Another small step towards getting rid of Miranda all together:
A Michigan man will continue serving a life sentence for murder after the U.S. Supreme Court ruled today that he gave up his rights against self-incrimination because he did not explicitly tell police he wanted to remain silent after his arrest.
***Justice Anthony Kennedy, writing for the majority, said Thompkins could have ended the questioning by telling the police he wanted to invoke his right to remain silent.
In a dissent, Justice Sonia Sotomayor said the decision “turns Miranda upside down.” It’s counterintuitive, she said, to require a suspect to speak in order to exercise the right to remain silent.
When I read this, one of the very first things that came to mind was whether or not Elena Kagan is a lesbian.
mr. whipple
I knew Obama was appointing a closet conservative.
Lolis
But all the true liberals said Sotomayor was against defendant rights because she was a former prosecutor and more conservative than Souter.
Violet
Is “counterintuitive” Justice-speak for “physically impossible”? ‘Cause if you’re speaking, you’re by definition not silent.
Next up for SCOTUS: Unjustly accused individuals should use time machine to change course of events. Otherwise, it’s all their fault.
MattF
Wait a minute. When did “counter-intuitive” become a synonym for “physically impossible”? I suppose I’m missing something here.
satby
Strange how every small step towards totalitarianism seems so reasonable, at least according to the conservatives.
EconWatcher
Never mind our rapidly deteriorating freedoms. What’s up with Al and Tipper?
YellowJournalism
“I’m invoking my right to remain silent” must be the new “I’m not speaking to you” as of now.
slag
The Obama has had several successes over the last year or so, but if I had to pick a favorite, I’d probably go with Sotomayor.
It may be the coverage, but I don’t get the same sense of optimism from the prospect of Kagan on the court that I got from that of Sotomayor.
Comrade Dread
This reaffirms my long standing belief that you should never talk to the police for any reason without a lawyer present.
Doesn’t matter if it’s just some friendly questions or if you’re the Pope. Keep your mouth shut and ask for a lawyer.
Allan
The more important question this morning is, who stole BJ’s text-wrap feature? I’ll close my eyes for a minute, and when I open them, it better be back or you’re all going to be punished.
Punchy
“The defendant must commuincate his commitment to good hygiene by soiling his pants”…. wow, the USSC is in full blown “Fuck you Libs” mode now.
cleek
Heller, Kafka and Orwell walk into a bar…
El Cid
I liked the part about how the accused’s remaining silent was not sufficient enough evidence that he was choosing to remain silent.
I feel like going reading some more Eduardo Galeano.
He once told a story of an officer in the (U.S.-fomented and sponsored, of course) Argentinian right wing dictatorship coming across a soldier standing guard over an empty outdoor bench, and not allowing anyone to sit on it.
He asked the soldier what he was doing. And then why. And the soldier said that he was just relieving the previous guard. And that the bench had been guarded all the way back as far as anyone had remembered, 24 hours a day.
Perplexed, the officer went back and looked through the list of officially recorded orders, and eventually found the original order years and years back, in which the commander had ordered a guard posted next to the bench because it had just been painted, and needed to dry.
And no one questioned the order, ever, until that officer, because no one questions any orders under such a regime.
El Cid
@cleek: And Orwell says, “Ouch!”
scav
well, this is a world where you have to obey anybody that enters your house in the middle of the night with a flashbomb or rappels down on your boat.
nitpicker
Not being a lawyer, I may be misreading this, but doesn’t this actually provide a second way for a suspect to stop an interrogation? In the past, suspects would have to ask for a lawyer, but, if they didn’t, then the police could continue to badger them. Now suspects can simply state their unwillingness to speak and, as I read the ruling, the police have to discontinue questioning.
Isn’t this a good thing?
Belafon (formerly anonevent)
It will be important when the Church police are questioning a man over whether he is gay or not.
YellowJournalism
@Allan: I think it might be certain ads in IE. (I don’t have IE 8.) When I refresh or go back to the main page, the word wrap comes back on sometimes. I notice that the ads have changed. Can’t pinpoint which ad or ads makes the anti-word wrap happen. I’ve resorted to reading BJ in Firefox, which wouldn’t bug me so much if the rest of my links and favorites weren’t on my IE browser.
kommrade reproductive vigor
The plaintiff failed to signal his objection to the random strip search because his clothes weren’t stapled to his body.
zmulls
The facts of the case, and the takeaway from the decision, don’t come together for me.
Apparently, the case involved a guy who was read his Miranda rights, and sat through a three-hour interrogation, mostly remaining silent. Saying “yes” or “no” and mostly not responding. But finally they asked him a question that tripped him up (“Do you pray for forgiveness for shooting those people?”) and he said “Yes.” And he was convicted.
He then claimed that his answer shouldn’t count because he was remaining silent. Since he was remaining silent, they shouldn’t have been asking questions (I’m reading the news accounts and trying to understand his argument).
So, SCOTUS seems to be saying that if you really want them to stop asking questions, you need to say “Hey, I’m invoking my right to remain silent, you shouldn’t ask me anything” — otherwise, the officers can keep asking you stuff, and you still have the right to not answer.
Obviously the news reports only gloss the surface, and I’ll leave it to SCOTUS watchers to say whether or not the Roberts five are taking the thin premise of the case to reinterpret settled law.
But I’m going to want to read more about the case before hitting the “OMG Conservatives” button.
El Cid
@scav: You don’t just have to obey any stormtroopers blowing their way into your home at night or onto your aid boat in international waters.
You have to know in advance properly how to lay down, in what position, what to say to reassure the invading forces, and even then anything which happens to you at best is an inevitable consequence of these crazy mixed up tense moments and at worst your fault for resembling bad people or locations which might have had bad people or having had gossip told about you that you were a bad person.
Just like refugees shouldn’t have been in a UN refugee camp when the Israelis decided to shell them, and then Israel claimed live on BBC news that their problem was that their maps had not been updated, and the BBC anchor pointed out to them that the refugee camp had been there for 2 years and that the Israelis had had RPV’s flying over the camps for months.
Rey
@Econ
Seems as though the Gore’s have decided to separate after 40 yrs of marriage. I’m a Tennessean and proudly cast my vote for Al Gore in 2000, broke my heart when the rest of the state was not as proud as me. Anyhoo, the marriage is over- shit happens.
Jay B.
@Lolis:
No they didn’t. Fuck, even official Balloon Juice commentariat nemesis Greenwald gave her glowing reviews. The self-congratulatory bubble world you guys are building here is really quite amazing.
The difference, of course, is that Sotomayor had a long, long history of legal writing and, naturally, verdicts which people could interpret for themselves and judge her record accordingly. Kagen, in this respect, is obviously far, far different.
cleek
that’s not the way things work here.
here, we hit the button. then we kick it. then we punch it. then we stomp on it. and if it turns out we shouldn’t have hit the button, it’s all good because somebody probably said something funny along the way…
Ash Can
These RW activist justices are asserting that rights don’t exist in and of themselves, that they must be claimed and asserted in order to exist at all. This — among other things, and none of them good — is contrary to the very definition of the word “right.” These guys are more than just your average wingnuts, they’re distressingly effective anti-American saboteurs.
@Allan: Like with the strike-through gremlin, the text wrapping appears OK on Firefox.
scav
@El Cid: ah yes, I should have known the world couldn’t be so simple. So, clearly, the next logical step is that if you don’t explicitly make use of that right to silence thingy that you no longer have to be told about, you have to be able to cite chapter, line and verse the exact legal statute and paragraph exonerating you during your interrogation.
