The Author

Mr. Stuart’s publishing career began as an editor of the Arizona Law Review while attending the University of Arizona College of Law (J.D., 1967). He wrote scores of legal appellate briefs, law review articles, and monographs on legal advocacy and ethics during his thirty years as a partner in one of Arizona’s largest law firms, Jennings, Strouss and Salmon. His first legal textbook, The Ethical Trial Lawyer (Arizona State Bar, 1994), was followed by a national treatise, Ethical Litigation, in 1998 (Lexis-Nexis Publishing Company). Mr. Stuart served for ten years as chair of the Arizona State Bar’s Committee on Rules of Professional Conduct and retains an active role in all aspects of lawyer and judicial discipline and regulation.

He is a founding fellow of the Arizona Bar Foundation and an elected member of the American Board of Trial Advocates, and he is listed in numerous reference works, including Who’s Who in American Law, Martindale-Hubbell’s Premier American Lawyers, and The Best Lawyers in America. Mr. Stuart tried more than one hundred jury cases to a conclusion in several states and federal jurisdictions. He is a frequent lecturer and a faculty member at the National Institute for Trial Advocacy and the Arizona College of Trial Advocacy. He teaches ethics, trial practice, and creative writing as an adjunct law professor at the University Of Arizona’s James E. Rogers College of Law and at the Arizona State University College of Law.

If Cicero was right and gratitude is the mother of all virtues, then this fully warned confession of appreciation will surely pave my path with rose petals.

This book is about the instinct to confess tempered by the knowledge that you have the right to remain silent. I am deeply grateful for the unwarned admissions of hundreds of people not named in the book but whose thoughts and anecdotes are secreted in every chapter. There is no way to prioritize the generosity of my friends and colleagues or to apologize to those whose names are lost in my research files. That said I will start at the beginning.

The late John P. Frank was the first to encourage the writing of this book. His passing three years later was felt by thousands. My most fervent wish was to see him with this book in his generous hands. He was central to the decision itself, the debate surrounding it, and many of the books it spawned. This one would not have been written without his personal approval; his generous contributions of time, energy, and perspective; and his never-fading encouragement along the way. In many ways, this was John’s book to write but he insisted that I could do it in a way he could not. I can only hope he was right.

A great many judges, lawyers, cops, citizens, and suspects gave great color to the big picture and shaded the gray-on-gray world of procedural rights and constitutional litigation. If the book seems authentic and grounded it is because they were insistent that it be so. They curbed my impatience, demanded forbearance, shared their insight, and warned of quicksand and bottomless quagmires of inconsistency. Thanks to Chuck Ares, Peter Baird, Paul Bender, Craig Blakey, Tom Brooks, Carroll Cooley, Bob Corcoran, John Dowd, Paul Fish, Craig Futterman, Joe Howe, Bob Jensen, Chris Johns, Mike Kimerer, Barry Kroll, Jon Kyl, Fred Martone, Tom Mauet, Craig Mehrens, Jim Moeller, Gary Nelson, Ron Quaife, Chuck Roush, Mary Schroeder, Mara Siegel, Barry Silverman, Bob Storrs, Tom Thinnes, Dick Treon, Larry Turoff, Paul Ulrich, and Warren Wolfson.

I am especially grateful to Craig Mehrens for his patience as he labored to give me a soupçon of the subtlety inherent in the life of a criminal defense specialist.

Writers, editors, scriveners, and criticasters worked feverishly with me, and often on me, to make this a good read, to instill plausibility, and to explain the disingenuous. They include Marianne Alcorn, Craig Blakey, Tom Davison, Paul Fish, Dave Knopp, Katie Kallsted, Mary Rodarte, Al Schroeder, Dean Smith, Kathleen Stuart, and Susan Turngate. They helped me find my voice, overlooked my grammar, searched for active verbs, and deep-sixed many an inapt metaphor.

Three very talented people read every line and every page many times. They are the quid pro quo of the writing itself. Without Kathleen Gilbert’spolished eye over every line and word, this manuscript would likely not have passed academic muster. Without Dan Thrapp’s experienced and penetrating look at structure, form, content, style, and pace, this manuscript would read like your run-of-the-court appellate opinion. Special gratitude must go to Christine Szuter. Without her encouragement, even before the first word of text came into being, this book would have remained a fantasy

Interviewing, researching, writing, editing and rewriting the book seemed complete with the official release of the book in October of 2004.  But it was not complete.  There remained the large task of telling the story in context and finding the book’s intended audience.  This could not have been done with the help of Kathryn Conrad, Kristen Hagenbuckle, Jennifer Pinkerton, Peter Handel, Kathy Hawkes-Smith, and Christine Wilkerson and a truly world class law firm, Lewis and Roca, LLP.

