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Md. lawyers recall Justice Stevens as forceful, thoughtful, bright

Thirty years ago, the attorney for a missing Baltimore baby argued for a U.S. Supreme Court ruling that would force the mother to reveal the youngster’s whereabouts despite her asserted constitutional right against self-incrimination.

Mitchell Y. Mirviss said Thursday that he was ready to explain to the justices how the mother’s compliance with a lawful order to assist in the missing-person search did not implicate her Fifth Amendment right when he was jarred by a question from Justice John Paul Stevens.

Stevens, who died Tuesday at age 99, asked how Jacqueline Bouknight’s compliance could be anything but self-incriminating if the child was dead.

“I was not surprised that the issue came up,” Mirviss said in recalling his Nov. 7, 1989, argument.

“I was surprised by how forcefully and clearly Justice Stevens pierced through all of the examples I had given of how the child could have been produced if alive,” added Mirviss, of Venable LLP in Baltimore. “The way Justice Stevens asked the question, it was from a common-sense perspective of, if the child is dead anything that reveals the evidence of his death is going to be incriminating. That definitely pushed me back; I was not ready for that direct question.”

Mirviss called it “a very probative question that had no easy answer,” as evidenced by “the lack of a clear and direct answer” on his part.

Mirviss’ argument nevertheless prevailed, as the Supreme Court ruled 7-2 in 1990 that the mother may not invoke the privilege against self incrimination to resist a court order to produce her child. Stevens, contrary to his line of questioning, joined the majority opinion in Baltimore City Department of Social Services v. Bouknight.

The mother spent seven years in jail for contempt of court for not complying with the order. The child was never found.

Mirviss offered his recollections following Stevens’ death in Fort Lauderdale, Florida, a day after he suffered a stroke. Stevens, a 1975 appointee of President Gerald Ford, served on the high court until his retirement in 2010.

Former Maryland Attorney General Douglas F. Gansler also argued before Justice Stevens, on Oct. 5, 2009.

Gansler was pressing the Supreme Court to overturn a Maryland Court of Appeals ruling that police had violated the constitutional rights of a defendant by resuming their questioning of him two years and seven months after he had invoked his right to counsel on a related charge.

Stevens interjected that the officers’ initial Miranda warning was “a little misleading” in light of their failure to provide the defendant an attorney and their return, albeit more than two years later, to resume their questioning.

“Justice Stevens was known as a moderate, practical, deliberative, thoughtful and well-liked justice,” Gansler said Wednesday in recalling his argument in Maryland v. Shatzer.

“Justice Stevens was making a broader point in his questioning,” added Gansler, now with Cadwalader, Wickersham & Taft LLP in Washington. “He was probing the edges of the argument to focus on where the right outcome should be.”

The high court ultimately held in 2010 that the Miranda warning lasts for two weeks, after which police may reinterrogate defendants after again notifying them of their right to have an attorney. Stevens concurred in the judgment, saying that two weeks is too short a life for the Miranda warning but that two years and seven months was certainly too long.

Attorney Charles O. Monk II was deputy Maryland attorney general on March 24, 1987, when he argued in favor of the admissibility of victim-impact statements during the sentencing phase of death penalty cases.

The case, Booth v. Maryland, involved the 1983 robbery and stabbing deaths of septuagenarians Irvin and Rose Bronstein in their West Baltimore home. John Booth was sentenced to death after the jury heard victim-impact statements from the couple’s son, daughter, son-in-law and granddaughter.

Stevens, who grew to oppose the death penalty while on the high court, asked whether the constitutional prohibition on cruel and unusual punishment permits a harsher penalty for convicted murderers whose victims had children.

“His questions were not a surprise,” said Monk, now with Saul Ewing Arnstein & Lehr LLP in Baltimore.

“You understood where the justices stood on the death penalty issue,” Monk added. “Justice Stevens was the most effective questioner from that (anti-death penalty) side. He effectively made his point.”

Stevens ultimately joined the high court’s 5-4 decision in 1987 that victim-impact statements pose an unacceptable risk of violating a capital defendant’s constitutional rights. The high court would later uphold victim-impact statements in its 1991 Payne v. Tennessee decision.

Attorney William H. “Billy” Murphy Jr., in contrast to his fellow lawyers, appeared before a more sympathetic Stevens on April 18, 1990, in arguing that permitting the alleged victim of child sexual abuse to testify by closed-circuit television violated the defendant’s constitutional right to confront the accuser.

In questioning Murphy, Stevens helpfully said that closed-circuit testimony would deprive the trial judge of the chance to observe whether the prosecutor was coaching the child witness, such as by nodding while asking questions.

“How under that procedure would the judge rule on an objection?” Stevens asked.

“That’s an excellent question,” Murphy responded. “He would not be able to rule. He would not know firsthand the facts.”

Recalling the argument, Murphy said Thursday that Stevens’ question was “sympathetic” and aimed more at his colleagues than at the attorney.

“Very often questions from the bench … are directed at fellow judges,” Murphy said. “It is an attempt to convince them to come over to the other side.”

However, the court ruled 5-4 in 1990 that protecting children from the trauma of testifying in court through closed-circuit testimony trumped the defendants’ right to confront their accusers directly. Stevens joined the minority in Maryland v. Craig.

“Justice Stevens is sorely missed,” said Murphy, of Murphy, Falcon & Murphy in Baltimore. “He was faithful to precedent. He was extraordinarily bright. He understood the importance of people’s rights in the criminal justice system.”

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