The Other Chuck
@nitpicker:
I think you’re misinterpreting the intent of the decision which is “the powerful can do whatever the fuck they want to the weak, and we’ll shred precedent and the constitution to make that happen”.
Egilsson
Miranda is a prophylactic measure designed to give meaning to the requirements of the 5th (what good are rights if you don’t know what they are or how to obtain them after all). It’s an administrative tool designed by the Court.
At first blush, I don’t really see a problem with this holding.
They read the guy his rights (including “anything you say can and will be used against you…”), he said nothing, they kept talking until he said something highly self-incriminating.
Seems ok to me.
The Moar You Know
Amazing, the number of good Germans on this thread who seem to think this is hunky-dory.
By 2040, asking for Miranda privileges will earn you a bullet to the temple, because that’s the only way we can be sure that you’ll “remain silent”, amirite?
El Cid
@nitpicker: How much you wanna bet that when a case comes before it in which a suspect explicitly (because, I dunno, they’re criminals who read Supreme Court decisions) states he will be remaining silent, and then is prompted to answer a question in a presumably incriminating manner, and the Supes rule that, well, even though he explicitly invoked his right to remain silent, obviously he changed his mind by speaking and waived the right to remain silent?
Violet
Holy crap. Al and Tipper Gore are separating? WTF?
Uloborus
Hmmm. If this guy had been silent for ages, and had been read his Miranda rights… this is a legal technicality. That’s important to understand. It’s not about his individual case – if he got tripped up because he self-incriminated, I’m fine with that. It’s about the legal structure we use to prevent people from being forced to talk. I really don’t know what effect this has on that. The law is a bizarre and intricate creature.
So I’m going to go with ‘Sotomayor thought it was dangerous and unreasonable. The woman knows the law inside and out, and leans liberally. It’s probably pretty bad.’ I’m guessing it sets some kind of ugly precedent that can be exploited elsewhere.
handy
@Jay B.:
It wasn’t that cut-and-dry as I recall it. I remember reading several places concerns about Sotomayor being a reverse Souter, among other things. For instance, her stance on Roe V. Wade appeared unsettled, and people weren’t sure what we were getting.
Brian J
Doesn’t the tool belt she wears all the time answer that question?
Ash Can
@Violet: It must be because he’s fat.
Lurking Canadian
@El Cid: I heard a similar story about a guy who used to stand at attention outside Number 10 Downing St. When the British were reforming their army in the late 19th/early 20th centuries, somebody finally asked this guy what he was doing there.
It turns out that his job, and the job of all the men who’d stood that post through most of the 19th century was to hold the stirrup to help the Duke of Wellington (d. 1852) dismount from his horse.
scav
ok, for those that need a break. Read about the Welsh road sign and e-mail.
homerhk
@jayb. Maybe gg didn’t object to Sonia Sotomayor but here is a quote from The Root:
Nick
@Jay B.:
Well I don’t know about Glenn, his whining tired me out long ago, so I stopped caring what he thinks, but plenty, and I mean plenty, of liberals felt Sotomayor wasn’t acceptable for a range of bullshit reasons from “she was a potential Bush Supreme Court appointee” to “she’s Catholic, OMG THERE GOES ROE!” to “Why couldn’t he pick someone with a real liberal fighting spirit”
handy
@Egilsson:
This is a crap decision. The cops clearly baited him into a pretty weak “confession.” The Supremes should have considered the entire circumstance under which said “confession” was made.
In other news, AG Holder is still deciding whether to pursue criminal charges against the people who brought us “Gulf of Mexico: It was Nice Knowing You.”
El Cid
@scav: You must know everything a lawyer does in order to gain any of your rights as the accused, should authorities be so gracious as to grant you habeas corpus and go through the arduous process of charging you with anything instead of just indefinitely detaining you.
However, your possession of such detailed knowledge of the rights of the accused is sufficient incriminating evidence that you were preparing to commit crimes.
Brian J
@Violet:
Now there’s proof that global climate change is a hoax.
And no, I won’t explain how they are connected. If you can’t figure it out, then you are part of the problem.
SiubhanDuinne
I can’t even joke about Al and Tipper right now (probably will later, though). But right now it just makes me profoundly sad.
Ed Drone
@El Cid:
This is similar to the HUAC and McCarthy Senate committees, where the witness would say, “I respectfully decline to answer under the 5th Amendment,” and then the questions would be innocuous, “Do you know the man to the right, who is your brother?” The resulting answer cannot be “Yes,” because then the 5th Amendment refusal ends (you don’t get to pick and choose which question you answer — answer one and you must answer all).
It made for some interesting TV “back in the day.”
Ed
Comrade Luke
And now we get to spend the next…week?…two weeks? talking about nothing other than the Gore’s divorcing.
I hate our media.
scav
@El Cid: come come, your guilt was a given once you were suspected, let alone taken into custody.
Zifnab
You know, one of my girlfriend’s friends goes to Harvard Law and has actually spent time with Ms Kagan on a number of occasions. And she has it on good authority that Kagan is a) gay and b) not stupid enough to say it.
Either way, it’s becoming increasingly obnoxious watching the Supreme Court erect these annoying “gotcha” clauses in every civil rights decision. I’m reminded of the Bongs Hits for Jesus case, where the first amendment was excepted in the case of mentioning drug paraphernalia. Gotcha! Or the Lily Ledbetter case, where the equal pay clause expired when she didn’t realize her coworkers were getting paid more than her within 90 days of the raise. Oops!
They aren’t ruling on facts or intent. They’re just inventing loopholes in settled law. Talk about your activist judges.
Martin
Who’ll be the first Senator to ask Elena if she wants to turn Miranda upside-down?
Jim, Foolish Literalist
@Jay B.:
Actually, quite a few blog commenters, I can’t remember any bloggers, said that they didn’t trust Sotomayor, and her appointment was a shift to the right.
Brian J
@Zifnab:
It seems like you are right.
Zifnab
@Jim, Foolish Literalist: They said the same thing about Ginsburg under Clinton. I think we’ve been out in the conservative wilderness for so long that a liberal won’t know his brother if he’s staring the guy right in the face. The definition has been so blurred and distorted, it’s almost meaningless. Do you want Noam Chompsky on the bench? How about Al Gore? Are they liberal or conservative?
I’m just imagining the shit fit that would ensue if Obama nominated a David Souter clone. ZOMG! He’s a Bush 41 Nominee! Stealth conservative pick! He’ll shred the Constitution! OBAMA YOU HAVE FAILED US AGAIN!
edmund dantes
However, and this might be because Congress went back and remove the Ledbetter loophole, in the recent firefighter case Scalia said each and every new test reset the clock on their discrimination case.
It was interesting outcome considering where he fell on the Ledbetter case.
flounder
I had always thought that while you may have the right to ask for a lawyer and remain silent, there was absolutely nothing in the Constitution requiring everyone else to remain silent while you are waiting for your lawyer to show up (I’m not saying they should have the right to keep you up browbeating you for 24 hours straight as you are handcuffed in a standing position)?
Why exactly should the cops have to stop asking you questions after you have asked for representation but before they show up?
I mean I was always under the assumption that you had Miranda rights before you were even read Miranda (much to the chagrin of the wingers who think your legal status somehow changes after you are read your Miranda rights). To say that cops can continue asking you questions at any point, while you continue to either answer them or not, just seems to keep the broadest possible interpretation of Miranda possible (i.e. you have the right to remain silent at any and all points).
licensed to kill time
I guess we should all start carrying cards in our wallets printed with the words “I choose to remain silent and I request a lawyer” in case we ever need them.
