Florida Vs. Powell on August Term Paper

Long, 463 U.S. 1032, 1040 (1983)) since the independence of a state court's state-law judgment is not clear.

Furthermore the Court stated that the Florida Supreme Court treated state and federal law as interchangeable and interwoven and therefore would give jurisdiction to the U.S. Supreme Court based on a ruling made in the Michigan v. Long case.

The most weight was obviously put on the wording used and how it can be interpreted and how it was interpreted. Since there are grammatical differences between "before" and "during," the decision cannot be upheld. It is clear that if the interrogator used the phrase: ".. An attorney will be presented to you before questioning" it is not the same as if it would read: ".. And attorney will be presented to you before and during questioning." This is misleading and can be interpreted as if the defendant would have the right to talk to his attorney only before interrogation starts.

Justice Stevens and Justice Breyer does not agree with the U.S. Supreme Court decision and argues that the Florida Supreme Court's ruling is correct. They argue that the U.S. Supreme Court therefore lacks jurisdiction to review the judgment, notwithstanding the failure of that court to include some express sentence that would satisfy this Court's "plain-statement rule." The adequate-and-independent-state-ground doctrine rests on two cornerstones: respect for the independence of state courts, and avoidance of rendering advisory opinions (Florida v Powell, 2010).

As Justice Stevens and Justice Breyer conclude they point out the difference of opinion, in their judgment, falls short of providing a justification for reviewing this case when the judges of the highest court of the State have decided the warning is insufficiently protective of the rights of the State's citizens. In their view, respect for the independence of state courts, and their authority to set the rules by which their citizens are protected, should result in a dismissal of this petition (Florida v Powell, 2010).

Application of the Law

While it is the Supreme Courts function to interpret the law and to determine if proper due process took place, it is not the its function as a court to advise lower Courts. Therefore the ruling cannot be accepted as state since the independent state Supreme Court did its due diligence and provided a ruling based on state law and used the constitution as a guideline and support for its ruling. Hence, the U.S. Supreme court decision should be overruled since it violated the independence of the State.

The Fifth Amendment clearly states that any person has the right to protect themselves from self-incrimination. This is the main point of discussion in this case. Since the Florida Supreme Court based its decision on the Florida constitution and only considered similar cases as guide to explain their decision, the ruling should not be overturned by the U.S. Supreme Court.

The main issue is that a constitutional right was violated for the defendant and the results were incarceration. Since with the proper warning in regards to the presents of an attorney and the clarification of the duration for the questioning in the attorneys presence could have prevented the incarceration, the U.S. Supreme Court ruling should be over ruled.

Conclusion

It is therefore that the ruling of the U.S. Supreme Court needs to be overruled and the defendant, Mr. Powell by released from the custody of the State of Florida where he resides for the reasons of inadequate and unconstitutional police interrogation.The constitution was developed to prevent injustice to the people of the United States. Our forefathers knew what they wanted to change, which was the law in their countries which were unfair and did not protect its citizens. They therefore created a frame work of laws in the anticipation that most of them will be held true even after many decades past.

These man knew that during their time there where inquisition, and other unjust procedures used by authorities to retrieve confession from people. It is not said that these people had been criminals. It was easier at those times to torture a person to get a confession than to investigate the crime more thoroughly.

Today we are debating who has what right, while overlooking the facts that the U.S. Constitution will cover almost every aspect of the law. If we obey by these laws, and include proper due process, we can be sure that cases like this one would not happened or at least could have been avoided.

The legislator should take a closer look at these cases and make the necessary changes in conjunction with our judicial system. In the case Florida v Powell some changes could be incorporated in the Miranda warnings to avoid these kind of cases in the future. For example, the wording could be:

"..You have the right to talk to a lawyer before answering any of our questions and at any time during questioning." (State of Florida v. Kevin Dewayne Powell, 2008)

This extension would make it clear to a defendant what rights he really has and how he can use these rights. It also would take out all the aggravation involved in criminal proceedings. If law enforcement around the country would all have the same wording to their Miranda warning, these kinds of cases would be seldom in the future.

It is therefore that the existing decision by the U.S. Supreme Court is not adequate to support the Fifth Amendment right of the U.S. Constitution, nor to support the declaration of independence, as motioned by Richard H. Lee and seconded by John Adams, as written " .. that these United Colonies are, and of right ought to be, free and independent States .." (Wikipedia.org).

Reference

Chon, S.H., & Wu, F.H. (2009, December 7). Florida v. Powell (08-1175). Retrieved April 29, 2010, from Legal Information Institute - Bulletin: http://topics.law.cornell.edu/supct/cert/08-1175#top

Florida v Powell, No. 08 -- 1175 (the Supreme Court of the United States February 23, 2010).

Michigan v Long, No. 82-256 (Supreme Court of the United States July 6, 1983).

Miranda v Arizona, No. 759 (Supreme Court o fthe United States June 13, 1966).

State of Florida v. Kevin Dewayne Powell, SC07-2295 (Supreme Court of Florida September 29, 2008).

Thomson Reuters . (2009). "Miranda" Rights and the Fifth Amendment. Retrieved April 28, 2010, from Criminal Law: Your Rights: http://criminal.findlaw.com/crimes/criminal_rights/your-rights-miranda/miranda.html

U.S. Constitution. (1789, March 4). Bill of Right. Retrieved April 29, 2010, from U.S. Constitution: http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

Wikipedia.org. (n.d.). United States Declaration of Independence. Retrieved April 29, 2010, from United States Declaration of Independence: http://en.wikipedia.org/wiki/United_States_Declaration_of_Independence.....