When I ran out of money from the first bank robbery, I asked Craig if he wanted to do a bank with me. He was as quick to accept as I had been earlier that year with Tom. It’s like that when you’re desperate.
I wouldn’t let Craig have a loaded gun; he carried an inoperable shotgun for show. I did that because I wasn’t sure how he would react under stress, and I didn’t want anyone to be hurt. We were in and out of the bank in three minutes, and we didn’t lock anyone in the vault. We didn’t think ahead enough to realize that, because the bank was so near Lincoln, big city cops would have helicopters to chase us within minutes. We could hear them. We were lucky that morning, but we seemed to always be lucky in taking down banks. The morning fog protected us from the helicopters above.
The $12,000 take was a disappointment to Craig, because it was about enough for each of us to buy a used car. Most of the haul was in small bills.
I paid most of my half to the lawyer representing me for my old failure to appear on the bad checks charge. I handed him a paper bag full of money, mostly ones.
“Tips from my restaurant job,” I told him.
Gresham came next, the third bank. It was close to where my grandparents lived, which was awful for them when the truth came out later. We were in and out in less than four minutes.
The fourth bank was in Peru, Nebraska. We were starting to unravel, becoming careless, doing a little less planning each time. I really did believe the end was near, and I had accepted that. In Peru, I went in disguised as a dirty homeless guy and started screaming like the characters in Pulp Fiction who rob the diner. We did that to change our modus operandi. This was the year of the meth takeover and of recent casino openings along the Missouri River, and it was a record year for bank robberies. We wanted ours to become lost in the crowd.
Peru is close to the Missouri River, which is also near to the Nebraska, Iowa, and Missouri state line. We sped out of town, nearly were stuck in the mud beside the river, popped up on a road, and crossed the bridge. A mile into Missouri, three speeding state troopers flew right past, heading to block off the bridge.
We crossed into Iowa close to Council Bluffs, made our way back to Omaha, then back to Lincoln. A little while after I dropped Craig off, I was caught in a speed trap driving down “O” Street. I pulled over and handed my friend Kirk, who was in the car, a wad of cash from my pants. My Smith & Wessy and $15,000 were in the trunk. The cops were so anxious to have me on a warrant—the bad checks—that they didn’t search the car, which was just left beside the road.
Kirk bailed me out with the cash a couple of days later. The stuff was still in the car when I got back to it. That was the spring of 1998. With close calls like that, I could feel my time was coming.
My brothers knew what I was doing, as did a small circle of friends. Tyler, who sold us weed and guns and stolen cars, had a rented garage in Lincoln where we would camp out late at night, working on cars and smoking weed. We went out dancing to clubs, where, thanks to fat tips, we were ushered in through the side doors instead of having to wait in line. At the apartment, we slept until noon and played video games and watched Cheers and Cosby Show reruns. We were lords of a cut-rate Camelot.
The police were circulating a composite drawing of me. It was on the television news a few days before we were caught. It wasn’t a great likeness, but it was close enough to make my father, who saw it at work, lock himself in his office and cry. Dad wasn’t sure it was me, but he thought it could explain a lot of the new mysteries surrounding me.
The beginning of the end was when I received word that my little brother, Brett, and Craig’s little brother, Cody, and a mutual friend of theirs, Harley, were planning to rob a bank. They were all seventeen. I raced to David City to confront Brett. We had a shouting match, but what credibility did I have to tell him no?
I should have gone to Dad, of course, but I wasn’t even thinking that way anymore. Besides, what would I have said? “Dad, Brett wants to be a bank robber like me.” My brain had narrowed down to nothing.
So I made Brett a deal. He and his friends could do something for me on the next bank job, certainly not inside the bank, and I would give them a taste of the loot. But never again. And we would all retire from doing banks after that. He agreed.
Like I have said before, bringing in Brett is the moment of my past for which I have the least patience or understanding. Instead of protecting him, I was asking him to steal a car for me.
Craig and I already had our sights set on a bank at Pilger, Nebraska. Brett and Harley set out to find a getaway car. They took one and hid it at an abandoned farm. It evidently wasn’t entirely abandoned, because the car was gone the next day, returned to its owner.
They found another car, but a few miles down the road it ran out of gas. We were all in it. We walked up to a farmhouse to borrow some gas. The people were very nice and asked where we were from. Like an idiot, I said David City. They filled up a jug of gas, enough for us to make it to the nearest station. When we filled the car up in town, we realized none of us had cash, so we drove away. It was like I was begging to be caught.
The next day, the day of the bank robbery, we were on our way to the bank when the transmission went out. Somebody really didn’t want us to rob that bank, or certainly didn’t want the young boys involved. But we found a third car and were back in business.
I did the bank myself. It was a bigger bank than I was accustomed to, with three tellers and two handfuls of customers. I had spent all of about five minutes planning the job.
I went in screaming. One man looked at me with an incredulous grin, almost laughing, like he was about to give my performance two thumbs down.
People were running out the back door of the bank. The manager had a .357 Magnum pistol in his desk drawer.