That, or learn sign language. Though I imagine signing those words would be overturned in court, too, because how the heck are the police supposed to know what you meant by fluttering your fingers at them? “He wanted coffee! Then he confessed!”
kommrade reproductive vigor
People, this blog clearly states Do Not Unwrap Until Festivus.
SiubhanDuinne
@El Cid
@Lurking Canadian
And just to make it a trifecta of “silly tradition” stories, there’s the well-known one of the young bride preparing her first pot roast. She slices off both ends, hubby says “Why are you doing that?” “It’s what my mom always did but I don’t know why.” Calls her mom and asks her, mom says “I don’t know why we do it, but I learned it from your grandmother.” She calls grandma, same thing, learned the technique from *her* mother and has always cut off the ends of the roast before cooking.
So grandma goes to visit her own mom in the nursing home and asks her why she always cut off the meat on each end of the roast. “We were very poor and my only roasting pan was too small, so I had to slice off the ends to make the roast fit.”
mnpundit
The SCOTUS just made obsolete about 2 months of my legal education. It’s not great but at least it will make things a LOT easier for everyone because we have a bright line. Now you just tell people “inform the police you are invoking your Miranda rights and then shut up.”
The problem is that people won’t be informed on this and will think it can be done the old way. Of course, the police will keep trying to trick people to un-invoking the rights like they always have.
QuaintIrene
Really.
Makes me think of that courtroom scene in ‘Legally Blonde’ where she tricks the pool boy into saying he’s gay.
eemom
Splendid! You are beginning to think like a lawyer.
4jkb4ia
(Federer 12, Soderling 1)
Martin
@QuaintIrene: That’s really the great question of our times: Which is the most realistic courtroom drama? Legally Blonde or My Cousin Vinny.
Joey Maloney
@homerhk: how can Democrats be sure Sotomayor will advocate a theory of law that corresponds to liberalism?
Well if you want to be ABSOLUTELY SURE, I recommend using a piece of sharpened rebar to pith her like a biology class frog, then driving a cluster of electrodes through her skull into her cerebral cortex and connecting them via WiMax to controls wielded by the unimpeachable liberals Glenn Greenwald, Al Franken, and the ghost of Ted Kennedy, any two of whom can lock out the third in cases where one strays from the one true liberal doctrine (e.g. Glenn and the Citizens United case).
Quaker in a Basement
Well OK, let’s assume Mr. Tompkins intended to invoke his right to remain silent by…uh yeah, remaining silent.
If he doesn’t tell the police that’s what he’s doing, then how is this supposed to play out? Are the cops required to stop asking questions after one minute of silence? Five? Ten? An hour?
Putting the onus on the cops to figure out the arrestee’s intentions from his silence opens up an awful lot of gray area, doesn’t it? Supreme Court decisions don’t like gray.
It doesn’t seem unduly burdensome to expect the arrestee to say, “I don’t want to talk. I want my lawyer.”
4jkb4ia
AP story has even more damning sentence from Sotomayor opinion: “At the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so. “
Jay B.
@Nick:
That’s a great point in that it’s fact and citation free and relies heavily on your gut feeling. At least someone else had a Dionne quote and “concerns” from a single-issue interest group which, logically, should worry about a Catholic appointment, given that Catholics are supposed to be against the single-issue of that interest group.
Plus, they were at least basing their opinions on what her record showed. Or is that not a legitimate way of judging judges? I know that we should just accept everything that the government says on its face and not try and read about things on our own — it’s easier than thinking, after all — but you gotta hand it to those plucky idiots who still try and do things like “research” to make “informed choices”.
And of course, in the real world, by far the loudest “concerns” over Sotomayor — and virtually all of the opposition — came because she called herself a “wise latina”, had “empathy”, was probably an “affirmative action” case and Jeff Rosen ran an egregious anonymous slam piece based on “whispers” from clerks.
Comrade Javamanphil
@QuaintIrene: Elle Woods would be a good supreme court nominee.
Comrade Javamanphil
@Martin: I’m going with their obvious parentage and taking Perry Mason.
Steve Finlay
WHAT IN THE BLOODY HELL IS GOING ON? Since when was the right to remain silent conditional on anything?
demo woman
@Comrade Javamanphil: Does she cross her legs when she sits?
frankdawg
As far as the lib/con quotient on the USSC I didn’t think Sotamoyor was much of a right hand tilt but it seemed from her writings that is was a tilt that way. That, on this one, single, particular ruling she fell on the lib side is not surprising; she is not bat-shit insane like 4 members are nor as weak willed/minded as #5. But this was quite a leap, closer calls may provide a better judge of her beliefs later.
And all of that is separate from the current fiasco where the closest thing to a liberal currently on the court is going to be replaced by something of an enigma with some very unliberal tea leaves left for people to divine what the hell she thinks.
El Cid
@licensed to kill time:
I’m pretty sure the handcuffs would get in the way, and if they didn’t, these would be considered threatening gestures and a possible attack and thus deserving of shooting or indefinite detention without charge or at least a tasing until a heart attack.
flukebucket
If you decide to remain silent can they stick a broom handle up your ass to try and get you to change your mind?
BR
OT: BP may have given up trying to stop the flow of oil until the relief wells are drilled:
http://www.zerohedge.com/article/another-bp-failure-bp-announces-decision-not-attach-2nd-blowout-preventer-resume-drilling-re
That could mean this thing will gush until at least August for sure.
Edit: this is from Bloomberg news, but apparently BP is claiming they haven’t given up. So who knows.
fanshawe
@flukebucket:
No, they can’t. Follow up question: In what ways do you feel being asked question for two hours is similar to sexual/physical abuse?
Adrienne
The bottom line here is that this idiot had a right to remain silent – AND DIDN’T – nor did he tell them that he was invoking such right. He doesn’t get to answer some questions, not answer others, and then when he gets tripped up say “Oh, I was actually remaining silent, so you can’t use that.” That ain’t how it works. You remain silent by telling them you want a lawyer and shutting the fuck up, ie: remaining silent.
I mean, think about it: You also have the right to an attorney present during your questioning, but unless and until you invoke that right, the police can question you all they like. Same goes w/ your right against self incrimination – you have to TELL THEM you’re invoking it. It’s really not all that controversial when you think about it.
Brent
Cops routinely tell suspects it will be a lot “easier” on you if you “cooperate.” They insist that “cooperation” is the greatest indicator of innocence. To be “uncooperative” with the police, is, we are told, by the police, a great peril to one’s continued freedom. If you read or watch true crime, most convictions are based on confessions when there was not enough evidence to convict. Often when there was no evidence at all.
Yes, you must assert your intention to be silent and ask for a lawyer. It has always been thus. This ruling confirms it.
homerhk
@Joey Maloney: I think my comment wrongly mis-block quoted that bit. that wasn’t me ; that was my example of silly comments about how no-one could be sufficiently sure of Sotomayor’s liberal bona fides. sorry for the confusion but I guess my html isn’t that hot.
handy
@Quaker in a Basement:
The manner in which the the police got their confession and the circumstances surrounding it (a three hour interrogation), not to mention the quality of the confession itself, don’t concern you? To your statement whether Supreme Court decisions don’t like gray, my only response is, this particular court has handed down several decisions where they have injected “grays”, namely the “Bong Hits for Jesus” case–freedom of speech isn’t always freedom of speech.
Punchy
@Steve Finlay: Now you have the right to speak to remain not speaking.
