to come to the room, you would -- you would look to whether it's a normal prison policy that prisoners always have to be escorted places. And so, that would help the court determine whether --

Justice Sotomayor: Well, but he didn't choose to go to that room. He was placed in that room. What makes him think that if -- if his jailers are Alderson Reporting Company Official walking him somewhere, that he's free to leave?

Ginger D. Anders: Well, I think two points: One is that -- the fact that he is asked to -- the fact that he is told he has to go to this room is not the only circumstance of the interrogation. So, certainly, what happens in the questioning can lead a reasonable prisoner to believe that he's free to go, even though he's been told he has to go to the questioning. So, if he is told he can leave, if it becomes clear from experience, if there's a prison policy saying that inmates can always leave, if he sees that he can summon the guards -- all of those circumstances have to be taken into account in addition to the fact that he was told initially that he has to go with the guard. And the second thing --

Justice Ginsburg: If he were out and the police officer said, come along with us, he could say no. But here he didn't -- he didn't have that choice.

Ginger D. Anders: That's right. He didn't have that initial choice. But once he got into the questioning, I think this case is a good example of what can happen where the inmate here was told that he could end the questioning. And so, the ultimate question for Miranda custody is whether the reasonable person would feel free to terminate the interrogation. Alderson Reporting Company Official And so, in considering all of the circumstances, one circumstance would be that the inmate was told he has to come to the questioning, but another circumstance would be that he was then told once he got there that he could end the questioning. And so, there are -- there are other factors like that that --

Justice Ginsburg: Is it -- is the time relevant, that this was done -- they took him away at 7:00 in the evening and kept him for 7 hours?

Ginger D. Anders: I think that would be a relevant factor here, too, as would the fact that the door was partially open, that the -- the questioning was not threatening, there were only two officers.

Justice Ginsburg: Well, they -- that didn't do him any good, because he couldn't get back to his cell without being escorted there.

Ginger D. Anders: That's correct. That -- that is a -- that's a background restraint of incarceration, and in looking at whether that particular restraint made the inmate feel that he couldn't terminate the questioning, you would look both to the fact that -- that, as he himself said, it's common sense that inmates have to be escorted to and from places in the prison. And also -- Alderson Reporting Company Official

Chief Justice Roberts: Counsel, I wonder why you just agreed that the 7 hours would be a pertinent circumstance. It strikes me that that would be a pertinent circumstance on overall voluntariness, perhaps, but once you're told you can leave whenever you want, I don't see why it matters at all how long he's kept there.

Ginger D. Anders: I think that's exactly right, that -- that, certainly --

Chief Justice Roberts: So, it's not a relevant circumstance on the custody question.

Ginger D. Anders: It is a circumstance within the totality of the circumstances here, but it -- it's -- any kind of effect that it had on making the inmate feel that he couldn't terminate the question was entirely offset by the fact that he was told that he could leave multiple times.

Chief Justice Roberts: Thank you, counsel. Now Ms. Jacobs. ORAL ARGUMENT OF ELIZABETH L. JACOBS ON BEHALF OF THE RESPONDENT

Elizabeth L. Jacobs: Mr. Chief Justice, and may it please the Court: I want to address the issue of whether someone is free to leave. Recently, there have been Alderson Reporting Company Official several cases, and Cervantes is one, and I can't remember whether it was Alvardo -- Alvarado or J.D.B., where the courts have said that in a prison setting the statement that you're free to leave has less significance than if you're in a -- in the free world. So, I would suggest that when you look at this, that that particular issue, or that particular statement, should not be given the same weight in prison as out. And one of the reasons I suggest is because if a prisoner is told he's free to leave and he's in custody and we know he's in custody because he's in prison, he really under these facts does not have the capability of getting up and leaving.

Justice Scalia: Well, it certainly -- it certainly doesn't mean he can leave the prison, right?

Elizabeth L. Jacobs: Right.

