The D.C. Court of Appeals today upheld the armed robbery convictions of a man who argued that his videotaped confession should be thrown out because police officers had, in an earlier session, previously ignored his requests for a lawyer while questioning him for hours.
According to the opinion, which was written by Judge Inez Reid and joined by Judge Phyllis Thompson, who also filed a concurring opinion, the break between interrogations was enough to render James Dorsey’s confession valid. Dorsey was arrested in 2005 for attacking and robbing an 83-year-old street vendor in a videotaped assault that caused a stir in Washington.
But in a dissent,Judge Stephen Glickan said that the interrogation of Dorsey amounted to the “most egregious case of police disobedience to the requirements of Miranda and Edwards that I recall coming before this court during my years on the bench.”
The opinion says that on May 3, 2005, Dorsey allegedly attacked street vendor Vassiliki Fotopoulos in Northwest Washington and kicked and beat her before stealing $300 from her cart. Fotopoulos suffered injuries to her eyes, nose, head, and legs, the opinion says.
The attack was caught on surveillance cameras. Four witnesses identified Dorsey as the assailant based on his clothing, mannerisms and a distinctive skull cap, the opinion says.
When Dorsey was arrested four days later on suspicion of a different charge, Metropolitan Police Department officers held him in an interview room for between 12 and 13 hours. While in the interview room several MPD officers interrogated him and ignored what the opinion describes as his “repeated efforts to terminate the interrogation, specifically his statements that he wanted to tell his story in court; he wished to go to his cell so he could sleep; he needed to talk to a lawyer; he was waiting to be charged; and he did not want to talk.”
At about 8:30 a.m. on May 8, Dorsey was taken to his cell and allowed to sleep until that afternoon. The opinion says that after several hours in his cell, Dorsey began banging on the cell wall and demanding to speak with Detective Michael Ross because he wanted to confess to the attack on Fotopoulos. When Ross wasn’t immediately available, Dorsey called out to officer Joseph Crespo, another MPD officer Dorsey had dealt with on a prior arrest. (At the time of the Fotopoulos attach, Dorsey had been arrested more than 30 times and had been convicted 10 times.)
During Crespo’s interview, Dorsey described and demonstrated how he had attacked Fotopoulos and said several times that he did not know she was “that old,” the opinion says.
After a trial before D.C. Superior Court Judge Herbert Dixon Jr., a jury convicted Dorsey of aggravated assault while armed (citing his shod foot as the weapon) and armed robbery of a senior citizen. He was sentenced to two concurrent 14-year prison terms and five years of supervised release.
On appeal, Dorsey challenged the trial court’s admission of his videotaped confession because MPD officers failed to honor his request for a lawyer. During the May 19, 2009 argument, Dorsey’s lawyer, Mikel-Meredith Weidman of the D.C. Public Defender Service, argued that the second interview session was improper because he had not validly “initiated” contact with police under the Supreme Court’s 1981 decision in Edwards v. Arizona.
Elizabeth Danello, an assistant U.S. attorney who argued on behalf of the government, conceded that police violated the rules laid out in Edwards and in Miranda v. Arizona during the first stage of the interrogation. But Danello argued that Dorsey’s decision to renew the interrogation during the second stage should be allowed because he was not subjected to undue pressure and he was simply trying to “get it off his chest.”
Reid’s 19-page opinion sides with the government’s position. In the opinion of the court, Reid writes, “In light of our review of the record, the trial court’s credibility determinations and its factual findings, Mr. Dorsey’s substantial experience with the criminal justice system, his high school education his obvious knowledge that he had a right to an attorney (which he had invoked during phase one of the interrogation), and his initiation of his conversation with the police on May 8, we have no doubt that the trial court was correct in concluding, based on the totality of the circumstances, that Mr. Dorsey knowingly and intelligently waived his right to counsel.”
Thompson writes in her concurring opinion that, “I am satisfied that there was a qualitative ‘break in the stream of events sufficient to insulate’ Mr. Dorsey’s confession from ‘the effect of the prior coercion,’ and that Mr. Dorsey’s initiation of a further discussion or his confession was not tainted by the detectives’ improper conduct after he had invoked his right to counsel.”
Glickman’s dissent makes a much different determination based on the facts of the case. Glickman cites the “sleep deprivation, verbal harassment, and physical discomfort” to which Dorsey was subjected and says that police ignored his “numerous” attempts to assert his Fifth Amendment rights.
“All agree that the police violated Miranda and Edwards by continuing to badger appellant to confess after he asserted his Fifth Amendment rights,” Glickman writes in his dissent. “It is an understatement to say the detectives did not “scrupulously honor” appellant’s rights to cut off questioning and to have counsel present during his interrogation. My colleagues nonetheless conclude that the government met its burden of showing that appellant ‘initiated’ the resumption of his interrogation after he at last was permitted to sleep for a few hours, and that appellant validly waived his Fifth Amendment rights before he confessed.”
Glickman goes on to write, “Appellant could not have waived his Fifth Amendment rights knowingly, intelligently and voluntarily because the detectives made him understand that, on this occasion, those rights were inoperative. There can be no valid waiver of rights by one who is not allowed to exercise them.”