from Chapter 2

Robert J. Corcoran—The Birth of The Miranda Warnings

Excepts from pages 42-45

In a real sense, Robert Corcoran stands at the nexus between Escobedo and Miranda, for it was he who, as Arizona counsel to the American Civil Liberties Union, “found” the Miranda case. Upon reading the Arizona Supreme Court’s decision, which affirmed Ernesto Miranda’s conviction based largely on his stationhouse confession, Corcoran saw a rare opportunity, at least in Arizona, to advance the cause of justice for all - the guilty as well as the innocent.

A former Arizona state prosecutor, Corcoran had, in a sense, changed camps by 1965 and become very active in the Phoenix chapter of the ACLU. His interest in civil liberties, which had taken root at Fordham University, where he had studied law, had also been nourished when he moved to Phoenix to join the law firm Lewis, Roca, Scoville, Beauchamp, and Linton. And it was thriving by the time he left Lewis and Roca in 1964 to join the small firm practice of Jay Dushoff and Sy Sacks. While with Lewis and Roca, Corcoran had worked with John P. Frank, John J. Flynn, and James Moeller - the three men who would eventually form the “Miranda Team.” Corcoran became interested in Miranda’s case in the summer of 1965.

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What first made Corcoran believe the case might be reviewed by the United States Supreme Court was that the Arizona Supreme Court had declined to apply Escobedo’s holding, which had established the Sixth Amendment right to counsel during interrogations. Specifically, the Arizona Supreme Court reasoned that Miranda had not asked for an attorney before he confessed to Detectives Cooley and Young. Because California v. Dorado had just expanded Escobedo by holding that the right to counsel existed at the stationhouse even if the suspect did not ask for a lawyer, the court had also specifically mentioned the California Supreme Court, saying that it did “not choose to follow Dorado in the extension of the rule announced in Escobedo.”

Corcoran, like many others, viewed Escobedo as another incremental change, consistent with past standards, and so he became hopeful that Miranda might be the next step in the effort to further expand the Escobedo doctrine to include cases wherein the suspect had not asked for a lawyer. The timing of the U.S. Supreme Court’s confession decisions also sparked Corcoran’s interest. The Warren Court had recently ruled to prohibit de jure segregation - a measure against elements of the McCarthy era’s tirades - and to involve itself in the individual rights of suspected criminals.

Also, while the Warren Court had seemed to go out of its way to avoid establishing an absolute right to counsel in Escobedo, it had set stringent standards for police officials for the first time. Unlike his former colleagues in the Maricopa County Attorney’s office, who viewed Escobedo as a threat to the use of crucial police procedures, Corcoran saw a legitimate need for restraint on interrogation behavior and believed the role of lawyers in police interrogations was critical to the Sixth Amendment’s guarantee of the effective assistance of counsel in criminal cases.

Finally, in reading the Arizona Supreme Court’s summary treatment of the confession issue in Miranda’s case, Corcoran realized that the court’s handling of the right to counsel issue was “directly opposed” to California’s and therefore amounted to a direct constitutional conflict. “[W]hen the investigation reaches the accusatory stage,” the California court had held, “the defendant must be advised that he does have the right to counsel and that anything he does say may be used against him.”

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Corcoran then turned to Lewis and Roca’s nationally renowned constitutional scholar, John P. Frank. Corcoran assumed that Frank would enlist the aid of Lewis and Roca’s most well-known courtroom warrior, John Flynn. Flynn was hardly a constitutional scholar and had no Supreme Court experience, but that part of the case would be handled by Mr. Frank. The combination of Flynn’s courtroom skills and Frank’s constitutional scholarship encouraged Corcoran to write directly to Ernesto Miranda on June 24, 1965. In this proposal letter he told Miranda that while Moore’s representation as an “appointed attorney” would not permit him to bear the expense or spare the time to take the case to the United States Supreme Court, Lewis and Roca, however, “would be happy to take your case to the Supreme Court and will bear the expenses.”

Corcoran also provided Miranda with a typed letter for his use should he choose to retain Lewis and Roca. On the same date, Corcoran delivered all the case files to Lewis and Roca, telling the firm to expect a retention letter from Miranda, and in his transmittal letter to the law firm, Corcoran offered the aid of the “national office of the American Civil Liberties Union,” indicating that either he or another lawyer would petition the United States Supreme Court to “come in as Amicus Curiae (friend of the court) on the case.” Amici, or, persons not parties to the case, are given latitude at the discretion of the Court to introduce arguments, authorities, or evidence to protect any of their interests that might be impacted by the Court’s decision in the case.

In his letter of June 27, 1965, Alvin Moore likewise encouraged Miranda to retain Lewis and Roca, and Miranda officially retained Lewis and Roca at the beginning of July 1965. “Your letter which I recently received has made me very happy,” Miranda wrote. “To know that someone has taken interest in my case has increased my moral [sic] enormously.”