# Maryland v Shatzer: Legislating from the Bench? **URL:** \ **Category:** Great Debates\ **Created:** [February 25, 2010, 3:11pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388 "2010-02-25T15:11:48Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Enderw24](https://avatars.discourse-cdn.com/v4/letter/e/ba9def/32.png) [@Enderw24](https://boards.straightdope.com/u/Enderw24)\ **Post date:** [February 25, 2010, 3:11pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/1 "2010-02-25T15:11:48Z")
From the opinion: > [@](#): > > In 2003, a police detective tried to question respondent Shatzer, who was incarcerated at a Maryland prison pursuant to a prior conviction,about allegations that he had sexually abused his son. Shatzer in-voked his Miranda right to have counsel present during interroga-tion, so the detective terminated the interview. Shatzer was released back into the general prison population, and the investigation wasclosed. Another detective reopened the investigation in 2006 and at-tempted to interrogate Shatzer, who was still incarcerated. Shatzer waived his Miranda rights and made inculpatory statements. The trial court refused to suppress those statements, reasoning that Ed-wards v. Arizona, 451 U. S. 477, did not apply because Shatzer had experienced a break in Miranda custody prior to the 2006 interroga-tion. Shatzer was convicted of sexual child abuse. The Court of Ap-peals of Maryland reversed, holding that the mere passage of time does not end the Edwards protections, and that, assuming, arguendo, a break-in-custody exception to Edwards existed, Shatzer’s release back into the general prison population did not constitute such abreak. > > Held: Because Shatzer experienced a break in Miranda custody lastingmore than **two weeks** between the first and second attempts at inter-rogation, Edwards does not mandate suppression of his 2006 state-ments. Pp. 4–18. Bolding mine. Full text here: [http://supremecourtus.gov/opinions/09pdf/08-680.pdf](http://supremecourtus.gov/opinions/09pdf/08-680.pdf) Back in the election season of 2008, there was much fanfare from the Right on “Judicial Activist Judges” and “legislating from the bench.” What they were really talking about 99.9% of the time was a judge using previous decisions and interpreting the law to determine a case…in a way in which the person complaining disagreed with. But I think the decision handed down yesterday is a pretty clear example of that .1% and I’m wondering what others think. In the case, the Justices were asked to determine whether it was permissible for police to reinterrogate a suspect after he’s asked for an attorney three years previously. In a 9-0 decision (with a 7-2 support for this rule), the decision was that not only was it acceptable to do that after a three year gap, but that it’s now permissible to do so after just a two week gap. Why two weeks? Because the Justices said so. To my knowledge they were never asked to create a bright line rule and, even if they were, they were under no obligation to do so. But they did. They created the rule out of whole cloth. So I guess I have three questions: 1. Do you agree with this decision? 2. Is this a true example of “legislating from the bench”? 3. If the answer to #2 is “yes” will there be a public outcry from the Right concerning it? My answers: 1. a hesitant yes 2. Yes, absolutely. 3. No. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [February 25, 2010, 3:55pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/2 "2010-02-25T15:55:57Z")
I agree with the decision, don’t see it as legislating from the bench, and expect no public outcry. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [February 25, 2010, 4:02pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/3 "2010-02-25T16:02:55Z")
I’m not sure I agree with the OP - I think this was just trying to deal with the consequences of the earlier _Edwards_ decision. Nobody can credibly argue that an invocation of the right to counsel can last forever, or that that invocation will be known to all law enforcement officials the accused meets in the future. When he is read the Miranda warning again and waives counsel, does an invocation of counsel a decade ago hold sway? Refraining from dealing with this could call the _Edwards_ and possible the _Miranda_ decision into question, and that likely isn’t wise for a number of reasons. ---