Adrienne
It’s not conditional. This guy wasn’t actually remaining silent — therefore, how were the police suppose to determine that he was invoking the right? If he had actually kept his mouth closed, they wouldn’t have had any “confession” to use against him — but he didn’t, so they nailed his ass.
Judy in SD
One more story about traditions,
“We visited our newly married daughter, who was preparing her first Thanksgiving dinner. I noticed the turkey thawing in the kitchen sink with a dish drainer inverted over the bird. I asked why a drainer covered the turkey. Our daughter turned to my wife and said, “Mom, you always did it that way.”
“Yes,” my wife replied, “but you don’t have a cat!”
QuaintIrene
@Brent:
Yup, and if you ask for a lawyer, that somehow makes you look ‘guilty.;
Adrienne
@Brent:
Exactly. This should be obvious to everyone who’s ever watched an episode of “The Closer” or “Law & Order”. If you don’t ask for a lawyer and assert your intention to remain silent, the cops can keep questioning you all they want, and per the Miranda warning, use anything you say against you in a court of law. If you don’t say anything, they can’t use anything.
Adrienne
@QuaintIrene:
As Chris Rock says, “I’d rather look guilty at the mall, than innocent in jail.” Ask for a lawyer, and shut the hell up.
EconWatcher
Ever heard of “Mississippi Miranda warnings”?
“You have the right to remain silent. For as long as you can.”
MikeJ
@BR: The LMRP is supposed to catch oil, not stop it. I don’t know that this is anything new. They’ve tried all the long shots to stop it. The only thing that has ever worked was relief wells. If they get it stopped by August it will still be far quicker than it’s been done before.
I don’t know the status of BOP on BOP, or if it could do anything other than contain the oil. If they can contain enough (all of it), that’s actually ok too.
Cacti
Can we stop calling Anthony Kennedy a moderate now?
Bush v. Gore, Heller, Citizens United, and now this.
Man’s a wingnut.
licensed to kill time
@EconWatcher:
“Anything you scream, holler or shriek in agony can and will be used against you in a court of law.”
flukebucket
@fanshawe:
Interrogations can get rather intense.
Asked Abner
elmo
@zmulls:
Yeah, my take is the same. The guy didn’t ever request a lawyer or say that he wanted to stop talking — he talked, and now wants to take it back. He’s essentially claiming that he didn’t talk enough and yet talked too much.
I hate the police. I hate prosecutors. I think the system is ridiculously rigged in favor of the State. And I just can’t find a problem with this result. Otherwise, without this minimally onerous bright line rule, you’ll have courts forever inquiring how long the cops can ask questions and get mumbles in response, before the cops are required to stop asking. Do they go five minutes? Ten? What if the five minutes are punctuated by occasional single-word answers, does that re-set the clock? What level of interaction with the police is enough to re-set the clock?
It really isn’t that hard to say “I ain’t talkin.” At that point, the police have to go away and leave you alone. I’m not sympathetic to a guy who chooses to answer some questions and not others, and now doesn’t like the answers he gave and wants to take them back.
Brent
@Adrienne:
I’m to the left of Bernie Sanders and I get this ruling. He CHOSE to not remain silent, thereby abrogating his right. He had the right, but chose not to use it. He did not even need to vocally indicate that he would remain silent, just actualize it by refusing to speak. Here is the scene :
cop : we know you did it, scum, tell us where you hid the murder weapon.
suspect : I respectfully decline to be available for interrogation per my Miranda rights to remain silent. Also, I wish to see an attorney.
cop : listen punk, if you didn’t do anything wrong, you got nothing to worry about. I’m gonna come down a lot harder on you if you don’t start talking.
suspect : with all due respect, I would like to consult an attorney to determine the accuracy of that advice. My intention to remain silent indicates a future as well as present tense, therefore, any further questions are, at this point in time, unneccessary. Also, I don’t like your tone.
cop : why you little . . (muffled, garbled).
Cop strangles suspect but is later aquited at trail because the suspect was clearly being uncooperative.
The Moar You Know
Soon you’ll be living in the police state you have, not the police state that you wish you had.
Hope that those of you who approve of this understand what it is that you’re approving of.
Cacti
Completely OT but since there’s no open thread
Al and Tipper Gore are separating after 40 years.
Bummer.
ruemara
Unbelievable. I’m simply flabbergasted at this decision. What a horrifying Supreme Court we have. Absolutely horrifying.
kay
@Brent:
I disagree. I think it’s a big loss.
Turning to the question of how a suspect gives up the right to silence, by “waiving” it, the Court majority concluded that police need only give the warnings and then satisfy themselves that the suspect understood his rights; they are not required, at any point in the interview, to obtain an explicit waiver from the suspect. Thus, the questioning can go on (the Court did not say how long it could continue, though this case involved about three hours overall) unless the suspect, at some point, explicitly and without ambiguity invokes the right to silence. If the suspect continues to remain silent or uncooperative, police may then use a strategy to try to get the suspect, at last, to confess
I think they deliberately reached the waiver issue so they could decide it against suspects.
It’s more proactive lawmaking from the Right, and they’re absolutely gunning for Miranda.
If anyone had any doubt, they know it now.
Marked Hoosier
@Adrienne: Yea, but in Law and Order, the confession would be thrown out at the 30 minute mark. Then the DA’s will have to get him to confess at the trial on the stand.
I will miss that show…
fanshawe
@flukebucket:
Is there any evidence that anything like that happened here? Meanwhile, I’m not sure what the point of this all is. Justin Volpe was imprisoned for 30 years and ordred to pay almost $300,000 in restitution for brutalizing Louemma. Have you ever met anyone who thinks his behavior in that case was clearly appropriate? Do you think those remedies would no longer be available after this SCOTUS ruling?
Or I could ask again: Do you really think asking someone questions for two hours is basically the same as sexually assaulting and beating someone to the point of hospitalization?
Joseph Nobles
@4jkb4ia: This.
kay
@Brent:
Would you accept a court not determining if the defendant understands what he’s giving up when he enters a guilty plea?
The right to have the state prove the charges, the right to a jury, the right to present witnesses.
Should we be certain he understands those things?
Or can we just sort of wait him out? “Knowing” is really inexplicably tied to “voluntary”. It’s not a function of time.
Cacti
@fanshawe:
Here’s a better one
Rolando Cruz and Alejandro Hernandez
Testimony from opportunistic prisoners and investigators formed the only substance of the prosecution’s case against them, much of it involving Cruz’s alleged and unrecorded confession of murderous “dream visions,” admitted into evidence through testimony from a sheriff’s detective.
licensed to kill time
@Marked Hoosier:
But in Cold Case, the suspect would freely provide the only possible evidence (confession) to convict themselves on a crime that happened 10-20-30 years ago. That always cracks me up. They just have to get it off their chest. No way in hell the police would ever gather enough evidence on these old cases without their help. But it works every time! I wonder how often that happens in real life.
Right Wing Extreme
@nitpicker:
“Not being a lawyer, I may be misreading this, but doesn’t this actually provide a second way for a suspect to stop an interrogation? In the past, suspects would have to ask for a lawyer, but, if they didn’t, then the police could continue to badger them. Now suspects can simply state their unwillingness to speak and, as I read the ruling, the police have to discontinue questioning.