Justice Scalia: That's clear, but -- but isn't that the only difference? It, certainly, at a minimum, means that he can leave this interrogation.

Elizabeth L. Jacobs: Prisoners --

Justice Scalia: But what could it possibly mean if it didn't mean you could leave this room where you're now being questioned?

Elizabeth L. Jacobs: Let me answer that question by pointing out that in -- I think it's Georgison and Alderson Reporting Company Official Cervantes, where there is a button, and the prisoner has the ability to go and press the button and call his own jailers. In this case, the prisoner had to rely on the sheriff's deputies that were interrogating in order to effectuate his freedom. And, in fact, he's testified that he said he wanted to -- that -- I think he said that he didn't want to answer any questions, or he wanted to leave, and we don't hear any more about it -- about that. Why not? Because at that point, no one allowed him to leave because the officers hadn't gotten the answers they wanted.

Justice Alito: What is the rule that you want us to adopt?

Elizabeth L. Jacobs: The rule I want you to adopt is the rule in Mathis. And it seems that it has already been adopted, but I think that based on what the --

Justice Alito: So, everybody in prison is in custody --

Elizabeth L. Jacobs: Right.

Justice Alito: -- at all times.

Elizabeth L. Jacobs: What -- what Mathis --

Justice Alito: So, if you want to question anybody in prison about anything --

Elizabeth L. Jacobs: No. Alderson Reporting Company Official

Justice Alito: -- you have to give a Miranda warning.

Elizabeth L. Jacobs: And I don't think that's what Mathis said. I think Mathis was very specific, that a police officer coming from the outside to the inside to talk about a crime occurring on the outside must be -- give a Miranda warning.

Justice Alito: What sense does that make? Why is one more in custody depending on the subject that the police want to question the person about?

Elizabeth L. Jacobs: And in certain circumstances, I agree with you, that in fact, this Court should hold that when the correction officers are investigating a crime within the prison, then -- and they remove the prisoner and they isolate him, take him out of the general population, that this Court should then hold Miranda is applicable. But when it's voluntary --

Justice Alito: So, whenever they -- whenever a prisoner is isolated and questioned about a crime, no matter where it occurs, a Miranda warning has to be given?

Elizabeth L. Jacobs: Yes.

Justice Alito: About a possible crime?

Elizabeth L. Jacobs: Yes. I mean -- there doesn't seem to me to be possible crimes. They always turn out Alderson Reporting Company Official to be crimes.

Justice Kagan: Well, how is that consistent with the totality of the circumstances test that we've always insisted upon in Miranda cases?

Elizabeth L. Jacobs: Well, Miranda -- not all the -- there are bright-line rules attached to Miranda, so that Miranda itself is a bright-line rule. So, to state a bright-line rule I don't think is outside the purview of Miranda -- of Miranda law. And it's easier for the officers to apply; it's easier for the courts to apply; and there would be more consistency. But, Justice Alito, I want to make sure that you understand that I think if it's on-the-scene questioning about a crime occurring on prison, that I don't think you have to give Miranda rights; that if it's voluntary, if the officer -- if the defendant comes up to an officer and starts chatting away and starts mentioning a crime, that's voluntary. And that's consistent with Miranda. I don't think you really have to break new ground --

Justice Alito: So, if a prisoner is stabbed in the yard and there are 50 prisoners in the yard at the time and the prison guards want to question everybody to see what they saw, they all have to be given Miranda warnings? Alderson Reporting Company Official

Elizabeth L. Jacobs: Well, that's an interesting fact situation, because some of those people are just witnesses, and they are not necessarily suspects. And a guard might be able to say: Well, the people that were in this narrow area, they're possible suspects. They're going to get --

Justice Kennedy: No, no. No, no, that's not the way Miranda works. Miranda suppresses a statement that is adverse to the person who was questioned. And the police doesn't know when the adverse statement's going to come. So, you're running away from the hypothetical. It just doesn't work.

