Gotham Central: Motive

The “Motive” arc takes up Gotham Central # 3-5, and wraps up a lot of loose ends from the previous story, “In the Line of Duty,” which we looked at last week. This one actually contains a real gem of a legal issue, which is handled exactly right. Spoilers inside!

The GCPD is looking for both the Firebug, who’s been burning stuff down around town, and for the person who kidnapped and murdered a teenage babysitter, the investigation of which got this whole thing started. The cops, presumably using a CI, figure out where Firebug is supposed to be holed up. But when they get there… it’s just some old guy, who jumps out the window rather than get caught. He survives the fall and winds up telling the police that yes, he did used to be Firebug, but he sold his suit as “memorabilia” a while back. Doesn’t really know to whom, but he could identify him if he saw him.

The cops then start to suspect the man for whom the deceased had been babysitting. They bring him to the station under the pretense of clarifying his version of events, and the ex-Firebug identifies him as the new Firebug. This is enough for a warrant, and the cops search the apartment, finding both the Firebug suit and forensic evidence connecting him to the murder of the babysitter.

At which point the suspect shouts “You tricked me! You didn’t read me my rights, and you tricked me!” All of which is correct. But the detective responds “Screw your rights.”

Which is maybe a bit unexpected, but he explains his thinking: “We’ve got your wife talkin’ a mile a minute, right now. We’ve got the Firebug suit, and we’ve got Bonnie’s blood on your tank.”

In other words, even if the cops have potentially violated the suspect’s Fifth Amendment rights against self-incrimination, his Sixth Amendment right to counsel, or his broader Miranda rights, it doesn’t matter, because they’ve got more than enough evidence to nail him, and none of that evidence depended on statements he made while in police custody.

As it turns out, this is precisely correct.

In Chavez v. Martinez, 538 U.S. 760 (2003), the Supreme Court held that a violation of the Fifth Amendment does not occur until statements obtained in violation of the Constitution are used against a defendant at trial. Not only did the defendant here not really make any incriminating statements, but the police totally do not need them to get their conviction. The suspect was identified by a witness at the police station, and that’s enough for a warrant.   

It’s also very significant that the identification was made before the suspect was indicted or charged.  A suspect has a right to counsel during lineups and one-on-one identifications “at or after the initiation of adversary judicial criminal proceedings,” but not before.  Kirby v. Illinois, 406 U.S. 682, 689 (1988).  So Firebug didn’t have a Sixth Amendment right to counsel at that point anyway.

Furthermore, the remedy for a Miranda violation is exclusion of improperly obtained evidence, but since the police don’t need to use any of that evidence, there would be no consequences to the alleged violation in this case.

As far as being tricked, the police are generally allowed to lie in order to induce cooperation or even outright confession. Nothing they did here seems to cross any lines.

Oh, and once the suspect figured out the gig was up, he blew up the room, having apparently snuck some Firebug gear in with him. I mean, way to go coppers, but at least one was at the ready with a fire extinguisher, so no one was seriously hurt. In any case, the Fifth Amendment right to silence only protects testimonial statements, and we’re pretty sure arson and attempted murder don’t count as testimonial statements, so they’ve got him on those at the very least.

So, in conclusion, it was quite pleasant to see a series which continues to show promise deal with a rather subtle legal issue so accurately. More next week!

10 responses to “Gotham Central: Motive

  1. I am in the middle of studying for my Criminal Procedure: Investigation exam Friday morning, so the timing of this post was perfect. 🙂

  2. Would there be any issues raised by the police bringing the suspect to the station to see if the former Firebug could identify him? Would this be influencing a witness from the lack of a line-up with several other men of similar appearance?
    On another note Miranda rights are a bit interesting some times. A relative from Europe once protested that the police had not read him his rights only to learn that those rights don’t exist in Italy (or rather that they don’t have the same procedures).

    • First of all, one-on-one identifications are constitutional, so there’s no inherent problem with that. Second, the way the story went down, there wasn’t a formal ID. The informant was sitting with a sketch artist trying to come up with a composite, and the cop shad the suspect go through the room, never even mentioning to either man what was going on. The informant was surprised enough to prompt a cop to ask “Well?” to which the informant responded “How’d you find him?” The informant hadn’t been told anything about the suspect, or even that the suspect was going to be there. So the cops’ handling of that situation seems to work.