**Author:** ![Enderw24](https://avatars.discourse-cdn.com/v4/letter/e/ba9def/32.png) [@Enderw24](https://boards.straightdope.com/u/Enderw24)\ **Post date:** [February 25, 2010, 4:12pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/4 "2010-02-25T16:12:21Z")
> [@Mr.Moto](#): > > I’m not sure I agree with the OP - I think this was just trying to deal with the consequences of the earlier _Edwards_ decision. Nobody can credibly argue that an invocation of the right to counsel can last forever, or that that invocation will be known to all law enforcement officials the accused meets in the future. When he is read the Miranda warning again and waives counsel, does an invocation of counsel a decade ago hold sway? > > Refraining from dealing with this could call the _Edwards_ and possible the _Miranda_ decision into question, and that likely isn’t wise for a number of reasons. All true. The Justices were unanimous in that no one has an infinite amount of time in which their right to not be questioned remains active. But the question before them was “is three years too long?” It would have been perfectly acceptable for the Supreme Court to have said "Three years is too long " and left it at that. And next year when a case comes up asking if nine months is too long they could have determined that then. It’s pretty much par for the course for the court to ONLY decide what’s come before them and nothing more. But here they said “yeah, not only is three years more than enough time, but 15 days is as well. That wasn’t a law before. Now it is. Enjoy!” That’s judicial activism at its finiest. ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [February 25, 2010, 4:16pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/5 "2010-02-25T16:16:02Z")
> [@Enderw24](#): > > All true. The Justices were unanimous in that no one has an infinite amount of time in which their right to not be questioned remains active. > But the question before them was “is three years too long?” > It would have been perfectly acceptable for the Supreme Court to have said "Three years is too long " and left it at that. And next year when a case comes up asking if nine months is too long they could have determined that then. I don’t see how this would be better. If the SCOTUS has a time in mind for when declining an attorney should be active, why not just say so and save everyone the trouble of having to go through tens of court cases until someone stumbled on the right amount of time? > [@](#): > > It’s pretty much par for the course for the court to ONLY decide what’s come before them and nothing more. I don’t think this is true. ---
**Author:** ![Stuffy](https://avatars.discourse-cdn.com/v4/letter/s/f17d59/32.png) [@Stuffy](https://boards.straightdope.com/u/Stuffy)\ **Post date:** [February 25, 2010, 4:19pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/6 "2010-02-25T16:19:11Z")
1. I agree with the decision 2. No. In fact I’m kind of onboard with establshing a bright line. Are we sure that that 2 weeks isn’t a reference to that other decision, or maybe a response to a question put forward during the hearing? ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [February 25, 2010, 4:26pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/7 "2010-02-25T16:26:15Z")
> [@](#): > > I’m not sure I agree with the OP - I think this was just trying to deal with the consequences of the earlier Edwards decision. Nobody can credibly argue that an invocation of the right to counsel can last forever, or that that invocation will be known to all law enforcement officials the accused meets in the future. > [@](#): > > I don’t see how this would be better. If the SCOTUS has a time in mind for when declining an attorney should be active, why not just say so and save everyone the trouble of having to go through tens of court cases until someone stumbled on the right amount of time? > [@](#): > > No. In fact I’m kind of onboard with establshing a bright line. Are we sure that that 2 weeks isn’t a reference to that other decision, or maybe a response to a question put forward during the hearing? You guys are missing the forest for the trees. The issue in the OP is not what a reasonable amount of time is for Miranda rights to be held. The issue is are conservative justices as activist as they claim liberal justices are? Conservatives claim that liberals “legislate from the bench” and make things up which aren’t there in the laws. And they say that’s wrong and they never do it themselves. So, was there a fifteen day time limit written in any law passed by Congress? If not, then this was “legislating from the bench” - Justices creating a law not just ruling on it. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [February 25, 2010, 5:10pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/8 "2010-02-25T17:10:42Z")
> [@Little\_Nemo](#): > > So, was there a fifteen day time limit written in any law passed by Congress? If not, then this was “legislating from the bench” - Justices creating a law not just ruling on it. Well, Congress did pass that pesky Fifth Amendment restricting self incrimination, didn’t they? ---