I cleaned out the tills and made my way to the vault. With my pistol, I scooped the cash into a bag. It didn’t look like much. I moved across the bank lobby with big steps. Craig’s brother, Cody, was waiting at the curb as my driver. People, including the manager, were running out of the bank. Some were screaming.
When I jumped into the car, Cody mashed out of town and sailed over the first hill at ninety, causing us to glide through the air. The rest of the guys were waiting in another car at the edge of town, where we abandoned the getaway car.
We made it to our hideout—Cody’s mom’s house on an Indian reservation. I started counting the stash. It was over $130,000. I was stunned; we were Midwest rich. It was unsettling, like an extra zero on your paycheck.
We were in Omaha when the FBI started to close in. I went to buy my first suit, an Armani for a wedding I planned to attend. It was the wedding of the dispatcher and my former point guard, whose conversations we had overheard on the scanner after our first bank job. Nebraska is like that sometimes.
A week after the job, Harley was arrested on a minor charge and had way too much money on him. The dominoes fell quickly. The FBI was mounting evidence against us, such as my palm print on one of the cars. The elderly people who had lent us the gas and who knew we were from David City had talked to the people we had stiffed at the gas station, then to the police. It was coming from all directions.
I was tackled by agents in the lobby of the Doubletree hotel in Omaha, just off Seventy-second Street. From the lobby floor I looked up at the big skylight and it was ribbed like a spiderweb. I laughed inside. Too perfect.
On my way to Lincoln in handcuffs, I was very angry that the FBI had denied me my Butch Cassidy ending. Rather than go out in a blaze of criminal glory, I’d have to face my parents and see their pain. That had always been the nightmare.
When the Eighth Circuit Court of Appeals had denied John’s appeal, one of the judges had written a separate but concurring opinion; he agreed with the verdict of the majority, but he took a different path to get there. I had read his opinion before but not closely, because it said John was not entitled to a new trial. But I was looking at anything unusual that might be the loose thread to u
nravel the Gordian knot, so I read his opinion again.
In the majority opinion, the other judges had discussed Miranda in the context of the Fifth Amendment’s right against self-incrimination. That’s completely normal. Most people and most courts equate Miranda with that constitutional provision. But Miranda does more than just protect against self-incrimination; it protects the accused until an attorney can be afforded.
The Fifth doesn’t expressly extend the right to an attorney, but it gives you the right to shut up until you have one. The Sixth, on the other hand, explicitly guarantees the “Assistance of Counsel” for a defense. Judge Riley, who concurred with the court of appeals majority, had written that John’s Sixth Amendment right was also in play.
The question of whether the Fifth or the Sixth was active in John’s case depended on whether the police were just investigating, or whether they had already filed charges. If they were just investigating, the Fifth gave John the right to shut up until he could obtain a lawyer. If the State had already charged him with a crime, then the Sixth was in play, because the State had started, officially, the adversarial process, with the government on one side and the defense, through an attorney, on the other.
Here is the way to think about that: let’s say the IRS is nosing around your financial records. The auditor asks you questions. You don’t have to incriminate yourself, thanks to the Fifth Amendment. Now, say the government has actually filed charges against you for tax evasion and you are sitting in a courtroom. The prosecutor is not going to go looking through your wallet for evidence of your hidden wealth. Everything the prosecution does must be carefully requested by motion. The lawyers will make copies, and it’s all, well, very courteous and done at arm’s length. That’s because you are in a trial, the government has started the game, and the game has rules set by the Sixth Amendment.
So when the cops showed up at John’s house, was it an investigation or was the game already on? It was on, because John had just been indicted by a grand jury. So everything that happened after the indictment was more like a trial, falling under the rules of evidence, methods of disclosure, and so on. The game had begun and the Sixth Amendment applied. That’s what Judge Riley was hinting at. He knew that once the indictment came down the game changed and it had become a formal adversarial proceeding.
I couldn’t figure why that was important, but I knew it was. I knew the riddle was in that direction. I knew the Sixth Amendment’s right to counsel opened a new world of legal protections, but it was a secret world to me.
“Hey, buddy,” John said. “You come up with anything yet?”
I laid it out for him. I told him that we at least knew where the magic cave was, and now we had to explore it. He looked discouraged, like I was going off on a tangent, and we didn’t have time for that.
Instead of reading just Miranda cases, I had to learn what the Sixth Amendment right to counsel protected and how it differed from the Fifth Amendment right to self-incrimination, which also, thanks to the Miranda decision, included a right to counsel.
It was right there in front of me somewhere, but my mind was twisted into knots. I stared at the 1,800-page Modern Criminal Procedure book and continued reading.
After lights-out one night, at nearly dawn, something clicked. I could suddenly see it—the crossed wire. I had to do a quiet little dance, for in that moment I was indeed the happy genius of my household.
“You all right?” Robby asked, waking.
“Yes, sir.”
“Figured it out, didn’t you?”
“Yes, sir.” I was still smiling.
“Figured you would.”
I wanted to wake up the cellblock and send the news two cells down to John, but in the dead of night I decided that ruckus would not be welcomed by the others. So I tried to go to sleep.
“Here’s the thing,” I said. John had come in, and, together with Robby, he and I were ready to make our way across the compound to the recreation yard.
