John J. Flynn for the Petitioner Ernesto Miranda
John Flynn, John Frank’s choice to deliver the oral
argument for Miranda, was not widely known
outside Arizona in 1966. He would become much admired
within his profession, for though he argued with earnest
passion in the courtroom, in a style of speaking that at
times could be candidly assertive and was not easily
deposed, he was a man of impeccable sincerity and
humility. The combination of Frank’s written brief and
Flynn’s oral advocacy produced a lucid yet wholly
extemporaneous quality, as if he were merely speaking
his mind and heart honestly, without forethought. In
later years, whenever he was in trial, the courtroom
would usually fill with journalists, trial buffs, and
law students. His closing arguments drew standing
audiences who were routinely swept away by the force and
persuasiveness of his oratory. Indeed, his influence on
the Supreme Court during the oral argument phase of the
Miranda case was so great that in 1994, American
Heritage’s Our Times magazine, in profiling the
previous four decades, gave Flynn the credit for
“winning” the case, naming him on its list of “ten
people who changed the way you live but you have never
heard of any of them.”
The records cannot show how well he presented himself at
ten o’clock in the morning on February 28, 1966. There
are no videotapes of the proceedings; however, anyone
familiar with Flynn’s style can easily imagine him,
uncomfortably restricted to a position behind the podium
but nevertheless conveying to the court his passion for
his argument. He had but two objectives, which he was
determined to obtain. First, he wanted to frame the
central argument in such a way that all nine justices
could take the first step toward abstracting his central
premise: Most American citizens were at a legal
disadvantage as soon as they came under police scrutiny.
Second, he wanted to make sure the issue from that day
forward was not whether to warn but when
to warn. For, as both he and Frank saw it, this was the
sticking point. Despite Gideon, Escobedo,
and subsequent changes requiring police to tell suspects
of their right to counsel, those opposed to the whole
notion of warning were continuing to argue against the
requirement on practical grounds, contending that even
if a law mandated a warning, the law simply could not be
applied fairly and consistently. If the question of
timing could be resolved, both Frank and Flynn believed
the one last real obstacle to an American right to
remain silent would be removed.
With these goals in mind, and knowing that his time was
strictly limited, and that the justices would surely
interrupt him at any moment with a question or
observation that would sidetrack his formal
presentation, Flynn went quickly through the obligatory
phase of his argument - the traditional statement of the
facts of the case. Without elaboration he explained that
the issue before the Court concerned the admission in
evidence of the defendant’s confession and then finished
by simply emphasizing that the confession “had been
given in the absence of counsel.”
....
Not until he reminded the Court that the police had not
arrested or interrogated anyone else, and then asserted
that Miranda was thus the “focus” of the
investigation - that Ernesto Miranda and Detective
Cooley had, in a sense, become opposing
“advocates,” - did one of the justices finally
interrupt.
“What do you think is the result of the adversary
process coming into being when this focusing takes
place?” Justice Potter Stewart asked. “What follows from
that? Is there then, what, a right to a lawyer?”
It was not the question Flynn most wanted to answer, of
course, for it led directly toward the issue he wanted
to dispense with. But he was not surprised by it, nor
would he be deterred by it. Yes, he thought a man could
have a lawyer at this time, he told Justice Stewart, “If
the man knew his rights.” Then, before Justice
Stewart could respond, he added, “if he’s rich enough,
and if he’s educated enough to assert his Fifth
Amendment Right, and if he recognizes that he has
a Fifth Amendment Right to request counsel.” And there
it was: a bold assertion that the Fifth
Amendment, not the Sixth, made Miranda different
from its predecessors - Powell, Gideon,
and Escobedo. Historically, the right to counsel
was addressed, granted, or withheld under the umbrella
of the Sixth Amendment, which was exactly what the
written briefs in Miranda espoused. Flynn’s bold
assertion to Justice Stewart may have been the spark
that generated the firestorm.
|