Isn’t this a good thing? ”
Having been ground in the gears of the legal system a time of two, I have to say that from my experience you are mostly correct. You can remain silent in fact, i.e. keep your mouth shut, which is not counter-intuitive, or you can remain silent by saying that you are invoking your rights, i.e. Miranda and the 5th, or even asking for (demanding?) a lawyer. You have always had the ability to say you wish to remain silent, this is merely a clarification at worst, and a reaffirmation at best of this right that you have always had. The police have to stop talking to you at that point. That does seem counter-intuitive, but talking, specifically invoking your rights, is a way to remain silent. The term “remain silent” being seen to literally. I could mean clam up, but according to my lawyer, it means don’t talk about the case or answer the questions. However if you chose to “remain silent” by standing mute, the police do not have to infer anything. You are your own first line of defense for protecting your rights, so if you do not invoke them, the cops can continue to ask you questions until the cows come home.
I disagree with Sotomayor that this decision “turns Miranda upside down.” She is being to narrow. Thompkins could have either kept his mouth shut, and the police would not have had something tantamount to a confession, or he could have invoked his rights, either for a lawyer of to remain silent. I see this as a clarrification of how to implement our rights, not a narrowing of our freedom.
zmulls
SCOTUSBlog gives their analysis.
mantis
@The Moar You Know:
Amazing, the number of good Germans on this thread who seem to think this is hunky-dory.
So how would you non-Nazis have liked the SCOTUS to decide this case? The court invented Miranda, and has tweaked it in the years since to more clearly define it. They are continuing to do so with this decision. What are the alternatives? I can think of four:
1) If a suspect at any time declines to answer a question during interrogation, police must cease interrogation immediately.
2) If a suspect at any time declines to answer a question during interrogation, all subsequent answers are inadmissible.
3) If a suspect decides after interrogation that he wished he/she had remained silent, the court should pretend he/she did.
4) All police interrogations are unlawful and no evidence or confessions obtained through police interrogation are admissible.
Please, tell us Nazis who think this is a perfectly reasonable decision how the court should have decided the case. While you’re at it, please explain how answering questions is an example of remaining silent.
Sheila
Considering that those who are often targeted by law enforcement live on the margins of the culture, often not understanding how the bureaucracy works and, rightfully, mistrusting the powers-that-be, to expect them to take responsibility for calling for their own rights is ludicrous. I hate this.
fanshawe
@Cacti:
That looks like a shitty case but the facts aren’t really close to the one here. The issue in that case is that Cruz and Hernandez were convicted on laughably thin evidence including a clearly fabricated “confession” about the Plaintiffs’ dreams. It’s not like Cruz/Hernandez offered up their dream journals (as if that would prove anything anyway) after remaining silent but subsequently being goaded by police
Brent
@kay:
I do agree the right is gunning for Miranda and the “terrorist exclusion” is the first step, cause, who wants to stand up for a suspected terrorist, unless you are part of the Department of Jihad, formerly the Dept of Justice, but now is run by the Al Queda 12, attorneys who represented Gitmo suspects, per Liz Cheney.
On this ruling, you have to be able to appreciate legitimate police investigation and how they can legally extract information. Anyone undergoing interrogation “waives” his right to silence when he begins to speak. That is why an education campaign should exist to inform of this “bright line.” It should, of course, be predicated upon some life experience which ought to instruct, if under suspicion, never to trust the police and never to give up a right, such as search of your car or house, without a warrant or probable cause. And, of course, the full invocation of Miranda.
I had to learn empathy with the accused due to my youthful enjoyment of dried herbs, which forced me to identify with the criminal culture. Increasingly, however, we are regressing into a police state, as evidenced by the Patriot Act and the Military Commissions Act, which effectively eliminated Habeus, and has yet to be repealed.
kay
@Brent:
Isn’t the 6th circuit the staunch conservative court? Cincinnati?
If the SCOTUS is to the Right of the wingnut court, we may be in real trouble.
mantis
@Sheila:
Considering that those who are often targeted by law enforcement live on the margins of the culture, often not understanding how the bureaucracy works and, rightfully, mistrusting the powers-that-be, to expect them to take responsibility for calling for their own rights is ludicrous.
Even after police explain to them exactly what their rights are, in plain English? How is that ludicrous? Do you really believe that the state must assume all suspects cannot make decisions for themselves based on options which are clearly presented to them? Now that’s ludicrous.
Cacti
Justice Kennedy wrote. If a suspect could invoke the right to silence by simply staying silent, or by some other “ambiguous act, omission, or statement,” that could complicate the dealings with police and require the officers to make difficult decisions about what the suspect actually intended, and run the risk of guessing wrong
That’s what this ruling is about. Not letting those pesky Constitutional rights “complicate dealings with the police”.
Efficient police work trumps individual rights every time for right wing Judicial activists.
Egilsson
The Other Chuck
The question the guy was duped into answering should have been utterly shredded by any competent public defender if that indeed was the basis of a confession. Then again, the quality of public defenders is and always has been something of a crapshoot.
The decision in this particular instance is not terribly cut and dried. It is however going to be selectively applied as precedent whenever it’s convenient to weaken one’s fifth amendment rights.
Cacti
@mantis:
Justice Kennedy opined that merely staying silent does not constitute exercising the right to remain silent.
You have to speak in order to exercise your right to remain silent.
It almost sounds “counterintuitive” and as though it “turns Miranda on its head”.
kay
@Brent:
That wasn’t clear before. It is now. Every police agency in the country is going to drop the signed waiver.
People cannot HEAR when they’re scared. They hear about 1/10 of what you tell them. This person was uncooperative. He wouldn’t make eye contact. The one and only way they reached him is they invoked his religious sense. I don’t even know if his answer qualifies as a confession. I have no idea what he was thinking, or what he was answering “yes” to.
I don’t really understand this emphasis on “efficiency” that I’m hearing here. They got nothing but time. They had him for three hours. They can’t walk him through a waiver? They’re too busy?
Sheila
@mantis: I thought the point of this ruling was that the police would NOT be explaining their rights to them until they asserted them.
Cacti
I don’t see how this ruling can be read as anything other than a big, wet kiss to Law Enforcement from SCOTUS.
kay
@Sheila:
No. They read him Miranda. They didn’t have him waive Miranda.
They decide if the person understands Miranda, and then they decide if the person waives Miranda.
I don’t even agree that this makes a “bright line” rule, as to the police, although it certainly does to the suspect. Looks completely discretionary to me.
Brent
@Cacti:
The silver lining here is that by speaking to indicate you are not going to speak, you can STOP the interrogation. This is perhaps a 2nd cop stopper in addition to “lawyering up.”
For some percentage of the populace, an attorney is neccessary to be present in order to instruct, advise, insist, i.e. demand that the client shut the hell up. The police have a job to find the guilty party. It would seem many here would want them to periodically instruct the suspect that they really should not say anything if they truly understood their Miranda rights. Hell, cops have the right to outright lie to suspects in order to extract information. This changes very little.
bemused
Oh great. Now media will be showing Al & Tipper’s kiss every two seconds for weeks.
Martin
Ok, I know that this really steps into the breech of judicial activism but if SCOTUS wants to paint a bright line here, why not compel videotaped interrogations? It seems so much of this hinges not on what a suspect says, but the interpretation claims and hearsay statements of what the suspect says. Why not just eliminate all of that?
Cacti
@Brent:
This changes very little.
Disagree.
Miranda rights previously required a knowing, intelligent, and voluntary waiver by the accused.
Under the new ruling, an accused who doesn’t actively state “I invoke my right to remain silent” is assumed to have waived their right. Because, just being silent (as the right protects) is “ambiguous” and gets in the way of efficient police work.
