“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

 

Trump Third Circuit judge David Porter cast the deciding vote to allow FBI agents to continue to interrogate an individual and use statements he made after he stated he wanted to invoke his right to have a lawyer present, claiming that he had invoked that right only as to a specified topic and later waived it. The August 2021 decision was in US v Rought.

James Rought was indicted for selling prescription painkiller Fentanyl that resulted in “serious bodily injury or death” because one of the individuals who used the drug, Dana Carichner, died of an overdose. The FBI wanted to interrogate Rought and advised him of his rights, but he stated that he wanted a lawyer to be present, at least for some subjects including Carichner’s death. The FBI proceeded to interrogate him without a lawyer and when Rought later made statements about Carichner’s death, they claimed he had waived his rights and used the statements against him. The district court agreed with the FBI, and Rought was convicted based in part on the statements he made. He appealed to the Third Circuit.

In a 2-1 decision in which Trump judge Porter cast the deciding vote, a panel of the Third Circuit affirmed. The majority agreed that once a person has “invoked” a right to counsel, he or she is “not subject to further interrogation” until a lawyer is present. The majority also noted, however, that a person can decide to subsequently “initiate” discussions with the police and waive the right to counsel. Based on the Supreme Court’s decision in the Barrett case, moreover, the majority held that individuals can “limit their invocations of the right to counsel” to a selected “topic or subject matter.” According to the majority, that is what happened in this case where, as the district court found, Rought limited his invocation of the right to counsel to questioning about “the circumstances of Carichner’s death.” Because it was Rought who later “initiated” discussions on that topic, the majority ruled, the FBI  could validly continue questioning on that topic without a lawyer present, and all statements made by Rought were validly used against him at trial.

Judge Jane Roth, who was nominated by President George H.W. Bush, firmly dissented on the law and on the facts. The majority incorrectly interpreted Barrett, she pointed out, because that case did not involve a “topic-specific” limit on questioning without counsel, but instead a situation where an individual said he had “no problem talking” about an incident but would not give a “written statement” without a lawyer present. Transforming Barrett into a rule that allows police to limit the invocation of the right to counsel by topic, Roth explained, will turn the right to counsel during interrogation into a “gotcha game.” Under the majority’s new rule, she went on, police can “continue to question” a person even about subjects related to a specific out-of-bounds topic, and if they are able through clever questioning to “induce” him or her to “bring up the protected subject matter,” then “gotcha”—he or she “has waived the right to counsel.” The majority’s new rule is clearly “oblivious to the coercive character of custodial interrogation,” she continued. and improperly “treats a suspect like a law school student who is taking an exam on criminal procedure.” The proper interpretation of past precedent, Judge Roth concluded, is that “once a suspect invokes the right to counsel as to one aspect of the police’s investigation,” then the police “may not continue to question” about “any aspect of their investigation,” under which the interrogation of Rought was clearly improper.

Even accepting the majority’s new rule, Judge Roth explained that its decision was wrong on the facts. The ruling was premised on the district court’s conclusion that the topic on which Rought wanted counsel was Dana Carichner’s death. But the court “clearly erred,” Roth explained, in drawing that conclusion. As the record reveals, the FBI agent said to Rought “Let’s talk about Dana. What happened there?’ to which Rought responded “I don’t really want to talk about that aspect without my lawyer…” The agent’s request to “talk about Dana,” not only “Dana’s death,” Roth wrote, was clearly “not susceptible” to the “narrow reading” given by the district court, and authorizing any continued questioning without a lawyer concerning Carichner, which is what happened, was clearly improper even under the majority’s rule.

As a result of Porter’s deciding vote, however, Rought’s conviction using improper statements will stand and future individuals in the Third Circuit (Pennsylvania, New Jersey, and Delaware) may be subject to the “gotcha” rule and lose their constitutionally guaranteed right to counsel during police interrogation. The case provides another example of the importance of confirming fair-minded judges nominated by President Biden who will respect our constitutional rights and help counteract the votes of Trump judges on police misconduct and other issues.