Elizabeth L. Jacobs: I -- I'm sorry, but I had thought that what Miranda also said is if -- if it's a witness and you know -- you believe that it's a witness and that you're not asking questions that are going to incriminate them, that then you don't have to give Miranda. Once the point it becomes -- thank you.

Justice Alito: Well --

Elizabeth L. Jacobs: Once the point it becomes incriminating, then you give the Miranda rights.

Justice Alito: If it's a witness in the outside world, the witness is unlikely to be in custody.

Elizabeth L. Jacobs: I understand, but I thought your hypothetical had to do with being stabbed in the Alderson Reporting Company Official yard.

Justice Alito: It does.

Elizabeth L. Jacobs: Okay.

Justice Alito: So, these -- all these people in your view are in custody, and they all are being asked questions that may incriminate them --

Elizabeth L. Jacobs: If they --

Justice Alito: -- and they don't have to be given Miranda warnings unless they're suspects.

Elizabeth L. Jacobs: If they are removed from the general population, if they're taken by a corrections officer to a cell where they're going to be interrogated -- they are isolated; it's incommunicado; they're being interrogated by officers; they know they're officers -- that's a Miranda situation.

Justice Alito: And when will that not occur? In my hypothetical of the stabbing in the yard, you mean that you think the guards are going to say: Okay, all you guys stay here; now we're all -- we're going to question each of you individually with everybody else, the 49 other prisoners present.

Elizabeth L. Jacobs: I think it -- I think at that point, they're going to put the people that were in the yard back in their cells, and then they're going to take them out. Alderson Reporting Company Official

Justice Alito: And then they'll be isolated.

Elizabeth L. Jacobs: Yes.

Justice Alito: So, they all will get Miranda warnings.

Elizabeth L. Jacobs: So, they will get Miranda. You're -- you know. And I understand the Court's concern that you might lose -- you might lose evidence, but Miranda is going to protect us from false confessions, which is even a greater cost to society than -- than having to give the Miranda rights.

Justice Kagan: And where do you get this focus on isolation from? I mean, it's never mentioned in Mathis. You said let's go back to Mathis, but that's not a part of Mathis, is it?

Elizabeth L. Jacobs: It's -- well, I've got two answers for that: One, it's -- it's the basis of Miranda, that when you isolate someone, when you talk to them incommunicado, that that's -- there are compelling pressures that only Miranda rights will dispel, such as -- and let me get -- answer one other question. Telling someone that they've got the freedom to leave is not a substitute for Miranda. But now let me go back to Mathis. In Mathis, the Court said he was in a cell. So, I draw Alderson Reporting Company Official that -- the inference that he was isolated, that he's in a cell, he's got agents with him, and that that's isolation. He's not in a prison library --

Justice Ginsburg: I thought that there was no discussion of the "in custody" point in Mathis. It was assumed that they were in custody, and the issue was whether he could be questioned about a crime other than the one for which he was being held.

Elizabeth L. Jacobs: I read Mathis as to say that he was in custody for the -- for the question of the crime. The police officers came in; they have him in a cell; it's a police-dominated atmosphere and that they're questioning about a crime that occurred outside the prison. To me, that's Miranda.

Chief Justice Roberts: Well, Justice Ginsburg is quite right. That -- that was not the issue in Mathis. The argument in Mathis was: We're questioning him about something else; so, we don't have to give him Miranda warnings. And that's the question that the Court decided. I don't think it had any discussion about whether -- there was certainly not the argument of whether he was in custody or not. The argument was this is a different crime; so, we don't have to give you Miranda. And the Court rejected that. So how does Alderson Reporting Company Official that clearly establish the law on which the court relied in this case?

Elizabeth L. Jacobs: In Mathis, because he was -- I guess it was the lower court thought that because he was not in custody on the crime with which they were going to ask questions --

Chief Justice Roberts: Right.