It’s a thumb on the scale in favor of the State.
mantis
@Sheila:
I thought the point of this ruling was that the police would NOT be explaining their rights to them until they asserted them.
Then you misunderstood. Any interrogation not preceded by a reading of the suspects Miranda rights would be inadmissible. This decision does not change that at all.
@Cacti:
You have to speak in order to exercise your right to remain silent.
Yes, it’s a bit silly, but makes sense. Here’s the typical Miranda warning:
You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?
“Anything you say can and will be used against you” is the point here. Don’t want to answer some questions? Don’t answer them. Don’t want to answer any questions. Tell them that. Want a lawyer? Tell them that.
The point of having a right to remain silent is to allow suspects to avoid incriminating themselves by confessing (inadvertently or otherwise) under interrogation. The point of this right is not for the suspect to become a monk and undertake a vow of silence. Just because it is counterintuitive for one to speak to invoke one’s right to remain silent (i.e. not answer interrogation questions) doesn’t mean this rule is unreasonable, or fascist as some would have it.
It almost sounds “counterintuitive” and as though it “turns Miranda on its head”.
Sotomayor is wrong. This does nothing to turn Miranda on its head. If the suspect had asked for a lawyer, or indicated he wouldn’t answer any questions, the interrogation would have ended. If he had just kept his mouth shut under interrogation, the police wouldn’t have been able to elicit a confession. The suspect had many ways to keep from incriminating himself. He chose to answer questions and incriminate himself. The justice system cannot abandon its purpose of seeking justice simply because some suspects are stupid.
Tax Analyst
@Martin:
Ummm…in what sense do you mean that?? Does it matter if Miranda is consenting to this or not?
Citizen Alan
@Zifnab:
While I agree that the Bong Hits case was wrongly decided, it did not establish a First Amendment exception for talking about drug paraphernalia. What it established was that there is a First Amendment exception for school students participating in what the school considers to be an official school event. In other words, it was another step towards the Court adopting Thomas’s view that minors are essentially subhuman and have no meaningful constitutional rights at all.
kay
@Brent:
There’s this scary theme that has emerged in this country where the burden is increasingly on the citizen or suspect.
Don’t get mouthy, and you won’t get tazed. Assert your rights or waive them, and what were you doing in that neighborhood, anyway? I, like, apparently, Justice Sotomayor, think that is fundamentally backwards. Police are the professionals. Regular people are not an even match. They have few enough tools.
frankdawg
Yes, there is plenty of gray in this case but that is what a lot of important decisions are made on – the gray areas. For the last 20 years those gray areas have all fallen one way & the sum total is not good for the rights of people accused of crimes. Its as if the court believes innocent people never get arrested or charged.
It interesting how often in death penalty cases where it turns out the convicted was innocent the cops managed to pick a very unsympathetic guy to pin the wrap on. “How can you defend a guy that was convicted of rape 10 years ago” “Because I do not think he did THIS rape/murder” “But this is a bad guy how can you defend him?”
mantis
@Cacti:
Miranda rights previously required a knowing, intelligent, and voluntary waiver by the accused.
This was not a requirement from the court or Constitution. It is one that some states have adopted, but not all. Those states can still require such a waiver.
Under the new ruling, an accused who doesn’t actively state “I invoke my right to remain silent” is assumed to have waived their right.
That was already the case in many states. Doesn’t change the fact that the suspect actually has to say something in order for it to be used in court. Now, in those states, suspects have an additional avenue to end interrogation, in addition to asking for a lawyer.
Because, just being silent (as the right protects) is “ambiguous” and gets in the way of efficient police work.
Actually, the problem in this case is that the suspect didn’t stay silent. If he had, he wouldn’t have incriminated himself.
frankdawg
@Citizen Alan:
You mean students are 3/5 of a citizen? I’m sure Justice Thomas could understand that concept.
;)
kay
@frankdawg:
I don’t think it’s that. I think it’s a knee jerk deference to police judgment, and there’s really enough of that as it is.
I don’t know: it’s a hard job. Did someone tell them it was going to be easy?
Zifnab
That’s the rough equivalent of the “Have you told your parents you are gay yet” question, in my book. When you’ve got a bunch of cops in a room interrogating you for two hours – playing mind games and antagonizing you and lying to you – you’re absolutely right to ask when Miranda is supposed to kick in, assuming the accused doesn’t explicitly request the police stop fucking with him.
Why the hell do the cops need a confession, anyway? Do they have motive? Do they have opportunity? Do they have physical evidence? If the entire case turns on “GuiltyGuySaysWhat?” I’m going to have to call bullshit.
If you have a man in custody and he says “I didn’t commit the crime” ten times and “I did commit the crime” once, is he guilty or innocent? Oh fuck. Who cares, right? We’re not interested in criminal justice here. We’re interested in “GOTCHA!”
Zifnab
What’s more, this isn’t a fucking gray area. He didn’t sign a confession. He didn’t give a long, vocal, chocked up plea of forgiveness to the officers. He didn’t wander into the interrogation chamber wailing, “Lord help me – I did it!” while waving the murder weapon.
After 2 god damn hours a cop asks him, “Did you pray for forgiveness” and THIS is their confession. No take backs. No “sorry, you misunderstood”. No conformational inquiry. Certainly nothing in writing.
Steve Colbert would be aghast at this level of “gotcha!” questioning. This was a trick question being upheld by the SCOTUS.
kay
@Brent:
We disagree, but I’ll deal. I think the President gets to pick the SCOTUS justice, unless he or she is insane or a felon (President or Justice), so I reconciled myself to the Right wing activist justices long time ago.
It’s over when the election is over. I get all my grieving out of the way on one night.
I am happy with Sotomayor, but I was her cheerleader, complete with pom-poms, so it’s not a big shocker.
Brent
@kay:
I agree, but more specifically about 4th ammend search violations. The 4th virtually does not exist anymore. The right to privacy is my greatest concern with the police state. This issue has to do with voluntary confessions. It is true that some confess to crimes they did not commit. But in this case and many others, they gave up their rights and confessed because they were guilty. Just like in debate class where you need to be able to argue both sides of an issue, there is a case to be made for letting guilty suspects incriminate themselves after they have been Mirandized.
Citizen Alan
@The Moar You Know:
It’s not that we approve of the outcome – it’s just an outcome consistent with Miranda as it has been understood for the last several decades. “You have the right to remain silent. Anything you say may be used against you in court.” Under the 5th Amendment, you never have to answer any questions put to you by the cops, but that fact alone has never been understood to require the cops to stop asking you questions, especially if you don’t make it clear that you are refusing to cooperate. The way you stop an extended interrogation is to ask for a lawyer, because after that point, unless you the suspect volunteer information, the cops are not allowed to ask you anything without your attorney present. If they do interrogate you without your lawyer present, your responses are subject to suppression, and any competent attorney will advise you not to answer any truly incriminating question.
More interestingly, I interpret Sotomayer’s dissent as suggesting that there is an affirmative right to be free of interrogations which are so long that they wear down one’s ability to remain silent. Such a right would represent the biggest expansion of Miranda in decades, and I’m frankly delighted that we have four Justices who support that view.
Citizen Alan
@Marked Hoosier:
I won’t. I used to refer to Law & Order as “Reversible Error Hit Parade.”
YellowJournalism
@Zifnab: Palin was against this ruling, too, until she was told that Katie Couric wasn’t the interrogating officer.
elmo
@mantis:
Exactly. I practiced law for eleven years, and I have to admire the balls of the lawyer who can make the following argument with a straight face:
“Your Honor, we move to exclude my client’s statement, on the grounds that the statement was made while my client was exercising his right to remain silent by refusing to speak.”