The Story of America’s Right to Remain Silent, in its analog form, needs a virtual reality as well.  This web site is the product of long hours and special insight into graphical display of the story on the Internet.  The credit for the “fit and feel” of this website goes to the multi-talented Mary Garcia.

While I have made every effort to accurately state both fact and law, this book is nevertheless laced with opinions about Miranda’s legal and social underpinnings and its cultural and political legacy. Except as specifically noted, the opinions and attitudes are entirely mine. Some readers might be puzzled as to what qualifications a civil trial lawyer has to write a book dealing with constitutional litigation and America’s love-hate relationship with the Fifth Amendment and its expansive interpretation by the Warren Court. The answer lies in remembering the comic who wanted to play Hamlet. A great many lawyers are frustrated writers; as far as I know, I am the only writer who is a frustrated constitutional litigator.

To close on my opening note, without John Frank’s good humor and eternal optimism about the project, I might still be researching and exercising my right to remain silent.

GARY L. STUART

Lawyer
Phoenix, Arizona

Education:
  • St. Michaels College, Santa Fe, NM, 1961-62
  • University of Arizona, Karl Eller College of Business, BS, 1965.
  • University of Arizona, James E. Rogers College of Law, JD, 1967.
Academic Honors:
  • Tucson Title Company Scholar–1963
  • Abner S. Liscomb Scholar—1964
  • Moot Court Board—1966
  • Editor, Arizona Law Review—1967
Employment:
  • Jennings, Strouss, Salmon & Trask—Associate-1967-1971.
  • Jennings, Strouss & Salmon—Partner-1971-1998.
  • Gary L. Stuart, P.C.—1998 to date.
  • Keyed Communications, L.L.C. President, 1998 to date
  • Arizona Board of Regents, 2000 to date
Professional and Community Affiliations:
  • American Bar Association (1967 to date)
  • American Board of Trial Advocates (President, 1986)
  • American Society of Law and Medicine (1975 to 2000)
  • Arizona Association of Defense Counsel (1969 to 1998)
  • Arizona Bar Foundation (Founding Fellow)
  • Arizona Board of Directors Community Colleges of Arizona (2002)
  • Arizona Board of Legal Specialization (Board and Co-Chair)
  • Arizona Board of Regents (Member and President 2003)
  • Arizona College of Trial Advocacy (1982 to 2000)
  • Arizona Community Legal Services, Inc. (President, 1996)
  • Arizona Science & Technology Enterprises, LLC (Director, 2003)
  • Arizona State Bar Association (1967 to date)
  • Arizona State Bar Committee on Professional Ethics (Chair 1976-86)
  • Arizona State University Law School Board of Trustees (1989-94)
  • Association of Professional Responsibility Lawyers (1996 to 2000)
  • Defense Research Institute (1974 to 1998)
  • Keyed Communications, LLC, President and Bd. Chairman (1998 to date)
  • Maricopa County Bar Association (1967 to date)
  • Moon Valley Homeowners Association (President, 1985)
  • National Institute of Trial Advocacy (1978 to date)
  • Phi Alpha Delta Legal Fraternity (President, 1967)
  • Phoenix Silent Witness Program, Inc. (President, 1986)
  • Sandra Day O’Connor Inn of Court (Charter Member and Master of The Bench—1988 to date)
  • Translational Genomics Institute (T-Gen)-Board of Directors (2003)
  • University of Arizona College of Law Board of Visitors (1983 to 1988)
  • Walking Free Foundation, Inc. (President, 1990)
Teaching Faculties:
  • Arizona College of Trial Advocacy—Senior Faculty
  • Arizona State University College of Law, Adjunct Faculty
  • National Institute of Trial Advocacy—National Faculty
  • NITA-Lectures—Cal. Western College of Law—Loyola College of Law; Univ. of New Mexico College of Law; University of Colorado College of Law—Denver University College of Law; University of Houston College of Law.
  • University of Arizona, James E. Rogers College of Law, Adjunct Faculty
Trial and Appellate Experience:
  • Lead counsel in approximately 100 jury trials in five states
  • Lead counsel in approximately 30 state and federal appeals
  • Lead counsel in approximately 500 bench trials, administrative hearings, arbitrations, and mediations
Court Admissions:
  • Arizona Supreme Court, 1967
  • United States District Court for Arizona, 1967
  • United Stated Court of Appeals for the Ninth Circuit, 1969
  • United States Court of Appeals for the Tenth Circuit, 1971
  • United States Supreme Court, 1973
  • United States Tax Court, 1976
  • United States Court of Appeals for the Federal Circuit, 1990
Appointments and Nominations:
  • Appointed as Independent Counsel to Arizona House of Representatives (AzScam Investigation and Prosecution, 1991)
  • Appointed as Independent Counsel to City of Mesa, 1998
  • Appointed to Arizona Board of Regents (eight-year term 2000-2008)
  • Appointed to State Board of Directors-Arizona Community Colleges
  • Certified Trial Specialist—Arizona Board of Legal Specialization (1989-1999)
  • Named Lawyer of the Year for “Outstanding Leadership and Contribution” Arizona State Bar Association (1996)
  • Nominated by non-partisan judicial nominating committee to Arizona Supreme Court in 1992 and 1994
Professional Recognition and Honors:
  • Arizona Bar Foundation Founding Fellow
  • American Board of Trial Advocates (Senior Advocate)
  • Marquis’ Who’s Who In American Law (First Edition)
  • Martindale-Hubbell A-V Rating
  • Martindale-Hubbell’s Premier American Lawyers
  • Woodward/White’s Best Lawyers In America
  • Prentice Hall’s Directory of Litigation Attorneys
  • Maricopa County Superior Court—Judge Pro Tempore
  • Arizona Court of Appeals—Judge Pro Tempore
  • National Institute of Trial Advocates—Distinguished Faculty Member
  • Western Writers of America—Fellowship—“The Gallup 14”
Current Publishing Contracts:
  • Arizona State Bar Association
  • Lexis-Nexis Publishing Company
  • Lois Law Publishing Company
  • University of New Mexico Press
  • University of Arizona Press