Elizabeth L. Jacobs: -- that, therefore, you didn't have to give him Miranda.

Chief Justice Roberts: Right.

Elizabeth L. Jacobs: But I think what the Supreme Court was implying is that it doesn't matter what -- what you're in -- in prison for; you are in custody at that point that you're in the cell with these officers.

Chief Justice Roberts: Do you know where exactly in Mathis? It's only --

Elizabeth L. Jacobs: I'm saying --

Chief Justice Roberts: -- about five pages long. Can you show me where they have that discussion about custody, as opposed to a discussion about what crime is being discussed?

Elizabeth L. Jacobs: What I'm saying is that it's implied by Mathis.

Chief Justice Roberts: Exactly.

Elizabeth L. Jacobs: You can infer it from Mathis. Alderson Reporting Company Official

Chief Justice Roberts: Exactly. It's implied. Inferred. How --

Elizabeth L. Jacobs: But that --

Chief Justice Roberts: Is that clearly established law?

Elizabeth L. Jacobs: Yes. I think it is clearly established law. It does not break any new ground for us to apply it. It does not break any new ground. I think Mathis is a very limited case. The holding applies to police officers only, not to corrections officers, and I think that it does stand for the principle that if you're in custody, and they're talking to you about --

Justice Kagan: Well, do you agree --

Chief Justice Roberts: Do you agree that this is not -- what you want to derive from Mathis is not part of the holding of Mathis?

Elizabeth L. Jacobs: I think it's a rational -- well, I think it's a rational extension.

Chief Justice Roberts: It's an extension.

Elizabeth L. Jacobs: But that doesn't necessarily mean that it's new law. It's --

Justice Ginsburg: I thought you were going back to Miranda itself, which says in custody or otherwise deprived of his freedom of action in any Alderson Reporting Company Official significant way.

Elizabeth L. Jacobs: Yes.

Justice Ginsburg: So -- and I think you repeated the phrase from -- from Miranda that what the Court was aiming at was incommunicado interrogation of an individual in a police-dominated atmosphere. The question is whether the Court has modified what Miranda said in -- in that regard.

Elizabeth L. Jacobs: Which court? This Court or the Sixth Circuit?

Justice Ginsburg: This Court, this Court, because this Court now seems to assume that it must be in custody and not -- not otherwise deprived of action, that being in custody is essential.

Elizabeth L. Jacobs: I -- I read that as still being the law, that there are the two clauses; one is you're under arrest, and the other is your freedom of movement is restricted such that a reasonable person would think that you were not -- that you were not free to leave. I'm sorry, Justice Ginsburg; have I answered your question?

Justice Ginsburg: Yes, I think you did.

Chief Justice Roberts: I'm not sure you answered mine from before.

Elizabeth L. Jacobs: I'm sorry. Alderson Reporting Company Official

Chief Justice Roberts: How do you think that your argument or the decision of the court below was implicit in or an extension of Mathis? Mathis says you don't -- you're not free of Miranda just because it's a different crime. How does that answer the issue before the Sixth Circuit in this case?

Elizabeth L. Jacobs: I think that when -- when the Sixth Circuit is analyzing the State court decision, they're looking at the State court decision, and that decision says if there's no nexus between what you're being questioned about and what you're in custody for, then you don't have to give Miranda. So, I think the Sixth Circuit found that to be contrary to the language in Mathis.

Chief Justice Roberts: Well, I thought what we've been arguing about is not the nexus issue, but instead whether, in light of the circumstances or under an absolute rule, there's custody.

Elizabeth L. Jacobs: I think we're arguing about two things. I think the Court is going to have to decide two things, and one is whether the Sixth Circuit's decision about whether the State court's decision was contrary to clearly established law. I think that's one decision. And the other decision is whether there's going to be this per se rule about whether if you're -- Alderson Reporting Company Official whether you're in custody or not and under what circumstances there might be a per se rule.

