ROBERT SIEGEL, host:
The Supreme Court has formally opened its new term. Today began with the court turning away 1,800 appeals it had accumulated over this summer. And then the justices moved on to their first case, which involves police questioning.
As usual, NPR legal affairs correspondent Nina Totenberg was there.
NINA TOTENBERG: The opening of court is always ceremonial and anticlimactic. The chief justice briefly notes the end of the last term and the beginning of the new one, and then it's off to the races - this term with new Justice Sonia Sotomayor in the junior justice's seat. The first case today involved police questioning of a Maryland man, named Michael Shatzer, who was in prison for an unrelated crime when police first tried to talk to him about allegations that he'd sexually abused his 3-year-old son. But when police advised Shatzer of his right to remain silent and to have a lawyer, he refused to talk and asked for a lawyer. Police didn't contact him again.
Two and a half years later, with Shatzer still in prison, police reopened the case and tried again. Only this time, Shatzer answered questions and gave incriminating answers. The Maryland court of appeals ruled, though, that those incriminating statements could not be used at trial. The state court cited a 1981 Supreme Court ruling that without exception, requires police to stop all questioning once a defendant has asked for a lawyer. Maryland Attorney General Douglas Gansler told the justices today that because there'd been a break in custody in that two-and-a-half-year period, police were free to question Shatzer again. The break was Shazter's return to his cell.
Chief Justice Roberts: How long is a break in custody? Is one day enough? What if it's repeatedly done - sort of catch and release? Justice Kennedy: The possibility of coercion and in prison is substantial. For the person in prison, there's been no break in custody. I think that's a very difficult rule you're proposing. Justice Sotomayor: Counsel, he asked for a lawyer two years and seven months earlier, and the state didn't provide one.
Representing Shatzer, Assistant Public Defender Celia Davis immediately ran into a buzzsaw from Justice Samuel Alito. Would the same rule apply, he asked, if someone is questioned about joyriding and 10 years later is taken in for questioning about a murder in Montana? Or supposing it's 40 years later, the guy's made $20 million, and police want to question him about stock fraud. Would the same rule apply? Answer, yes. Justice Alito: You don't think that's a ridiculous rule? Justice Sotomayor: You're saying that for 40 years he's immunized from questioning? Isn't there a clear break in custody when someone's allowed to go home? A decision in the case is expected later in the term.
Nina Totenberg, NPR News, Washington.
ROBERT SIEGEL, host:
And, Nina, stick around for a minute. Since this was the first official day for the new justice, Sonia Sotomayor, it sounds like she asked questions. Did she seem like new kid on the block, an old hand, what?
TOTENBERG: Certainly not the new kid on the block. She was totally at ease. She slipped right into her new role, much as Chief Justice Roberts did. She was equally tough on both sides. But she wasn't mean. She asked a total of 42 questions this morning, and she seemed to be enjoying herself.
SIEGEL: What does that tell you about what kind of justice you think she'll be?
TOTENBERG: A very engaged one. More than that, I think, is very hard to tell. Will she be influential? Will she move easily from being a lower court judge to one of the nine with the last word? You know, she has 17 years' experience as a federal judge. And I think that always makes it easier than when a state court judge - who doesn't have a lot of experience with federal law. Justice Sandra Day O'Connor and Justice David Souter, I think, had a really longer learning curve because they didn't have that kind of federal experience.
But Justice Breyer, who had 14 years on a federal court, had been the chief judge of his circuit, said it took him about three years to get comfortable with the new role. And remember that what we see in public at oral argument is only a small part of what - of a justice's job.
SIEGEL: Right. You mentioned Justice Sandra Day O'Connor - retired Justice Sandra Day O'Connor. Over the weekend, she made some newsworthy remarks at the College of William & Mary.
TOTENBERG: Yes. She referred to some of her opinions as quote, being dismantled by the current court under Chief Justice Roberts. Since her retirement, the court has backed away from some decisions in which she sort of brokered a consensus - on campaign finance, on abortion, on affirmative action. And asked how she felt about the court, that and this court, she responded, well what would you feel? I'd be a little disappointed, she said. If you think you've been helpful and then it's dismantled, you think, oh, dear. But life goes on, she said. It's not always positive.
(Soundbite of laughter)
SIEGEL: OK, thank you Nina. NPR's Nina Totenberg, who will, as always, be guiding us through the Supreme Court's term. TOTENBERG: Thank you, Robert.
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