Saywhut?
Egilsson
“trick question…” – that’s ridiculous.
See the Shrek quote above.
fasteddie9318
For fuck’s sake, Kennedy is not a swing vote. Can we kill this false fucking meme dead please? Has he ever broken ranks with the other conservatives to vote with the liberals? Seriously, ever? Talk about moving the Overton window; if Kennedy is a swing vote, he seems to do all his swinging in one direction.
Egilsson
Boumediene ring a bell?
Casey?
You obviously don’t know anything about it.
Citizen Alan
@Zifnab:
There is no constitutional right to be free of “gotcha!” questions during a police interrogation. I wish there were, but there’s not one. The proper response to a “gotcha!” question is one of the following:
1. I invoke my right to remain silent.
2. I want my lawyer.
3. silence
kay
@fasteddie9318:
He has. He’s been great on juvenile issues. The death penalty and life imprisonment. Which means he’s good on the Eight Amendment.
He’s handy to have.
Right Wing Extreme
@Cacti:
“It’s a thumb on the scale in favor of the State. ”
Possibly.
“Under the new ruling, an accused who doesn’t actively state “I invoke my right to remain silent” is assumed to have waived their right. Because, just being silent (as the right protects) is “ambiguous” and gets in the way of efficient police work.”
Totally disagree. If you say nothing, included vocalizing the invocation of the right to remain silent, the cops can assume any blasted thing they like. If you keep your mouth shut, the police have nothing on you. This is the difference between de facto and de jure. I think it is like @Egilsson said above: You have the right to remain silent, what you lack, is the ability. If you say nothing, you have invoked the right to remain silent de facto, and they will have nothing on you in court.
mantis
@Zifnab:
Why the hell do the cops need a confession, anyway? Do they have motive? Do they have opportunity? Do they have physical evidence? If the entire case turns on “GuiltyGuySaysWhat?
Why do cops need a confession? Well, they don’t, necessarily, but it certainly makes things easier when the guilty confess. Is that even a serious question?
Anyway….
Officers began an interrogation. At no point during the interrogation did Thompkins say that he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. Id., at 10a. Thompkins was “[l]argely” silent during the interrogation, which lasted about three hours. Id., at 19a. He did give a few limited verbal responses, however, such as “yeah,” “no,” or “I don’t know.” And on occasion he communicated by nodding his head. Id., at 23a. Thompkins also said that he “didn’t want a peppermint” that was offered to him by the police and that the chair he was “sitting in was hard.” Id., at 152a.
About 2 hours and 45 minutes into the interrogation, Helgert asked Thompkins, “Do you believe in God?” Id., at 11a, 153a. Thompkins made eye contact with Helgert and said “Yes,” as his eyes “well[ed] up with tears.” Id., at 11a. Helgert asked, “Do you pray to God?” Thompkins said “Yes.” Id., at 11a, 153a. Helgert asked, “Do you pray to God to forgive you for shooting that boy down?” Id., at 153a. Thompkins answered “Yes” and looked away. Ibid. Thompkins refused to make a written confession, and the interrogation ended about 15 minutes later. Id., at 11a.
Is “Do you pray to God to forgive you for shooting that boy down?” a trick question? I don’t think so.
As for evidence, Thompkins was a suspect from the beginning and fled. They found him about a year later.
At trial, the prosecution’s theory was that Thompkins shot the victims from the passenger seat of a van driven by Eric Purifoy. Purifoy testified that he had been driving the van and that Thompkins was in the passenger seat while another man, one Myzell Woodward, was in the back. The defense strategy was to pin the blame on Purifoy. Purifoy testified he did not see who fired the weapon because the van was stopped and he was bending over near the floor when shots were fired. Purifoy explained that, just after the shooting, Thompkins, holding a pistol, told Purifoy, “What the hell you doing? Pull off.” Purifoy then drove away from the scene.
So the accomplice testifies that he did not see the shooting, but that Thompkins was holding the gun immediately afterwards. The prosecution held that this was Purifoy’s way of protecting his buddy by saying he didn’t know who shot the gun, but it’s still pretty damning, especially with Thompkins’s confession.
Since the appeal focuses on the interrogation, I haven’t seen details as to motive, other evidence, etc. Going to look for the original criminal trial decision…
fasteddie9318
@kay:
OK, fair enough I suppose, but does being not-so-radically right wing on a subset of issues really make him a swing vote when he is pretty much radically right wing on everything else? I’m objecting to the false (IMO) frame of Kennedy as the token moderate on the court; he may be the closest the SC’s right-wing has to a moderate, but that’s a reflection of how far off into the whacko fringe wilderness the Court’s conservatives have wandered. The media keeps trying to convince us that Kennedy is middle of the road, which only serves to shift “middle of the road” even further to the right.
kay
@fasteddie9318:
I don’t really understand the whole overton window concept, to be honest with you. I sort of vaguely get it, but just from reading liberal blogs.
I pretty much stick to case by case with the Supreme Court. I know where Scalia’s “with me”, and so on. I’m not much of a legal scholar, as far as Broad Themes, but juvenile issues are dear to me, so I see the value of Kennedy.
I do see what you’re saying. If I were to define the center, Kennedy would be Right of center.
jonas
First off, everyone should watch these videos by, of all people, a law school professor at Regent University, about police interrogations and the implications of Miranda. His takeaway point: anything you say, as the advisement goes, can only be used against you, never for you. Even yes’s and no’s. So shut the hell up and wait for your lawyer. And if you’re a laywer, tell your client to shut the hell up until you get there.
To my mind, the problem with this case is that it was a terrible one for the SCOTUS to have taken up in the first place. It didn’t really allow them to clarify much of anything and will simply make life miserable for appellate courts, not to mention attorneys and their clients, for the foreseeable future. They never should have agreed to hear it.
Zifnab
@Citizen Alan: Well, arguably there was Miranda. If the suspect refuses to answer police questions, and the police continue to prob, one can – perhaps – assume that any “confession” they provoke is inadmissible.
Certainly, the smart thing to do is demand your lawyer. And if the suspect had been playing the officer in a game of chess, I’d put my money on the officer. But we’re convicting a man based not on hard evidence or on an honest confession of guilt. We’re convicting on word-sparing between captive and captor.
What happens if this guy is innocent? Certainly, this half-hearted slip of the tongue is more than reasonably doubtful. Now you’ve got an innocent man in jail and a murderer running lose. And you’re disincentiving police from doing their jobs along the way. Because why am I going to spend 10 hours in the field, taking down interviews and hunting for the murder weapon and dusting for prints, when I can just waltz up to the first warm blooded homide in my path and say, “Do you feel bad because you killed the victim?” then throw him in cuffs and drag him off to jail for 20 years.
Egilsson
Zifnab, your problem isn’t really with the police, but with the jury that convicted him based on what you claim was a “trick” question. You challenge the adequacy of convicting him based on a “gotcha”. That’s a very different issue. Don’t believe that comment was the only thing that convicted the guy.
He had a right not to speak, he was told he had a right not to speak or it could be used against him, he spoke, and what he said was used against him – just as the Miranda warning told him.
Brent
@Citizen Alan:
Despite my unbunched panties and unclutched pearls on this decision, I am heartened that 4/5ths of the court wanted to expand Miranda. And from what I understand, it would have been an expansion.