Publication Credits Gary L. Stuart 1966 to date

 

“Restricted Title of Guest Statute Prevents Release of Non-Owner Driver From Liability to Passengers for Ordinary Negligence” Arizona Law Review
Vol. 7, Number 2, page 341, Spring 1966
1966
“Contributions To The Profession” Arizona Advocate
Vol 1, No. 2, page 2 March 1967
1967
“The State of Our Ethics” Arizona Bar Journal, Vol. 14, No. 3, page 6, October 1978 1978
“New Supreme Court Changes in Lawyer Advertising” Arizona Bar Journal
Vol. 15, No. 3, page 44, October 1979
1979
“Product Liability Litigation” Practicing Law Institute
Chicago Illinois
6/8/79
1979
“Product Liability Issues” Practicing Law Institute
Phoenix, AZ
Winter, 1980
1980-82-84
“Law For Legal Secretaries and Paralegals” Law Seminars Inc
Phoenix, AZ
5/12/84
1984
“Confidentiality, Compliance and Candor” Arizona Bar Journal
Vol. 20, No. 4, page 26 December 1985
1985
“Ethical Responsibility for Managing Partners and Supervisory Lawyers” Jennings, Strouss and Salmon
Phoenix, AZ
1/24/85
1985
“Insurance Litigation” Defense Research Institute
Phoenix, AZ
Spring 1986
1986
“The Zealous Advocate In Court” ABA Showcase Presentation, National Convention
San Francisco, CA
August, 1987
1987
“Motor Vehicle Litigation” Defense Research Institute
Phoenix, AZ
Fall 1988
1988
“Medical Staff Credentialing” The Journal for the Expert Witness, Trial Attorney and Trial Judge—Medical Negligence
Issue IV, page 26
Fall 1989
1989
“Advanced Vehicle Collision Issues” ABA Litigation and Insurance Section National Video Program, Washington DC
March 1989
1989
“The Ethical Pitfalls of Trial Practice” American Board of Trial Practice—Fall Convention-Sedona Arizona—10/20/90 1990
“The Professional Responsibilities of In-House Counsel” Jennings, Strouss & Salmon
3/22/1990
1990
“The Ethics of Opening Statements” Arizona College of Trial Advocacy
Tucson, AZ
August 1991
1991
“For The Wrong That Needs Resistance—The Lessons of AzScam” Arizona Attorney
Vol. 28, Number 3, Pg 9
November 1991
1991
“Ethics in Practice” Maricopa County Bar Association
Phoenix, AZ
10/18/1991
1991
“Paralegal Ethics” Arizona Paralegal Association
Phoenix AZ
11/6/1992
1992
“Ethical Preparation of Witnesses” Arizona Trial College
Tucson AZ
August 1992
1992
“Professional Ethics for Corporate Lawyers” Jennings, Strouss & Salmon
6/16/93
1993
“Setting and Collecting Attorney’s Fees” State Bar of Arizona, CLE by the Sea
7/20/1994
1994
“Reasonable Fees and Costs in The Age of Computers—An Ethical Dilemma” American College of Mortgage Attorneys
The Cloister, Sea Island, GA
11/11/94
1994
“The Ethical Trial Lawyer” 1st Edition—Hard Cover, 521 pages
State Bar of Arizona November, 1994
1994
“Courtroom Ethics” Lecture Series at Arizona State University College of Law-1994-2002 1994
“The Ethics of Preservation of Physical Evidence” Arizona Trial College
Tucson AZ
August 1995
1995
“Ethical Dilemmas Faced In Jury Trials” State Bar of Arizona—CLE by the Sea
San Diego CA
7/12/95
1995
“Out of the Frying Pan—Hot Ethics Topics” Maricopa County Office of the Public Defender
