A full sitting of the District of Columbia Court of Appeals today reversed (PDF) the conviction of a man charged in the brutal assault of an elderly street vendor, finding that police secured his confession by repeatedly violating his constitutional rights to remain silent and ask for a lawyer.
James Dorsey was charged with beating and robbing an 83-year-old street vendor, Vassiliki Fotopoulous, in Washington's Foggy Bottom neighborhood. A District of Columbia Superior Court jury convicted him in May 2006. Dorsey appealed, arguing that the trial judge was wrong not to suppress a confession he gave to police.
After losing his first appeal, Dorsey petitioned to have a full sitting of the court hear his case. Today, in a 5-2 decision, the court sided with Dorsey, finding that police not only ignored Dorsey's requests to remain silent and speak with a lawyer, but also proceeded to badger him "with a vengeance."
In a statement, Dorsey's attorney, Samia Fam of the D.C. Public Defender Service, said they were pleased that the en banc court "vindicated Mr. Dorsey's constitutional rights to counsel and to remain silent during custodial interrogation, rights that the Supreme Court has recognized as the cornerstone of the Fifth Amendment guarantee against compelled self incrimination."
A spokesman for the U.S. attorney's office, William Miller, said they were reviewing the ruling and had no other comment.
According to court briefs, Fotopoulous was assaulted on May 3, 2005. It was a high-profile case, and local television stations ran tape of the robbery caught by a surveillance camera. Several days later, Dorsey was arrested for an unrelated domestic violence complaint. Dorsey initially waived his Miranda rights, agreeing to speak with police, but when the questioning shifted to the attack on Fotopoulous, Dorsey indicated he didn't want to talk. Police continued to question him.
Dorsey denied any involvement in the attack and repeatedly asked to stop and be taken back to his cell so he could sleep. Several hours into questioning, he asked for a lawyer, but police continued the interrogation. After 12 hours, Dorsey was brought to a cell and slept for several hours. He eventually asked to speak with an officer and confessed to the attack and robbery.
Dorsey moved to suppress the confession, arguing that it was the result of coercion and a significant violation of his constitutional rights. The trial judge denied the motion, finding that Dorsey's demeanor and statements showed that he was motivated to confess by feelings of remorse. Dorsey appealed.
A split three-judge appellate panel ruled in August 2010 to uphold the trial judge's decision. An en banc sitting of the court heard arguments in June 2011. Judge Stephen Glickman, who authored the dissent in the August 2010 decision, wrote the majority opinion today reversing Dorsey's conviction and ordering a new trial.
The case came down to the relationship between the first and second rounds of questioning. Glickman found that although Dorsey initiated the confession, he only did so after police made it clear that they would not stop even after he invoked his constitutional rights. The judge noted that Dorsey's confession "echoed" comments police made during his interrogation.
"It is not enough that Dorsey was aware of his rights in the abstract and knew enough to try to assert them; every time he actually did assert his rights, his assertions were overridden and his rights were denied," Glickman wrote (emphasis in original).
Glickman added that the court was not adopting a "per se" rule that all suspect-initiated confessions were invalid if they followed improper police questioning. The burden is on the government, the judge wrote, to prove that the confession wasn't reasonably caused by the earlier bad behavior.
Glickman was joined by Chief Judge Eric Washington, Associate Judges Anna Blackburne-Rigsby and Kathryn Oberly, and Senior Judge Vanessa Ruiz, who was an associate judge when they heard the case.
Senior Judge Inez Smith Reid – also an associate judge at the time – and Associate Judge Phyllis Thompson wrote dissenting opinions. Thompson wrote that while the police behavior in this case was "shocking," she found that Dorsey was aware of his rights when he confessed and did so voluntarily.
Reid wrote that the majority opinion "eviscerates" the possibility of a suspect making a valid confession after improper questioning, even if he had a break from the pressures of interrogation. Although Glickman had said the majority wasn't creating a new rule, Reid found that their opinion would do just that.