“I’m going to play that card being pretty, white, and cute, braid my hair and cry and all.”
The defense team for accused NSA leaker Reality Winner have filed a motion to have her statements to FBI agents prior to her arrest suppressed. When the Federal Bureau of Investigations executed a search warrant on the home of Ms. Winner, she admitted to illegally leaking secret government documents to an online news organization, with the full knowledge that her actions were illegal and could cause serious harm to the United States of America.
During Winner’s bail hearing in June, prosecutors played audio from phone calls between Winner and her family members where she stated, “I’m going to play that card being pretty, white, and cute, braid my hair and cry and all.” She also asked her mother to “play up” the angle that Winner’s safety was at risk in jail. In a semi-ironic twist, her own words helped ensure that she was denied bail. Winner’s defense team is now trying to suppress what their client said to federal agents, as these words could quite likely take away her freedom for a much longer time than what she will spend awaiting her trial.
The defense team’s argument revolves around their claims that Winner was never read her Miranda Rights before being questioned by law enforcement officers. They are not denying that their client admitted to both committing the crime and being completely aware that her actions were both illegal and potentially damaging to national security.
The defense claims that while Winner had not been arrested when she made her statements, she had “every reason” to believe she was in their custody when she was being asked questions. In their motion to have all statements made to the FBI suppressed, her attorneys wrote, “Winner was never told she was free to leave, nor was she advised as to her arrest status. Indeed, when she specifically asked whether she was under arrest, the agents told her they did not know the answer to that ‘yet.’”
For the first time, Winner described in a written statement what happened to her when the FBI raided her home and she was arrested. She said that when the FBI arrived at her home with a search warrant, they “pressured” her into consenting to an interview. In a very telling statement, she said that “During the entirety of my encounter with law enforcement on June 3, 2017, prior to being arrested, I was never provided any Miranda warnings.”
There is no duty to warn when law enforcement is not conducting a custodial interrogation.
There are two circumstances that “trigger” the Miranda requisites: custody and interrogation. Custody is defined as formal arrest (which Winner acknowledges she was not under) or the deprivation of freedom to an extent associated with formal arrest. Then, any questioning would be considered a custodial interrogation, which requires that the suspect be given their “Miranda Rights.”
There is no duty to warn when law enforcement is not conducting a custodial interrogation. The United States Constitution does not require that a suspect be advised of their Miranda Rights during the arrest procedure or as part of being a suspect in an investigation. In order to win this argument, Winner’s defense team will have to prove that Winner believed she was under “full custodial arrest” before she answered the FBI’s questions.
The prosecution has yet to respond to the defense’s motion and the judge has not issued a ruling. However, Judge Epps did agree to postpone Winner’s trial, which had been scheduled to begin next month. The trial was moved to March, in order for the newest members of the defense team to be able to obtain the national security clearances required for them to review classified documents related to the case.
If convicted of illegally retaining and transmitting national defense information, Winner could face up to ten years in prison; she entered a plea of not guilty at her first court appearance in June.