Chief Justice Roberts: And what is the clearly established law set forth in our cases that answers that latter question?

Elizabeth L. Jacobs: Whether -- if there's a per se rule? There is not a clearly established law. There could be -- under a rational extension issue, but it's a little more attenuated. But I don't think that I -- that there -- that the Respondent would lose on that issue. He would still win because the Sixth Circuit's decision is not wrong; the State court's decision was contrary to the clearly established law of Mathis.

Justice Alito: Can I ask you this? Suppose you have this situation: The police officers go to a prison. The -- a prisoner is brought to an interview room, and the police officers are there with the prisoner in the interview room. And they say to him: We're investigating allegations that you committed child abuse. Now, you're free to leave if you want to, and we'll see that you go back to your cell right away. He says, no, no, I want to explain this; I welcome this opportunity to speak to you. Do they have to give him Miranda warnings.

Elizabeth L. Jacobs: I think they do because I think Alderson Reporting Company Official that telling him that he is free to go is not a substitute for Miranda. It does not protect the Fifth Amendment right, and I think we look to Dickerson, which said that, even though section 3501 said that you had to inform defendants of certain rights, it didn't cover all of the Miranda rights. And they said you had to cover -- it doesn't necessarily have to be in the same language, but you have to cover those rights. I think what the Petitioner wants you to adopt is a -- is a rule that says telling someone they're free to go is a substitute for Miranda. And it isn't. It does not protect the Fifth Amendment right.

Justice Ginsburg: Well, their question -- the question is, is the person entitled to Miranda warnings? And the argument has been that they're not entitled to Miranda warnings unless you're in custody. They say: You want to have a per se rule for in custody; that is, if you're taken out of your cell and put in another place under police guard and questioned.

Elizabeth L. Jacobs: That's correct. They've taken him from his normal routine. They've exercised control over him. They've moved him to another location where -- I'm assuming from Justice Alito's hypothetical that he's isolated from the general prison population. And they're starting to tell him they're going to question Alderson Reporting Company Official him about child sexual abuse charges. I don't see how you can't --

Justice Alito: Well, they said: We'd like to talk to you about it, but you don't have to talk to us; you're free to go. And he says immediately: No, no, there's a misunderstanding here; I want to explain this; I am glad you came and asked me about this; I don't want to go back to my cell. And you say that's coercive.

Elizabeth L. Jacobs: I'm -- I think you're now describing him as being much nicer than I had assumed he was the first time around. If the officer is not being confrontational, I think maybe that's one thing that has to be considered. I would think that you have to give him Miranda rights. Let me just go over a few issues that I wanted to make sure got mentioned. The Sixth Circuit decision -- I got kind of, I think, carried away in my brief. The Sixth Circuit decision very clearly rests on the contrary clause. On page 10a of the Petitioner's appendix, they state what their -- they state what their decision is going to be, that is, this is contrary to clearly established Supreme Court law. Then they do four more pages to page 14a in which they talk about why the State court decision was contrary. And it's only Alderson Reporting Company Official after they say that -- they give their reasoning; they state their rule -- that they say: But if there's any doubt, then let's look at Shatzer, which was not clearly established law at the time of this case.

Chief Justice Roberts: Can I -- since we're talking about the Sixth Circuit decision, what it says is -- this is on page 10a. "The central holding of Mathis is that a Miranda warning is required whenever an incarcerated individual is isolated from the general prison population and interrogated, i.e., questioned in a manner likely to lead self-incrimination about conduct occurring outside of the prison." Is that correct --

Elizabeth L. Jacobs: Yes.

Chief Justice Roberts: -- description of Mathis?

Elizabeth L. Jacobs: Yes.

Chief Justice Roberts: I thought Mathis rejected the argument that it depends on whether the crime is the one that you're in prison for or something else.

