On June 1, the U.S. Supreme Court finally dealt Miranda a death blow. Elena Kagan, Obama's nominee for the Supreme Court, was complicit in Miranda's demise. Her participation may give some insight into her views on the rights of criminal defendants, and her understanding of how the law affects ordinary people.
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.
Mark Osler: Prayer, Confession and the Police
The police are not always right. As a group, they are not the nicest, most honest or the brightest people.
As this country slides into a police state, people have forgotten how things were in the countries from which our founding fathers migrated.
The Rule of Law does not mean the Rule of Law Enforcement. The Rule of Law means that we are governed by written laws that society has agreed upon INSTEAD of by kings, nobles, warlords and other powerful people who imposed their will on the populace. It is the rule of the WRITTEN law over the will of the individual with power.
We are heading fast toward becoming a police state as we give up our principles (such as guilty until proven innocent) because we are afraid and believe the police can protect us from everything. We are giving power to the police somewhat similiar to that of nobles, etc.
The police are becoming the powerful from whom we need the protection of the written law.
That is the most disturbing part to me. If you don't say the right words in the exact order they can decide you don't really mean it. I don't like coddling prisoners, but I also don't like railroading people for not knowing the magic passwords.
It's not a question of how much influence she had right now. It's a question of her Amicus brief revealing her views, views which would wield a great deal of influence were she already on the court.
This is now the second time (the previous being a DOMA case) in which the Obama administration seems be filing Amicus briefs defending laws and practices that he previously claimed to oppose.
What is it with Conservatives? They clamor all day that the government is bad and is incapable of doing anything correctly. But suddenly government employees, such as cops, prosecutors and judges, are virtually infallible when they are arresting, prosecuting and executing people. Giving the police more power to extract a confession from a suspect is a step closer to a police state. Where are the teabagger cries of tyranny now?
Just go ask Seymour Hersh about blabbing about things in public the government doesn't like. Why do you think he stopped talking about those Abu Ghraib toture photos that were never released to the public?
But the real matter here isn't "silence." It's ... ummm ... torturing prisoners. Oh, pardon me, "interrogating."
And if you don't speak the language well enough to say "just the right words ..." ¿Sabe?
It seems to me that in many ways we are forgetting, or at least not regarding, the principles that founded the basic freedoms that our country's founders put in place for all of us. As George Lucas put it, through his character of Queen Amadala: "So this is how freedom dies: to thunderous applause."
You have the right to "remain" silent.
Now, when (by definition) do you cease to "remain" silent? When you "say" anything at all. (Presumably the Miranda wording was aimed at someone who had not yet spoken a word.)
The moment you open your mouth, even to say that you wish to exercise your right to remain silent ... you obviously no longer "remain" silent.
But the Supreme Court of the United States, in its new role as "privy council" and de-facto lawmaker-supreme, knows that the King does not have to always be consistent in his royal edicts.
I think that we need to be =very= aware of just how rapidly, and in how many ways, the system of Government that we were taught growing up has changed. Congress may debate a five-thousand-page piece of legislation endlessly, and the President may or may not approve it ("all or nothing"), BUT ... the Supreme Court makes law. And, by declaring that it possesses the sovereign(!) right to "interpret" the Constitution, it de facto places itself above the very body of law that caused its own existence.
Tyranny will swiftly and inevitably follow.
And you know this how? My understanding is that the Solicitor General takes orders from the President. Which probably means from his Chief of Staff. And, I suppose, from the Attorney General. It wouldn't surprise me to find out that the Speaker of the House and the Senate Majority Leader have some influence there, too. So what basis does Mr. Weisselberg have for making this assertion? Then, too, there's the point that has been made, that the arguments she presents to the Court do not represent her personal views, but rather her efforts to fulfill her duty to her client, the Government of the United States.
I have no confidence in Kagan due to the fact that she has never once been in a position to put her beliefs and judicial philosophy on the line in a way that matters. I was particularly alarmed by her agreement with Senator Graham regarding the misplaced and erroneous interpretation of "battlefield law" when it comes to the indefinite detention of people suspected of crimes. This latest revelation is of no help to redeeming her in that regard, and doesn't give me any confidence that she is suitable for the Supreme Court.
What you do have is the right to not incriminate yourself and that law is in place to preclude admissions extracted under torture. Ever hear of King Henry VIII?
Damn - you have a right not to incriminate yourself wither you were reminded about it or not - it’s still a right you have. Miranda is simply a cover given to the police to insure that they are not accused of extracting a torture confession. Miranda was never for the accused it was always for the police.
How hard was that?
Are we are the only ones?
The Court missed an opportunity to improve the wording of the Miranda warning, and instead opted to encourage police interrogations of the unwitting.
I really cannot fathom why conservatives think it doesn't matter. Apparently they just believe that it can't happen to them, and it's a good thing to keep the underclasses down.
A right exists inherently in us it isn't bestowed by the constitution it wasn't granted by us in the constitution. TO argue we must affirmitvely claim a right is judicial activism.