**Author:** ![Snowboarder\_Bo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/snowboarder_bo/32/229_2.png) [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)\ **Post date:** [February 25, 2010, 5:24pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/9 "2010-02-25T17:24:32Z")
> [@Mr.Moto](#): > > Well, Congress did pass that pesky Fifth Amendment restricting self incrimination, didn’t they? Which has what to do with the topic currently under discussion? ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [February 25, 2010, 5:40pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/10 "2010-02-25T17:40:28Z")
Just that I see a distinction between inventing law out of whole cloth (like, for instance, the notion that abortion is a federally protected right) and this, which while it may be criticized is a discussion of the limits of something actually in the Constitution. ---
**Author:** ![Rumor\_Watkins](https://avatars.discourse-cdn.com/v4/letter/r/d9b06d/32.png) [@Rumor\_Watkins](https://boards.straightdope.com/u/Rumor_Watkins)\ **Post date:** [February 25, 2010, 5:41pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/11 "2010-02-25T17:41:31Z")
> [@Snowboarder\_Bo](#): > > Which has what to do with the topic currently under discussion? The fact that it’s the source of the Miranda rule? And the fact that it’s pretty practically vague as to what it means and how it is applied? ---
**Author:** ![Simplicio](https://avatars.discourse-cdn.com/v4/letter/s/c37758/32.png) [@Simplicio](https://boards.straightdope.com/u/Simplicio)\ **Post date:** [February 25, 2010, 6:16pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/12 "2010-02-25T18:16:02Z")
> [@Rumor\_Watkins](#): > > The fact that it’s the source of the Miranda rule? > > And the fact that it’s pretty practically vague as to what it means and how it is applied? The right to consuel part of the Miranda rule is the 6th Amendment, not the fifth. But that doesn’t really change **Moto’s** point, so just a nitpick. ---
**Author:** ![Triskadecamus](https://avatars.discourse-cdn.com/v4/letter/t/b19c9b/32.png) [@Triskadecamus](https://boards.straightdope.com/u/Triskadecamus)\ **Post date:** [February 25, 2010, 6:37pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/13 "2010-02-25T18:37:36Z")
> [@the opinion quoted in the OP](#): > > Shatzer waived his Miranda rights and made inculpatory statements. So, if I invoke the right to counsel, then my own waiver of that right given later is not acceptable? Was that made clear to me? You have the right to chose to be represented by counsel, and if you so chose, you may no longer give up that right? Seems a bit odd, is all. Absent argument that undue influence was present in the subsequent waiver, isn’t it my choice to speak, or remain silent? Speaking out once is already recognized as NOT being a waiver of right to remain silent. Why did prosecutors not argue that Miranda was given again, since obviously it was, unless the respondent simply jumped up and said “I want to sign a Miranda waiver.” Tris ---
**Author:** ![Enderw24](https://avatars.discourse-cdn.com/v4/letter/e/ba9def/32.png) [@Enderw24](https://boards.straightdope.com/u/Enderw24)\ **Post date:** [February 25, 2010, 6:44pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/14 "2010-02-25T18:44:46Z")
> [@Triskadecamus](#): > > So, if I invoke the right to counsel, then my own waiver of that right given later is not acceptable? Was that made clear to me? You have the right to chose to be represented by counsel, and if you so chose, you may no longer give up that right? > > Seems a bit odd, is all. Absent argument that undue influence was present in the subsequent waiver, isn’t it my choice to speak, or remain silent? Speaking out once is already recognized as NOT being a waiver of right to remain silent. Why did prosecutors not argue that Miranda was given again, since obviously it was, unless the respondent simply jumped up and said “I want to sign a Miranda waiver.” > > Tris The reason why is that when you ask to speak to a lawyer, all questioning on the subject matter must instantly cease. No further questioning can be conducted unless the lawyer is then present. There are exceptions to this, obviously, but that’s the general rule. So the question in this case was whether you could come back at a future point in time, remirandize the guy, and start asking questions on the same subject matter as before? The question then becomes what good is invoking your right to an attorney and having the interrogation stop if police can come back in after an hour and just re-Mirandize you and hope that this time you’ll talk to them then? ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [February 25, 2010, 7:08pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/15 "2010-02-25T19:08:30Z")