“Once you were indicted by the grand jury, the game had started,” I said as we walked. “An indictment begins formal proceedings, where the State has taken sides against you, and the world becomes a courtroom. Their team can only deal with your team in a very fair and formalized way. Your right to counsel in a formal proceeding is different from your right to counsel if a cop tackles you on the street, and it comes from an entirely different part of the Bill of Rights.”
“Keep going,” John said.
“Let’s say a guy driving a car like yours just held up a liquor store, and a cop sees you and pulls you over—”
“Hey, Shon, they are playing Kid A on the yard,” called out Paul, one of my inmate buddies, who happened to be passing by. The inmates would sometimes ask the guards to play requests over the PA system in the yard. Paul had requested Radiohead, which was unusual in a place that preferred rap and metal music.
“Cool, but we’re headed to work out.”
“All right, I’ll catch you later.”
Robby, John, and I were halfway across the compound. It was during the middle of a ten-minute move, so everyone was out talking to their homeboys housed in different units.
“Anyway, where was I? Oh yeah, so a cop pulls you over and he sees a six-pack of beer and a wad of money on the front seat. He asks you to step out. Maybe he sees part of a pistol sticking out from under your seat. He has you standing in back of the car, waiting for his backup. He will probably arrest you, but until his backup arrives he decides not to ask you any questions. Does he have to read you your Miranda rights? Probably not, at least not until he announces the arrest and cuffs you. But if you blurt out some confession right after your arrest, a judge would probably not think you had been cheated out of your Miranda rights. In your case, maybe it was an interrogation or maybe it wasn’t—the way they just put accusations out there and waited for you to comment. Let’s say they didn’t owe you Miranda yet. Let’s give them that.”
John’s brows scrunched up. So far I hadn’t provided any hope. We made it to the recreation yard and walked to the track for a warm-up lap. The Italians were rolling ceramic balls on the bocce court.
“But your situation was different than the liquor store situation. You had, essentially, already been arrested and cuffed by the grand jury indictment. You’d been already charged with a crime by the State, even before the cops broke in on you. It’s a Sixth Amendment situation, not a Fifth.”
“Well, what’s the Sixth say?” Robby asked. Now he was curious.
“The Sixth is the right to counsel once proceedings are under way, like in a trial. Let’s say you’re in the middle of a trial. The prosecutor cannot meet you in the parking lot and try to start a conversation to bait you into spilling the beans, can he?”
“No,” John said.
“If the prosecutor tried something like that, the judge would toss out the confession and possibly the case. But what if the prosecutor instead sends a few cops to hang out with you at your house to see if you spill anything? That’s the same thing, John, and that’s what they did. And nobody got that. They messed up. The critical difference was that you’d already been indicted.”
I looked at them to see if they were following this. I needed to explain it in a way that everyone could understand, because until you can orally drive home your argument, you can’t write it well.
Robby and John nodded, but I could see it wasn’t quite sticking, and the argument had to be instantly understandable if it was going to succeed. So I looked for different ways to approach it.
“Think of everything after the indictment as happening in a courtroom,” I continued. “You have a right to a fair and orderly jury trial. That’s the Sixth. The courts protect that Sixth Amendment right more diligently than a simple Miranda violation. Under the Sixth, the courts have said that the State cannot ‘deliberately elicit information’ without Miranda warnings being issued. Under the Fifth, they say you can’t be interrogated without waiving your Miranda. Elicitation and interrogation
are not the same thing, and the courts have said so. The Eighth Circuit said you weren’t interrogated at your home. They were right. But because you had been indicted and the trial had effectively started, the standard should have been the elicitation of information. They used the wrong standard. They were wrong.”
“I think I get it,” said John. “But are you sure it isn’t all too technical, Shon? Is this really something? I mean, is it too academic for them to bother about?”
“No, John, it’s real and it’s simple. The court of appeals applied the Fifth Amendment standard, which is interrogation, when they should have applied the Sixth Amendment standard, which is deliberate elicitation. It’s just that simple. I’m a hundred percent sure how to do this now.”
He was reeling.
“But downtown, they did give me my Miranda, and then I told them everything again.”
“Oh, you’re screwed,” Robby said, laughing.
“Shut up,” John shouted.
“Well, there’s this other thing for that,” I said. “It’s called the fruit of the poisonous tree doctrine. If the first confession was bogus, so is the second confession, unless some intervening act has occurred that dissipates the taint of the illegally obtained confession.” I was surprised to hear myself talking like that.
“What’s an intervening act?” John asked.
“A number of different things can qualify, including the time that passes between confessions and whether Miranda warnings were issued.”
“But they did give me Miranda at the jail.”
“I know, and under the Miranda cases alone, that would be the end of the matter. The courts would say that the second confession can be admitted.”
John was showing confusion again.
“The great thing is that the Supreme Court, unlike the lower courts, has never faced a case quite like yours where the first confession was not just a Miranda violation but a Sixth Amendment constitutional violation. The Court treats constitutional claims differently, and based on their previous decisions, the fact that the police read you Miranda warnings at the jail might not matter.”
Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption Page 13