The Florida Bar

Florida Bar News

Convention features lawyer behind the right to remain silent

Regular News

Convention features lawyer behind the right to remain silent

One of the lawyers involved in the Miranda case will discuss the landmark ruling at the Presidential Showcase Seminar “The 50 Years of Miranda” at the Bar’s Annual Convention in Orlando June 16 from 2 to 6 p.m.

Presented by the Bar’s Continuing Legal Education Committee and the Criminal Law Section, “The 50 Years of Miranda” will provide a detailed analysis of the decision itself, the caselaw that followed the Miranda decision, as well as what the future holds for Miranda. The program will also provide a glimpse into the real-world aspect of how Miranda came into being.

Program Chair George E. Tragos of Clearwater said the attorney who drafted the writ of certiorari for Ernesto Miranda, Robert A. Jensen, will provide the program participants with a rare glimpse into how his firm was selected, what his firm thought of the selection, and the background involving the writ, including its drafting and presentation to the Supreme Court.

“What he knows about this appeal and about the man Miranda will give all attendees a unique insight into the backstage drama that is Miranda,” said Tragos.

In 1963, Ernesto Miranda was arrested by the Phoenix Police Department based on circumstantial evidence linking him to the kidnapping and rape of an 18-year-old woman 10 days earlier. After two hours of interrogation by police, Miranda signed a confession to the rape charge on forms that included the typed statement: “I do hereby swear that I make this statement voluntarily and of my own free will, with no threats, coercion, or promise of immunity, and with full knowledge of my legal rights, understanding any statement I make may be used against me.”

Miranda was convicted and sentenced to 20 to 30 years on the charge. His trial lawyer filed an appeal to the Arizona Supreme Court claiming the confession was not fully voluntary. The Arizona Supreme Court affirmed the trial court’s decision to admit the confession. Filing as a pauper, Miranda requested the U.S. Supreme Court review his case. As his trial lawyer was unable to take the case because of health reasons, the American Civil Liberties Union asked John J. Flynn, a criminal defense attorney, to serve pro bono along with his partner, John P. Frank and associates Paul G. Ulrich and Jensen of the law firm of Lewis and Roca in Phoenix. A 2,500 word petition for certiorari that argued that Miranda’s Fifth Amendment right had been violated was sent to SCOTUS.

“The drafter of that petition for certiorari was a lowly associate in the firm by the name of Robert A. Jensen,” Tragos said. “Jensen had only been with the firm for a couple of weeks and was not yet admitted to the State Bar of Arizona. The firm figured that it was such a long-shot that Mr. Jensen was told he could argue the case if he was admitted by then.”

Tragos said Flynn had tried and won a disproportionate share of 113 first-degree murder cases. Frank had clerked for Justice Hugo Black, taught constitutional law at Yale, and argued over 500 appeals, Tragos said, adding Frank wrote 11 books and consulted with Thurgood Marshall on the Brown v. Board of Education, and represented Anita Hill at the Clarence Thomas confirmation hearings.

“It was these men that guided a young associate not even admitted to the Arizona bar through the drafting of the petition, which was eventually presented to the United States Supreme Court,” Tragos said.

In November 1965, the Supreme Court agreed to hear Miranda. In January 1966, Flynn and Frank submitted their arguments stating that Miranda’s Fifth and Sixth amendment rights to counsel had been violated by the Phoenix Police Department. The State of Arizona responded stating that Miranda’s rights had not been violated. The first day the case was argued was in February 1966. However, because there were three other cases and other information in the case, the oral arguments were extended to a second day — March 1, 1966. On the second day of argument, the related cases were heard. Marshall, the former NAACP attorney, was last to argue. In his capacity as the solicitor general, he presented the Johnson administration’s view that the government did not have the resources to appoint a lawyer for every indigent person who was accused of a crime. Chief Justice Earl Warren wrote the opinion in Miranda v. Arizona, which was released on June 13, 1966.

Tragos said the Supreme Court set aside Miranda’s conviction, but Arizona decided to retry him. In the second trial, his confession was not introduced, but he was convicted and sentenced to 20 to 30 years in prison. Miranda was paroled in 1972. After his release, he started selling autographed Miranda warning cards for $1.50.

“The Florida Bar is fortunate at this opportune time to be able to hear directly from one of the men involved in this dramatic case which changed the face of criminal justice,” Tragos said. “John P. Frank and John J. Flynn have passed away, but that young associate who had only been working for the firm for a few weeks survives as an active practitioner in Phoenix, Arizona.”

News in Photos


Be a Thankful Lawyer

Columns | Nov 16, 2023

Mindfulness, Emotions, and the Likelihood of Confusion

Columns | Oct 18, 2023

Be a Choosy Lawyer

Columns | Oct 10, 2023

Be an early lawyer

Columns | Sep 17, 2023