The state's highest court said for the first time today that police do not have to give a Miranda warning to a suspect who has already consulted with a lawyer and has that lawyer with them while being questioned by police.
In a 4-3 ruling involving a Winchester murder, the majority of the Supreme Judicial Court said Fifth Amendment protection against self-incrimination – and the stronger protection under Article 12 of the state Constitution – are safeguarded because the lawyer can step in and stop questioning at any time.
"The omission of Miranda warnings confers no advantage on the police when the interview of the suspect takes place in the presence of an attorney,'' Justice Judith Cowin wrote for the majority. When a suspect "has both the opportunity to consult with an attorney and an attorney by his side, sufficient protection exists against any police misconduct.''
But the dissenters, led by Justice Margot Botsford, said the majority has stripped residents of the greater legal protection given Massachusetts citizens under the state Declaration of Rights. She also noted the Miranda warning has been given by police since 1966.
"Police have been administering Miranda warnings to suspects for more than forty years; doing so is an integral piece of proper police procedure,'' Botsford wrote. "This clarity offers essential protection of a suspect's Article 12 rights.''
The case involves the Oct. 24, 2007 murder of Christopher Barbaro, who was shot to death inside his Irving Road home. His brother, Bryan, was also shot but survived and was able to give police the first name of his the alleged attacker – Wally.
Police said in court papers that led them to Wally Simon who they followed as he drove into Boston and met with his attorney. After about an hour of waiting, Simon was questioned with his then-attorney, Daniel Solomon, next to him. Simon insisted he was not on Irving Road at the time of the shootings.
Simon's current attorney, Aviva Jeruchim, sought to suppress the questioning on the grounds that police did not give Miranda warnings. In a telephone interview today, she said she was disappointed by the majority ruling.
"They took away the obligation of law enforcement to provide certain warnings, which the Supreme Court has considered sacrosanct,'' she said. "They've allowed these rights to be watered down.''
In a statement, Middlesex District Attorney Gerard T. Leone Jr. said prosecutors will now push ahead for the first-degree murder trial against Simon, who allegedly shot the brothers during a robbery.
"The defendant's own admissions were made in the presence of his attorney and should, as the SJC today affirmed, be admissible,'' Leone said.
In a second part of the ruling, the court barred prosecutors from introducing portions of the 911 call made by Bryan Barbaro, who has since died from causes unrelated to his having been shot in the chest.
Citing US Supreme Court decisions, the SJC said some of the contents is testimonial evidence that Simon will not be able to confront Barbaro about since he will not be at the trial, and must be stricken for constitutional reasons.
Jeruchim said the court made the right decision. She said not everything police are told in a 911 call is the truth, noting that in the infamous Charles Stuart case he claimed his wife was shot by a black man when police eventually learned Stuart had shot her himself.
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