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When being silent doesn't mean you want to remain silent

Last year was the Big Year for 4th Amendment cases in the US Supreme Court.  This year is shaping up as the Big Year for the 5th Amendment.  While defendants went one for three last year, losing in Herring v. US and Arizona v. Johnson before staging an impressive come-from-behind win in Arizona v. Gant (cases discussed here), though, so far they've been shut out in the three cases handed down.  In Florida v. Powell  and Maryland v. Shatzer (both discussed here), the Court rejected a contention that a Florida police advisory to a suspect about his Miranda rights was defective, and that even if a suspect invokes his Miranda rights, police can resume questioning as long as they wait at least two weeks to do it. 

Those results weren't surprising; only Stevens dissented in Powell, and Shatzer was unanimous.  The knives came out, though, in Tuesday's decision in Berghuis v. Thompkins, the 5-member majority concluding that a defendant has to "clearly" invoke his Miranda rights, and that waiver of those rights could be inferred from the fact that he finally said something at the end of nearly three hours of police interrogation, and a spirited dissent from Sotomayor arguing that the Court went much farther than it needed to in whittling down Miranda's protections.

In early 2001, two Southfield, Michigan, police officers traveled to Ohio to interrogate Van Chester Thompkins, who'd been arrested on suspicion of having killed a man in Southfield a year before.  The officers gave Thompkins a form advising him of his Miranda rights, which he declined to sign.  The police then interrogated him for almost three hours, during which time he said almost nothing, other than some isolated "yeah's," "no's," and "I don't know."  Finally one officer asked him if he believed in God, whether he prayed to God, and "Do you pray to God to forgive you for shooting that boy down?"  Thompkins answered yes to each of those three questions.  And that was his confession.

The Michigan court and the Federal district court on habeas found no problems, but the 6th Circuit reversed, finding that Thompkins' silence for nearly three hours clearly conveyed that he did not wish to waive his rights.  The Supreme Court reversed that, the 5-4 decision falling along ideological lines, with Kennedy joining the conservatives, and writing the majority opinion.

Complicating the issue here is that we're talking about two separate rights -- self-incrimination and counsel -- and two separate concepts -- invocation and waiver.  Thompkins argued that his silence constituted an implicit invocation of his rights.  Kennedy noted that previous decisions have held that a suspect must invoke his right to counsel "unambiguously" in order to terminate questioning, and Kennedy finds "no principled reason" for adopting a different standard for invoking the right to remain silent.

But that doesn't end the inquiry.  While invocation stops questioning, a failure to invoke the rights doesn't automatically result in admission of any statements; the government must still prove that the defendant "knowingly and voluntarily waived" his Miranda rights.  And this, as the majority saw it, was the crux of the case.  They easily rejected the argument that Thompkins had clearly invoked his rights, leaving the question of whether he had implicitly done so.  The majority found he had. 

Justice Sotomayor's dissent does an effective job of pointing out the logical defect in the majority's view:  basically, they found waiver from the fact that Thompkins had ultimately made a statement.  In Sotomayor's view, this essentially allows the police to continue questioning a suspect until he finally says something they can use.  As one lower court judge put it during Thompkins' odyssey through the legal system, what can be a clearer indication that a suspect doesn't waive his right to remain silent than his remaining silent?

The net result of Thompkins is to diminish the distinction between invocation and waiver.  Essentially, as long as the suspect does not invoke his right to remain silent, police questioning can continue, and if he does make an incriminating statement, he will be deemed to have waived his right.  The "heavy burden" Miranda imposed on the police to show a knowing and voluntary waiver of the right is largely eliminated; the "voluntary" aspect, at least, can be shown simply by the failure to invoke the right.  The police would still have to show that the waiver was "knowing," i.e., that the defendant understood his rights.  How high a hurdle that is remains to be seen; there was no real evidence in the record that Thompkins ever expressed his understanding of his Miranda rights.

One of the troubling aspects of the decision is that the Court needn't have reached this issue.  The case came up through habeas, and under the standards applicable to that review, the Michigan courts' decision couldn't be reversed unless it was "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."  As mentioned, the Court had never addressed the issue of whether a suspect must "unambigously" invoke his right to remain silent, so the Michigan courts' decision in that regard certainly couldn't be regarded as involving an "unreasonable application" of Federal law.

Yet perhaps the most disturbing aspect of the decision is that it gives the police more power than they thought they had.  Many law enforcement training manuals, including that of the FBI, expressly caution that questioning is not to continue unless there is an express waiver of rights.  Thompkins makes clear that this is not constitutionally required.

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