Phoenix, AZ
3/10/1995
1995
“The Ethics of Closing Arguments” Arizona Association of Defense Counsel
Phoenix, AZ
3/16/95
1995
“Ethics and O.J.” CBS—Channel 10, Televised Panel—Professionalism for Trial Attorneys
10/4/95
1995
“Ethics and Depositions” Annual Lecture Series—National Institute of Trial Advocacy—San Diego California, 1995-2000 1995
“Ethics For Tort Lawyers” Maricopa County Bar Association
Phoenix AZ
2/7/95
1995
“Whatever Happened To The Law?” St. Thomas Moore Society Annual Dinner Speech, Phoenix AZ
6/15/95
1995
“How Can You Lose With The Truth” ABA Journal—Section of Litigation
Vol. 22, Number 3, Page 14
Spring, 1996
1996
“An Ethical Afternoon At The Movies” Dealing with Perjury Denver Law School Stars CLE Program
Denver CO
9/17/96
1996
“Ethics and Civil Litigation” Maricopa County Bar Association, Phoenix, AZ 6/18/96 1996
“Bench v. Bar” Arizona Judicial Conference—Plenary Session—Tucson, AZ 6/5/96 1996
“Bench v. Bar—Round One” State Bar of Arizona—CLE by The Sea
San Diego CA
7/20/96
1996
“The Ethics of Civil Litigation” Maricopa County Bar Association
Phoenix, AZ
6/18/96
1996
“Legends of Litigation Lecture” Maricopa County Bar Association
Phoenix AZ
3/7/96
1996
“You’ll Know When There’s Something Doing” Arizona Workers Compensation Annual Conference
Flagstaff AZ
9/26/96
1996
“An Ethical Afternoon At the Movies” Jury Presentation Lexis-Nexis CLE for Colorado Lawyers University of Denver Law School
September 1996
1996
“An Ethical Morning At the Movies” Opening and Closing to a Jury State Bar of New Mexico
Farmington, NM
6/26/97
1997
“The Ethics of Theory Formulation” Arizona College of Trial Advocacy
Tucson, AZ
August 1997
1997
“An Ethical Morning At the Movies” The Unique Duties of Prosecutors City of Phoenix Law Department Lecture Series
5/1/1997
1997
“Rambo Bites The Dust: Current Trends in Deposition Ethics” The Journal of the Legal Profession, The University of Alabama School of Law, Volume 22, page 103, 1997 1997
“The Duty of Confidentiality” State Bar of Arizona
Phoenix and Tucson AZ
December 3 and 4, 1997
1997
“The Ethics of Trial Advocacy” Witness Preparation Arizona College of Trial Advocacy
Tucson, AZ
August 1997
1997
“An Ethical Morning At The Movies” Dealing with Untruthful Clients State Bar of New Mexico CLE
9/26/97
1997
“Ethics for New Lawyers” Arizona State Bar Convention
Phoenix AZ
June, 1997
1997
“An Ethical Afternoon at the Movies” Jennings, Strouss & Salmon—Ethics for Client Lecture Series
10/30/97
1997
“An Ethical Evening At the Movies” Professionalism and Ethics Denver University Law Star
Denver, CO
9/23/97
1997
“An Ethical Afternoon At The Movies” Defending Complex Litigation in Business Davis, Graham & Stubbs
Denver, CO
9/24/97
1997
“Defending a High-Dollar Damage Case” Maricopa County Bar Association
Phoenix, AZ
1/30/97
1997
“Ethics in United States District Courts” Ninth Circuit Judicial Conference
Tucson AZ
1/28/97
1997
“A New Oath Of Lawyering” Lexis-Nexis Exchange, On-line Lecture Series
September 1997
1997