“Judicial activism” is a load of bunk. On the facts of the case as presented by the OP, he is correct that this is as activist a decision as you might find anywhere. The Court has inarguably written a de facto statute here. But so what. Courts do that; there’s nothing improper about it, and of course the legislature can change it if they think the Court screwed up. Two weeks does seem a weird line to establish – maybe it’s about fair (pinko that I am, I’d suggest something longer, though maybe not much longer). And there’s potentially a later case that says this is mere dicta, and a longer time might still be found too short. (Which would presumably require a personnel change.) But I don’t see anything wrong with it, as I don’t see anything wrong with so-called “judicial activism” generally. Also, of course, it’s hard to get antsy about an activist decision offering a gloss on Miranda, which is the ne plus ultra of legislating from the bench. –Cliffy ---
**Author:** ![Algher](https://avatars.discourse-cdn.com/v4/letter/a/3d9bf3/32.png) [@Algher](https://boards.straightdope.com/u/Algher)\ **Post date:** [February 25, 2010, 7:16pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/16 "2010-02-25T19:16:29Z")
I am not sure about the decision. 2 weeks is pretty short in my opinion to be considered a break. I do not personally consider this legislating from the bench. The law was vague, the Court had to determine where the line is drawn in the law. Conservatives won’t care, since it won’t hit their radar. ---
**Author:** ![Richie\_Incognito](https://avatars.discourse-cdn.com/v4/letter/r/e36b37/32.png) [@Richie\_Incognito](https://boards.straightdope.com/u/Richie_Incognito)\ **Post date:** [February 25, 2010, 9:42pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/17 "2010-02-25T21:42:17Z")
> [@Enderw24](#): > > From the opinion: > Back in the election season of 2008, there was much fanfare from the Right on “Judicial Activist Judges” and “legislating from the bench.” What they were really talking about 99.9% of the time was a judge using previous decisions and interpreting the law to determine a case…in a way in which the person complaining disagreed with. The Judicial Activist Judge argument isn’t as simple as conservatives whining that left leaning judges use caselaw and interpret the law in a way they don’t agree with. There is a widespread problem in the legal system where the Judges judge based on their definition of fairness and not on the law. This is why a common conversative argument is to demand mandatory sentencing. In the criminal courts, very rarely does a Defendant receive the full sentence the law states. In the civil courts, very rarely does the debtor pay the full amount owed. ---
**Author:** ![DanBlather](https://avatars.discourse-cdn.com/v4/letter/d/f4b2a3/32.png) [@DanBlather](https://boards.straightdope.com/u/DanBlather)\ **Post date:** [February 25, 2010, 10:21pm UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/18 "2010-02-25T22:21:51Z")
> [@Little\_Nemo](#): > > So, was there a fifteen day time limit written in any law passed by Congress? If not, then this was “legislating from the bench” - Justices creating a law not just ruling on it. Miranda was not a law passed by Congress, it was a principle recognized by the Supreme Court. Who better to interpret it. That given, yes Conservatives legislate from the bench just as much as liberals. Bush v Gore is a na example. ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [February 26, 2010, 1:12am UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/19 "2010-02-26T01:12:15Z")
> [@Richie\_Incognito](#): > > There is a widespread problem in the legal system where the Judges judge based on their definition of fairness and not on the law. This statement reveals a high level of ignorance of what judges do. Judges have to make a decision of what the law means when it’s not explicit on its face. –Cliffy ---
**Author:** ![Richie\_Incognito](https://avatars.discourse-cdn.com/v4/letter/r/e36b37/32.png) [@Richie\_Incognito](https://boards.straightdope.com/u/Richie_Incognito)\ **Post date:** [February 26, 2010, 4:16am UTC](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388/20 "2010-02-26T04:16:21Z")
> [@Cliffy](#): > > This statement reveals a high level of ignorance of what judges do. Judges have to make a decision of what the law means when it’s not explicit on its face. > > –Cliffy very often the law is explicit. Either through ignorance or ego a judge will choose not to follow it. I spend a minimum of 6 hours a week in court rooms. I feel I can speak better than most on what judges do. [Next page](https://boards.straightdope.com/t/maryland-v-shatzer-legislating-from-the-bench/530388.md?page=2)