2013-05-26T03:04:54-04:00 Charles Weisselberg http://www.huffingtonpost.com/author/index.php?author=charles-weisselberg Copyright 2008, HuffingtonPost.com, Inc. HuffingtonPost Blogger Feed for Charles Weisselberg Good old fashioned elbow grease. tag:www.huffingtonpost.com,2010:/theblog//3.596447 2010-06-01T14:45:30-04:00 2011-05-25T16:40:24-04:00

Charles Weisselberg http://www.huffingtonpost.com/charles-weisselberg/
In Berghuis v. Thompkins, the decision announced today, the Court ruled 5-4 that a suspect has to speak in order to assert the right to remain silent. Van Chester Thompkins was given his Miranda warnings and remained quiet for almost 3 hours. During that time, officers continued the interrogation and Thompkins eventually made an admission. A federal court found that he had asserted his right to remain silent by actually remaining silent, and that officers should have ended the questioning. The Supreme Court reversed.

The majority said that if officers give Miranda warnings to a suspect, they may begin questioning and continue to question unless the person clearly and unambiguously says he wants to remain silent or wants a lawyer. Police do not have to expressly ask a suspect to waive their rights. If the person shows incredible stamina -- like Thompkins -- and manages to remain silent through hours of intense interrogation, he will have "waived" his rights if he eventually caves in to pressure.

And the Court has placed a substantial burden on suspects to invoke their rights with great precision. A number of lower courts applying the clear and unambiguous standard have been quite demanding, finding that statements such as "I think it's about time for me to stop talking" and "I think I would like to talk to a lawyer" are not clear invocations of the right to remain silent or the right to counsel.

The Court's opinion is the most important Miranda decision in a decade. The ruling is breathtaking even to those, like me, who believe that Miranda's safeguards were already eroded. The Court has formally transformed Miranda from a rule aimed at protecting suspects to one that protects police. Miranda's safeguards for suspects are now mostly symbolic. So long as officers give warnings, their interrogation practices will be largely immune from any legal challenge. As the justices have noted in other cases, if warnings are given and a statement is obtained, it is very difficult for a defendant to contend that his admissions were coerced.

Justice Sotomayor wrote a strong dissent in Thompkins. Joined by retiring Justice John Paul Stevens and Justices Breyer and Ginsburg, she explained how the majority opinion rewrites Miranda.

So what was Kagan's role? As Solicitor General, she filed a brief in Berghuis v. Thompkins for the United States as amicus curiae (friend of the Court). The U.S. was not a party in the case since Thompkins had been convicted in state court and it was the State of Michigan that challenged the lower court's ruling. Kagan did not have to enter the fray and take a position, but she decided to do so.

Kagan's brief was even more aggressive than Michigan's. In a 1994 case, Davis v. United States, the justices ruled that if a suspect first waives his rights and then later wants a lawyer, the person has to invoke that right clearly in order to require officers to stop questioning. Kagan's position -- accepted by the majority in Thompkins -- was that Davis should be extended to the right to remain silent and to cases where a person has not already waived his or her rights. By contrast, the State of Michigan sought to win on a narrower ground. We cannot know whether Kagan's arguments convinced the majority to issue such a broad decision. But the Solicitor General, often called the "Tenth Justice," is a very influential player.

What does this case tell us about a Supreme Court with Justice Kagan? Superficially, if Kagan had already replaced Stevens on the Court, the outcome would not have changed. At most, the decision would have been 6-3 and not 5-4. But Kagan's arguments may reveal something else, particularly when contrasted with Sotomayor's dissent.

Kagan's brief shows no understanding of modern police interrogation tactics or that suspects -- who are in a position of powerlessness during an interrogation -- may have difficulty asserting their rights or using precise language to do so. Sotomayor, on the other hand, notes that "criminal suspects often use equivocal or colloquial language in attempting to invoke their right to silence." Her dissent reveals a solid understanding of how the decision will shape police practices. Of course, Sotomayor was a prosecutor and a trial judge. Kagan has no experience on the ground.

