Brief of respondent for Florida v. Powell, 08-1175 - Oyez

46
This last sentence could not effectively
convey a right the defendant was never told
he had. In other words, how can a defendant
exercise at any time during an interrogation
a right he did not know existed? The catchall
phrase did not supply the missing
warning of the right to have counsel present
during police questioning because a right
that has never been expressed cannot be
reiterated.
JA 172. 15
15
A federal district court in Florida rejected a similar
argument. In United States v. Taylor, federal agents reading
from a standard form then used by the Department of Homeland
Security, advised the defendants that “[y]ou have the right to
talk to a lawyer for advice before we ask you any questions.” No.
05-60072, at 5 (S.D. Fla. July 26, 2005) (magistrate judge’s
report and recommendation). The magistrate judge found the
warning invalid under Miranda, concluding that most criminal
attorneys, to say nothing of “a suspect unschooled in the law,”
would construe the form as impermissibly limiting access to
counsel to the period before interrogation. Id. at 12. Notably, the
government in that case, like here, argued that other clauses in
the form – a provision providing that “[i]f you decide to answer
questions now without a lawyer present, you have the right to
stop answering at any time” and a waiver provision providing
“[a]t this time, I am willing to answer questions without a
lawyer present” – were sufficient to support a “reasonable
inference” of the right to have an attorney present during
questioning. Id. at 6, 11. The magistrate judge rejected the
government’s parsing of the form, concluding that the “waiver
portion of the form incorporates the statement of rights portion,
which sets forth the right to counsel before questioning
only. Moreover, there is no indication in the form that the right
to terminate questioning implies a right to request counsel or
(Continued on following page)