Elizabeth L. Jacobs: I'm sorry. I thought that that was what you said at the end. I apologize. I think that this Sixth Circuit decision makes it very clear that they are talking about crimes occurring outside the prison, that they've drawn that kind of dichotomy. Alderson Reporting Company Official So --

Chief Justice Roberts: Well -- the first part, "a Miranda warning is required whenever an incarcerated individual is isolated from the general prison population" -- okay -- "and interrogated"; i.e., questioned in a manner or whatever. Now, does that address all of the issues? Is that -- where in Mathis is the discussion about whenever an incarcerated individual is isolated from the general prison population?

Elizabeth L. Jacobs: I thought that it was between 10a, page 10a and page 14a.

Chief Justice Roberts: No, no. Where in Mathis?

Elizabeth L. Jacobs: This was the question that we talked about before --

Chief Justice Roberts: Right.

Elizabeth L. Jacobs: -- and what I'm saying is that I believe that it's -- that they're implying that and that we're inferring that and that it might not be a clearly stated principle, that it's from outside the prison, but that it certainly foreshadows -- that it's -- that that rule is foreshadowed. So, it's not a new rule, but --

Chief Justice Roberts: If the argument were Alderson Reporting Company Official Miranda was not required because this -- this concerns a different crime than what you're in prison for here. I understand the idea that -- under AEDPA, that Mathis is clearly established law. The issue here, however, as the Sixth Circuit put it, is a warning is required whenever an incarcerated individual is isolated from the general prison population. And I just don't see that anywhere in Mathis.

Elizabeth L. Jacobs: I again say that this is what one infers from Mathis.

Chief Justice Roberts: Okay.

Elizabeth L. Jacobs: That's the general principle.

Justice Kennedy: And what you infer is the rule that incarceration constitutes custody.

Elizabeth L. Jacobs: No. Custody is when the prisoner is isolated, incommunicado, outside the general prison population, and he's being asked questions by a law enforcement officer designed to -- that are designed to incriminate him. I think it's the traditional --

Justice Kennedy: But that is --

Elizabeth L. Jacobs: I think it's the traditional Miranda --

Justice Kennedy: But that is Shatzer, and Shatzer was careful to say we've never decided that issue. Alderson Reporting Company Official

Elizabeth L. Jacobs: I think what Shatzer was saying -- and I know it's hard for me to tell you what Shatzer was saying since you decided Shatzer. But I think that Shatzer seems to be aimed at correction officials, that whether correction officials -- I think Shatzer is saying we never decided the whole issue. And I think that Mathis decided --

Justice Kennedy: Well, it states in broader terms. It says we've never decided whether incarceration constitutes custody for Miranda purposes and, indeed, have explicitly declined to address the issue.

Elizabeth L. Jacobs: But I think --

Justice Kennedy: It talks about Bradley, which was definitely where the issue was.

Elizabeth L. Jacobs: I think that Shatzer was referring to the whole umbrella of -- of people that would come into the prison, including people that would be in the prison and want to talk to -- to prisoners. So, I think Shatzer was talking about not just police officers but correction officials. I think Mathis clears up -- police officers, you come in, you're going to talk about something else, you're going to interrogate -- Miranda. Shatzer finishes this line of cases by Alderson Reporting Company Official saying it applies to -- it will apply to correction officials as long as you take the gentleman out of the general prison population and isolate him.

Justice Kagan: Ms. Jacobs, wouldn't it be fair to say -- it seems to be me that Shatzer -- excuse me. Mathis must have found that Mr. Mathis -- the Court in Mathis must have found that Mr. Mathis was in custody. That would be a fair inference for Mathis.

Elizabeth L. Jacobs: Yes.

Justice Kagan: But we have no idea why the Court thought that Mr. Mathis was in custody. That wasn't at issue in the case. The Court doesn't talk about any of the surrounding factual circumstances. There might have been a thousand things we don't know about that led everybody to assume that was -- led everybody to assume that Mr. Mathis was in custody, not the particular things that the Sixth Circuit mentioned.