    • You raise an important point, which is that even though lineups, mug shot viewings, and even one-on-one identifications are allowed, they must not be so “unnecessarily suggestive and conducive to irreparable mistaken identification” that they violate Due Process. Stovall v. Denno, 388 US 293 (1967). So, for example, lineups must include people broadly similar in appearance to the suspect and mug shot viewings should include several other photographs, not just the suspect.

      The Supreme Court noted in Stovall that “The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it.” In this case, the witness was not prepped regarding the confrontation, nor was he asked if he recognized the suspect. The witness’s unprompted recognition of the suspect is thus likely not a violation of the suspect’s Due Process rights.

    • Actually, the research has shown that viewing single individuals gives fewer false identifications than line-ups of multiple individuals. Thus the lack of a line-up is actually in the suspect’s favour.

      The cause seems to be an internal assumption that the guy you’re looking for is in the group so you pick out whoever is closest.

      • Sometimes human psychology seems to point more and more to a lack of reasoning capabilities.

      • It’s a bit more complicated than that. A totally spontaneous pick is likely going to survive court challenge. For an ID procedure, there’s research showing that to get the best results for a reliable ID, you need to (1) present the witness with at least 5 other choices who are matched to the witness description without the suspect standing out, (2) having given a series of cautionary instructions to the witness not to assume the true culprt is in the array, (3) shown by someone who doesn’t know who the suspect is among the choices, and (4) images shown one at a time (and witness asked for yes/no to each), rather than all side by side. Witness has to see all of the images, even if he/she makes an early pick.

        The gory details about why are here:

    • I can’t talk about Italy, but about another civil law country, Finland. The European Convention on Human Rights, and the jurisprudence of the European Court of Human Rights are clear: a criminally accused person in Europe has the right to counsel and the right not to make self-incriminating statements or to remain silent.

      However, this right is understood differently from American practice.The length of interrogation is usually limited by national law. For example, in Finland, any person has the duty to submit to police interrogation for not less than 12 hours per diem. The police needs to inform before the interrogation whether the person is heard as a witness, a victim or as a suspect. The interrogation may not take place (excluding immediate crime-scene investigation) between 10 pm and 7 am. The suspect has the right to remain silent, and this right cannot be completely waived: even if the suspect answers a question, he can refuse answering another question. The suspect also has the right to have defence counsel present. These rights are given in writing to the suspect at the beginning of an interrogation but not during the actual arrest.

      The fourth amendment rights are actually better secured than in Europe as they are mostly statute law, not common law. However, there are differences: in Finland, the right to write search warrants is delegated to police lieutenants and higher police officers, not to courts.

    • Yes and no. Most states stil use the federal standards for admission or suppression of an ID set forth by the U.S. Supreme Court in Manson v. Braithwaite and Neil v. Biggers (cases from the mid-1970s). The gist is that an ID is suppressed if the procedure is unnecessarily suggestive and the resulting ID is unreliable.
      A “showup”, which is what this is, starts as suggestive per se. Question becomes is there a good reason (an exigency) for the police using this instead of a line-up or a photo array. Much would depend on what the former Firebug had been told he was there to do, whether now-Firebug had ever been arrested (and thus had available booking photos), and so on. If a court is persauded it is unnecessarily suggestive, then we get to is it reliable — we look at the interaction between the two men, the delay between their encounter and the ID procedure, and, most controversially, the witness’ confidence in the ID. (This is controversial because confidence can be artificially inflated by a suggestive procedure, so there’s a circular problem with using the results of a challenged procedure to decide if it is reliable.)

      For more than you probably wanted to know about modern ID procedure and criticism of the Neil/Manson tests read here:

      and here:

  3. I don’t know much about Firebug but couldn’t the old Firebug be charged with the crimes he commited before he retired so to speak? I don’t know if he ever murdered anyone, but is there a statute of limitations on arson? Furthermore could he be tried as an assessory to the crimes to the new Firebug? Any reasonable person should know what the new guy was planning by buying the old costume. Last question, how successful would the new firebug have been using a frame defense, you know, before he tried to blow up the interrogation room. Seems he would otherwise have a solid argument that the old Firebug never sold him the suit, had planted it and other evidence at him home and oh conveniently is the one who made the ID.

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