“E-mail and Ethical Rule 1.6” Lexis-Nexis Exchange, On-line Lecture Series
October 1997
1997
“Attorney Client Privilege and the Whitewater Investigation” Lexis-Nexis Exchange, On-line Lecture Series
April, 1997
1997
“The Ethics of Arguments” State Bar of Arizona, CLE by the Sea
San Diego CA
7/22/98
1998
“The Ethics of Arguments” Updated State Bar of Arizona
Scottsdale AZ
12/8/98
1998
“Judicial Ethics” Arizona Judicial Conference, Phoenix AZ
10/30/98
1998
“Prosecutorial Ethics” City of Phoenix Law Department
Phoenix AZ
4/23/98
1998
“Ethical Litigation” On-Line Electronic Book—Lexis Nexis, Inc. Dayton Ohio, June 1998 1998
“Selected Chapters From Ethical Depositions” Co-Authored with Prof. Janeen Kerper, Pacific Deposition Program
NITA
3/19/98
1998
“Rambo In Ruins” Lexis-Nexis Exchange, On-line Lecture Series
April 1998
1998
“Truthful Questions” Lexis-Nexis Exchange, On-line Lecture Series
May 1998
1998
“Fees, Costs and Computers” Lexis-Nexis Exchange, On-line Lecture Series
March, 1998
1998
“Ethical Arguments” Lexis-Nexis Exchange, On-line Lecture Series
May 1998
1998
“Conflicts of Interest” State Bar of Arizona
Phoenix AZ
1/5/99
1999
“Conflicts of Interest” CLE By The Sea
San Diego Ca
7/14/99
1999
“Conflicts of Interest” CLE International
Denver CO
Land Use Conference, 12/6/99
1999
“An Ethical Afternoon at the Movies” Practice in Rural Courts Coconino County Bar Association, Flagstaff AZ
11/2/99
1999
“The Best of The Best” New Mexico Trial Lawyers Assoc.
Albuquerque, NM
12/21/99
1999
“Stuart on Starr” Arizona RepublicJanuary 1999 1999
“Why Are Lawyers So Argumentative?” State Bar of Arizona CLE
Summer, 1999
1999
“Whatever Happened To Atticus Finch” State Bar of Arizona
Phoenix AZ
12/8/00
2000
“Who Wants To Be A Lawyer—Professional Discipline” CLE by the Sea
San Diego CA
7/19/2000
2000
“An Ethical Morning At The Movies” New Mexico State Bar Association
Ruidoso, NM
10/5/00
2000
“The Attorney Client Privilege” NSBA Council of School Attorneys, National Conference, Litchfield Park AZ
10/14/2000
2000
“The Gallup 14”, a novel 1st Edition—Hardcover, 332 pages
UNM Press, February 2000
2000
“Courtroom Ethics” Lecture Series at University of Arizona College of Law-2000-2002 2000
“An Ethical Morning At the Movies” The New Cases and the New Rules Maricopa County Bar Association
Phoenix AZ
6/27/01
2001
“Politics And The Writer” KAET-Arizona State University-TV Panel of Historical Fiction Writers
February, 2001
2001
“Law Firm Ethics” Private Seminar
Jones, Skelton & Hocuhli
Sep. 26, 2002
2002
“Ethical Writing for Lawyers” State Bar of Arizona, CLE
Phoenix, AZ
October 25, 2002
2002
“The Galapagos—A New Baseline—Travelogue” Private publication-Presented to biology faculty at Northern Arizona University
May 2002
2002
Memorandum Opinions Arizona Court of Appeals(two non-published opinions) 1994-1996
Ethics Opinions Arizona State Committee on Professional Responsibility (approximately 35 published opinions) 1972-1995
“Miranda—The Story of America’s Right to Remain Silent” University of Arizona Press, Hardcover, 213 pages. 2004