Elizabeth L. Jacobs: I think that Mathis does mention factors that went into the decision about whether he was in custody. They talk about him being in a cell, not in the prison law library, you know, not in the conference room, not in a visitor's room -- being in a cell with the officers and he's being interrogated. I think that they very clearly are saying that this -- I think it establishes this principle that Alderson Reporting Company Official Mathis -- that my case, that Howes v. Fields applies.

Chief Justice Roberts: Isn't the best you can say, not that Mathis found but perhaps that Mathis apparently assumed that he was in custody, because there is no discussion of it? There's no discussion of the custody.

Elizabeth L. Jacobs: I agree.

Chief Justice Roberts: Yes, they give you a factual recital. He was in his cell and all that.

Elizabeth L. Jacobs: I just don't think -- I don't doubt that they thought that Mathis was in custody, which is why they were talking about Miranda to begin with. He's in a cell.

Justice Kagan: But we don't know why they thought Mathis was in custody. It just wasn't an issue in the case. Everybody had assumed it.

Elizabeth L. Jacobs: And it's not dicta. As far as I can tell, it becomes part of the clearly established law. It was a court --

Chief Justice Roberts: What's dicta? Dicta is something that's said that's not necessary to the holding.

Elizabeth L. Jacobs: Right.

Chief Justice Roberts: We don't have anything that's said about it here. Alderson Reporting Company Official

Elizabeth L. Jacobs: But I -- my argument, Justice Roberts, is that saying that he's in a cell and that he's being questioned by officers, that that is -- and he's being questioned about a crime, that that is custody and that, from that, there is a principle. I would just like to close by saying again that I would ask you to reject the -- the Petitioner's proposition that saying someone is free to leave is a substitute for Miranda warnings, that my client was very clearly in custody, that in fact -- and I think this is an interesting part of this case -- in a sense, custody had been transferred, that he really was no longer in the custody of the jail but that he had been -- once he went through the J door, was turned over to the sheriff's deputies, and the other guards left, that custody had then been transferred. So, I think he's clearly in custody, and I think that's one of the things that this Court must look for or include in a per se rule, whether -- who is holding this man in custody? Further, the fact that he was told that he could leave is not significant on the facts of this case. The fact that the officers -- and I think Justice Kennedy made this point -- that the officers were yelling at him. They're the ones that have control over him. He does not have the control. The fact that he Alderson Reporting Company Official was missing his medication shows that he did not think that he had the power to change his situation.

Justice Ginsburg: There's no indication that he told -- that he told the --

Elizabeth L. Jacobs: No, I agree there isn't.

Justice Ginsburg: -- officers that he needed medication.

Elizabeth L. Jacobs: No, I agree that there isn't. But I think that this is one of the things that -- that was playing on his mind. And although I understand that this is an objective test and not a subjective test, I think that that lends credibility to his testimony at the hearing. Harrington --

Justice Sotomayor: The Ohio court -- or the -- I'm sorry. The court below had its own -- seemingly had its own absolute rule --

Elizabeth L. Jacobs: Yes.

Justice Sotomayor: -- that if you're told you're free to go, that that breaks the chain of custody, whatever that might mean. Assuming -- and the Sixth Circuit said if you are removed from the prison and questioned, you absolutely must be given warnings. Is there a middle ground, and what would that middle ground be? And what would be -- how would that middle ground affect the outcome of this case? Alderson Reporting Company Official

Elizabeth L. Jacobs: I don't believe that telling a prisoner that he's free -- that he's free to leave is a substitute for Miranda. I think you have to get back to what Miranda was trying to protect. It's trying to protect Fifth Amendment rights, and telling him he's free to leave does not do that. So that that's not enough, and that shouldn't be part of the equation, not a significant part of the equation. Harrington --

Chief Justice Roberts: Counsel, you -- you mentioned several times, we were talking about Mathis, that, you know, they mentioned he was in -- in a cell, right? I've just been skimming it quickly. I don't see where that's mentioned. Do you know offhand?