I also don’t see the reasoning behind the Supremes taking this case, as it only clarifies that if you say anything after Miranda, you can’t later argue that you actually meant to remain silent even though you didn’t.
Zifnab
@mantis:
I sure as hell do. It’s a “yes/no” question where both responses indicates you are guilty. What’s more, he didn’t “confess” hard enough to put the claim in writing. If he’d put pen to paper and confessed, you’d have me. Had Thompkins confessed, signed his name on it, and come running back into the room with a lawyer in toe, he’d have no excuse.
But, even then, you’re left with the riddle – if a guy says “I’m not guilty” ten times and “I’m guilty” once, is he guilty or innocent? The answer being, not enough information! The cop slow rolled Thompkins into the answer he wanted to hear and that was that. No chance to recant. No lawyer present.
Thompkins didn’t even provide additional valuable input. He didn’t dispute his accomplice’s claim or put forward a new alibi or otherwise offer up some new data. He “confessed”.
And while the evidence might be damning in it’s own right, the evidence plus a weak tea confession that didn’t last long enough to get on paper doesn’t strike me as beyond a reasonable doubt.
mantis
@Zifnab:
I sure as hell do. It’s a “yes/no” question where both responses indicates you are guilty
No it’s not, and no, they don’t. The suspect was in no way required to answer with one word. Any “no” response could have been easily qualified. Two possible responses that do not indicate guilt.
1) “No.” Simple as that. I don’t pray to god to forgive me. That’s not an admission that he committed the crime, but doesn’t feel guilty. It only indicates a lack of praying for forgiveness. Not a confession of anything.
2) “No, because I didn’t shoot him.” Need I say more?
The suspect didn’t answer that way though, did he? He said yes. Why would he say he prays for forgiveness “for shooting that boy down” if he didn’t commit the crime?
What’s more, he didn’t “confess” hard enough to put the claim in writing.
That’s the point of the Miranda warning. “Anything you say can and will be used against you…”
f he’d put pen to paper and confessed, you’d have me.
Glad you’re not a prosecutor.
Had Thompkins confessed, signed his name on it, and come running back into the room with a lawyer in toe, he’d have no excuse.
He already has no excuse. He should have kept his mouth shut, or asked for a lawyer.
But, even then, you’re left with the riddle – if a guy says “I’m not guilty” ten times and “I’m guilty” once, is he guilty or innocent?
I would say that depends on how the interrogation was conducted and the rest of the evidence. In any case, did Thompkins ever say he wasn’t guilty?
The cop slow rolled Thompkins into the answer he wanted to hear and that was that. No chance to recant. No lawyer present.
The cop asked questions and Thompkins answered. That’s an interrogation. It was his dumbass fault he decided to talk and it was his dumbass fault he admitted guilt.
And while the evidence might be damning in it’s own right, the evidence plus a weak tea confession that didn’t last long enough to get on paper doesn’t strike me as beyond a reasonable doubt.
That’s what juries decide. The jury in this case found the defendant guilty.
asiangrrlMN
@Zifnab: I’m with you on this one. I also think that the people who are saying, “Just don’t talk” must not have been on the questioning end of the cops in a very negative experience (I haven’t either, but I can imagine). They were interrogating this guy for three hours. Not letting him go. Constantly asking him questions. Probably giving him the whole “If you’re innocent, you should cooperate” bullshit. If all they have on this guy is that one ‘yes’ response, then I really question the whole judicial system.
It doesn’t seem as if the name of the game is justice, but rather a simple conviction. If it really is that incumbent on the person being interrogated to know all the ins and outs of the law, then we might as well say, “The whole legal system is adversarial. It’s us against them, and they have no interest in helping you.” In other words, as someone else said, why the fuck would anyone ever want to talk to the cops, then?
Egilsson
I was a lawyer who did criminal defense work. I won’t pretend I was F.Lee. Bailey or something, but I’m not a noob either.
I am pretty cynical about cops, as some of the worst and most obvious liars I’ve seen on the stand were cops. It was shocking to me.
The issue of the sufficiency of the evidence to convict a guy is not the same as whether that statement can be used as evidence.
Zifnab doesn’t like the jury’s conclusion in this case, because he thinks he knows more than them. Fair enough, but it was their call, not his, and I’ll bet they know more about the facts than he does.
I would have been fine had Miranda been expanded, but imo this decision is not inconsistent with the 5th. If states want to expand rights beyond that, they certainly can. Get active and make it happen if you don’t like this. People are really lazy about this stuff these days.
Quaker in a Basement
@handy: Objection. Irrelevant.
The question was: How is it supposed to play out? If the arrestee is silent for one minute, are the cops required to stop asking questions? Five minutes? Ten?
You forgot to answer before you started your mindreading act.
Right Wing Extreme
@asiangrrlMN:
“I also think that the people who are saying, “Just don’t talk” must not have been on the questioning end of the cops in a very negative experience (I haven’t either, but I can imagine).”
I call BS on that one. I have been in a police interrogation. I was innocent by the way, but I kept my mouth shut. Later I asked for a lawyer, and surprise surprise they left me alone until he arrived. You are correct that it is a very adversarial process though.
gwangung
@asiangrrlMN: You know, what I think muddies the waters is that they weren’t all questions about HIS involvement. They were also asking questions about his buddy’s involvement. The right to remain silent is the right to not incriminate one’s self. Asking questions about others’ actions does not preclude questions designed to catch prevarications (“gotcha” questions).
I’m a little mixed on this. I dislike expanding the state’s power. On the other hand, I dislike ambiguity. On the third hand, I would much prefer it if the police explicitly said, “Do you understand you have the right to remain silent? If so, do you still want to talk to us?”
gwangung
@Quaker in a Basement:
Again, what muddies it is that he WAS giving answers (though it’s not known if it was about himself or his friend).
Quaker in a Basement
@Zifnab:
Ridiculous. This is called “evidence” and it’s up to a jury to decide if it’s meaningful or not. If the arrestee (or his attorney) wants to argue that it was inadvertent, that’s his right also.
Little of the discussion of this case–including the arguments made to the Supreme Court on behalf of Tompkins–mentions any other evidence, or the lack of it. The only question presented on Tompkins’ behalf, and the only one considered is whether the cops have to stop questioning if the arrestee doesn’t say anything.
Those who object to this decision have yet to propose a standard for the cops to follow.
Brent
Of course it’s adversarial. The whole damn legal system is adversarial. If you or anyone is ever asked to go down to the courthouse to “give a statement” or just “answer a few questions,” it should be assumed that it is an adversarial situation. Forget the reel to reel films about the police being our friends. They are out to solve a crime and you may be convenient. I have watched enough video taped interrogations to know how much coercion and trickery is used, sometimes so egregious, the confession is thrown out. The major lesson which should be broadcast from this ruling is : when being questioned by cops, shut down every damn orifice and sphincter in the body so tight you could break a pencil off.
Bella Q
I am currently reading the decision, but I have read the description it gives of the interrogation, and I’m actually not too troubled. Thompkins (the accused being questioned) did not sign his Miranda form, and the testimony was mixed as to whether he verbally acknowledged that he understood the enumerated rights. And he answered questions, without requesting counsel. That’s really rather critical here.
I’ve worked both sides of the aisle in criminal law, but this doesn’t strike me as quite so awful as I’d feared. I always tell people, no matter what, ask for counsel. Because most people don’t have the discipline not to talk. They have the right, and they may even understand it, but they don’t have the discipline. When you ask for counsel, they have to stop until you get counsel. Period.
I’m going back to go over the analysis in the decision.