In nominating Elena Kagan to the Supreme Court, President Obama said that Kagan has an "understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people..." Perhaps so. But that understanding was not evident in Kagan's work in Thompkins.]]> tag:www.huffingtonpost.com,2010:/theblog//3.476973 2010-02-25T14:42:32-05:00 2011-05-25T15:40:24-04:00

Charles Weisselberg http://www.huffingtonpost.com/charles-weisselberg/
Miranda's theory is simple. Officers use sophisticated tactics during stationhouse interrogations to pressure suspects to confess. To counteract these pressures, police must advise people of their rights to remain silent and talk to an attorney. Suspects must have the chance to decide, before being interrogated, whether to waive their Fifth Amendment privilege against self-incrimination. To ensure a real choice, the Court put the burden on law enforcement to show that suspects have knowingly and voluntarily given up their rights. No waiver, no questioning.

In the Michigan case, Berghuis v. Thompkins, officers gave Van Chester Thompkins the Miranda warnings. But instead of asking if he would give up his rights and speak, police just began interrogating. Thompkins kept largely silent for close to three hours while officers tried different tactics to get him to talk. He eventually succumbed and made a statement. A federal court threw out the statement, finding that Thompkins did not waive his rights. Michigan has appealed.

The case directly challenges Miranda. While the Supreme Court previously said that waivers might sometimes be implied when suspects respond immediately to questions, the Court has never suggested that suspects voluntarily waive their rights simply by caving in to lengthy questioning. A ruling for Michigan would rewrite a key component of Miranda: that people should be allowed to choose between speech and silence before stationhouse interrogations begin in earnest. If suspects are questioned for hours and finally talk, how can any "waiver" be anything but the result of those pressures?

The US Solicitor General is joining Michigan in aggressively attacking Miranda. In 1994, the Court held that if suspects initially waive their rights and agree to talk--but later change their mind and want to see a lawyer--they must say so clearly and affirmatively. The Solicitor General now wants to extend this ruling to the very start of interrogation. Under this approach, there would be no "time out" prior to interrogation for suspects to decide whether to speak. Instead of requiring police to obtain a waiver, suspects would have to stop an interrogation that has already begun. Ironically, people would have to speak in order to claim their right to remain silent.

This position appears more hostile to Miranda than any taken in the Supreme Court by previous Democratic Administrations. In the 1994 case, the Clinton Administration argued only that police should clarify a suspect's ambiguous request for a lawyer. In 2000, Clinton's Justice Department refused to defend a statute that directly challenged Miranda. To signal that the refusal was the carefully-considered position of the entire Justice Department, the Government's brief was signed by the Attorney General in addition to the Solicitor General, which is quite unusual.

In 2004, the Supreme Court decided a case from Missouri where officers deliberately withheld Miranda warnings and obtained a confession. Then police gave the warnings and had the suspect repeat what she said before. The Supreme Court condemned this practice as an end run around Miranda. While the Bush Justice Department backed Missouri, a group of former prosecutors and judges -- including current Attorney General Eric Holder, who was then in private practice, and former FBI Director William S. Sessions -- submitted a brief decrying this technique.

Some people (myself included) think that Miranda already fails to afford meaningful protection to many suspects. If the Court sides with the Justice Department in the current case, that conclusion would be inescapable.

But Berghuis v. Thompkins raises another troubling question. The Justice Department was not required to join in the case; it could have stayed on the sidelines. Why has the Obama Administration jumped in and stuck a fork in Miranda? Perhaps it is simply a misstep by a Solicitor General with no previous law enforcement experience. If, however, this really is the considered position of the Attorney General and the Justice Department, it tells us something more disturbing -- that the Obama Administration does not want to afford suspects a fair chance to remain silent in police custody.

Charles Weisselberg is a Professor of Law at the University of California, Berkeley, School of Law.]]>