Elizabeth L. Jacobs: No, I don't, but I really -- really did read this case.

Chief Justice Roberts: And I --

Elizabeth L. Jacobs: And I'm sure that it said he was in a cell.

Chief Justice Roberts: I did, too. And -- well, I'll look at it again. I'm sure --

Elizabeth L. Jacobs: Please.

Chief Justice Roberts: I'm sure it's there. All I see is noting that he was in prison serving a State sentence, but --

Elizabeth L. Jacobs: But it doesn't -- it should be Alderson Reporting Company Official talking about the officers, the agents in the cell with him.

Chief Justice Roberts: Okay. Let me --

Elizabeth L. Jacobs: Just in -- as a final comment, I just want to say Harrington v. Richter requires a finding before a writ can issue of an extreme malfunction in the justice system, that certainly where a State court has decided a constitutional issue on a -- on a Supreme Court law and ignores Supreme Court law, that we really do have an extreme malfunction of the judicial system. This Court should affirm the decision of the Sixth Circuit and send Mr. Fields back to Lenawee County for a new trial. If there are no other questions, I'll cede the remainder of my time to the Court.

Chief Justice Roberts: Thank you, counsel. Mr. Bursch, you have 6 minutes remaining. REBUTTAL ARGUMENT OF JOHN J. BURSCH ON BEHALF OF THE PETITIONER

John J. Bursch: I think the hypotheticals today demonstrate how quickly the logic of the Sixth Circuit's new per se rule falls apart when you test it with other facts. Even in the Sixth Circuit's view, you would already make exceptions to that new per se rule if it was in-prison conduct or if it was prison guards as Alderson Reporting Company Official opposed to outside guards. In response to questioning today, Mr. Fields' counsel admits that there must be an exception if you have a button that you can press to get out, like in Mr. Ellison's situation, the First Circuit case that Justice Souter wrote. She admitted that if you're in a circle of proximity or not in a circle of proximity, that that would make a difference. No per se rule. That if the situation isn't confrontational, that you need to have an exception for that, or if the prisoner initiates questioning. And you can imagine many other hypotheticals that would similarly create exceptions to what is supposedly a per se rule. And -- and ultimately what this comes down to is Justice Alito's question: If he's under no pressure at all, the prisoner welcomes the questioning -- and I would submit that a fair reading of the record here shows exactly that -- that even then it would be required. And that is a particularly strange rule when what we're talking about is not a constitutional, mandated protection but a prophylaxis, something that's supposed to protect a constitutional right, and where the protection isn't necessary, nor should there be a per se rule. Counsel also concedes that there isn't anything in Mathis that clearly establishes the rule Alderson Reporting Company Official that the Sixth Circuit applied. Maybe it's an extension; maybe it's implied. I think it's difficult to find either one of those. So, at a bare minimum, this requires reversal under the AEDPA standard. I do want to emphasize that the Sixth Circuit's per se test does have societal costs. It impedes prison administration, and it eliminates potential for voluntary truthful confessions that we all want. Finally, the test that we advocate for is not our own per se test, that simply saying you're free to leave is not the be-all, end-all, because it's possible that officers could say you're free to leave, while doing something else nonverbally that indicates you are not free to leave. That's why the totality of circumstances test makes the most sense. And we urge you to go past the AEDPA question and actually rule on the merits, because we think that would be good guidance for the lower courts and for law enforcement officials. And the test that we would propose is that a Miranda warning is not required when a reasonable person in the prisoner's position would have felt free to go back to his cell in accord with ordinary reasonable prison procedures. That's exactly what happened here. We respectfully request Alderson Reporting Company Official that you reverse. Unless there are any further questions, I'll cede my time.

Chief Justice Roberts: Thank you, counsel. The case is submitted. (Whereupon, at 1:53 p.m., the case in the above-entitled matter was submitted.)