Summary
noting Henry decision in Fourth Circuit to be "directly contrary" to our case
Summary of this case from Wilson v. HendersonOpinion
No. 832, Docket 78-2015.
Argued May 23, 1978.
Decided September 20, 1978. On Rehearing En Banc Decided January 23, 1979.
A petition for rehearing containing a suggestion that the action [2 Cir., 584 F.2d 1185] be reheard en banc having been filed herein by counsel for the appellant, and a poll of the judges in regular active service having been taken and there being no majority in favor thereof,
Upon consideration thereof, it is
Ordered that said petition be and it hereby is DENIED.
Circuit Judges FEINBERG, MANSFIELD, OAKES, and GURFEIN vote to reconsider whether Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires reversal of the judgment of the District Court.
Circuit Judges MANSFIELD, OAKES, and GURFEIN also vote to reconsider whether reversal is required by Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
Circuit Judge OAKES has filed a dissenting opinion.
I wish to have my dissent to the denial of the petition for rehearing en banc noted not to add anything to the substance of what was said in my original dissenting panel opinion but to underscore the importance of the Miranda and Massiah issues involved, an importance that is emphasized by Professor Yale Kamisar's forthcoming article, Brewer v. Williams, Massiah and Miranda: What Is "Interrogation"? When Does It Matter?, 67 Geo.L.J. 1 (1978), to be published shortly. I note also that a panel majority of the Fourth Circuit has recently held on the Massiah point directly contrary to the panel majority in this case. Henry v. United States, 590 F.2d 544 (4th Cir. 1978).