The D.C. Court of Appeals is weighing whether a Washington man, James Dorsey, could have voluntarily confessed to beating an elderly street vendor in 2005, given the fact that police had already ignored his attempts to stop the interrogation and to ask for a lawyer.
Dorsey lost his first appeal of the conviction before the appeals court in August 2010, but was granted a rehearing today before the full court. His attorneys at the D.C. Public Defender Service are arguing that a win would be an affirmation of defendants' rights, while a loss could open the door to more violations in the future.
Vassiliki Fotopoulous was, at the time of the incident, an 83-year-old street vendor working around Foggy Bottom. On May 3, 2005, a surveillance camera recorded a man verbally confront Fotoupoulous, hit and kick her, and then leave after searching her pockets.
Police honed in on Dorsey as a suspect, and he was arrested on an unrelated assault report filed by his girlfriend on May 7.
Dorsey waived his Miranda rights and the police began questioning him around 7:30 p.m. But around 11:15 p.m., he asked to stop the interrogation, a request that the police ignored. At around 2:30 a.m., he told police he wanted a lawyer. That request was also denied.
Both the U.S. attorney’s office and Dorsey’s attorneys agree that the interrogation, which lasted until around 8:30 a.m. the next day, was rife with violations of Miranda and also the Supreme Court’s 1981 decision in Edwards v. Arizona, which held that interrogation must stop once a defendant asks for a lawyer. The trial judge agreed, suppressing Dorsey’s testimony from that part of the interrogation at trial.
Dorsey was taken to a jail cell at around 8:30 a.m. and allowed to sleep until around 3:30 p.m. or 4:30 p.m. At that point, police reported that Dorsey asked to speak with investigators and eventually confessed.
A jury found him guilty of aggravated assault while armed and armed robbery on May 11, 2006. He was sentenced to serve 14 years in jail.
Dorsey appealed, arguing that his rights under Miranda and Edwards were never reinstated before the second conversation, rendering the discussion and confession invalid for admission at trial. In a split ruling written by Judge Inez Reid and joined by Judge Phyllis Thompson, the three-judge panel ruled against him.
Judge Stephen Glickman vigorously disagreed with his colleagues at the time, writing in his dissent that the case represented “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.”
Dorsey petitioned for a hearing before the full court, which was granted in March.
According to briefs, the case boils down to two issues – first, whether Dorsey’s request to speak with police should be considered a valid initiation of renewed interrogation, and second, whether he voluntarily waived his Miranda rights during the second interrogation and confession.
Public Defender Service attorney Samia Fam argued today that because the police violated Dorsey’s rights during the first round of interrogation and then took no steps to fix those violations – by calling in a lawyer, for instance – his request to speak with police couldn’t be considered a valid initiation.
The fact that Dorsey was allowed to sleep in a jail cell for several hours wasn’t enough to clear the slate, she said, because there was no reason to believe his already-violated rights were reinstated when he asked to speak with police. She also noted that the Supreme Court has held that spending time in jail can be considered part of coercion.
“This is really egregious what they did in this case…nine hours of unconstitutional badgering,” she said, adding that his request to speak with police was a direct response to that badgering. “That cell is not restorative at all.”
Fam said Dorsey couldn’t voluntarily waive his Miranda rights because they no longer existed; police did not re-read Dorsey his rights before the second round. If the court ruled against Dorsey, she said, it would create “perverse incentives” for police to ignore future invocations of Miranda.
Assistant U.S. Attorney Elizabeth Danello argued that the seven or eight hours Dorsey spent in the jail cell was enough time to break up the two sets of interactions with police. When Dorsey sat down with investigators the second time, she said, he told them that he was confessing because he felt remorse, not because he felt coerced.
Although the police violated Dorsey’s rights to stop the interrogation and to ask for a lawyer, that doesn’t meant he didn’t know what those rights were and wouldn't be able to voluntarily waive them later on, she added. Furthermore, when the case went before the trial judge, Danello noted that Dorsey again didn’t say he confessed because he felt coerced.
Danello also argued that Edwards could not apply in this case because while that underlying case involved a police-initiated interrogation, this case involved a defendant-initiated interrogation. Any new rules under Edwards would be inappropriate, Danello said.