NEWS JUNKIE POST
Jun 3, 2010 at 6:22 pmShut Up, But Speak Up First: SCOTUS Erodes Miranda
Everyone who’s ever watched “Law & Order,” knows the drill. If you’re arrested you have the right to remain silent. You have a right to an attorney and if you can’t afford one, one will be provided to you. And anything you say may be used against you in a court of law.
Those rights known as The Miranda Warning, have protected citizens from abusive police interrogations for over forty years. Named for Ernesto Miranda, an Arizona defendant charged, in 1966, with a slew of brutal crimes including rape and kidnapping who, under police duress, confessed to all the charges. His conviction was overturned on the grounds of alleged police intimidation. While he was later convicted with new evidence at a new trial, the methods police are permitted to use to secure confessions were forever changed.
But they may be changing again. And not in the right direction. Last Tuesday, The Supreme Court further loosened the Miranda grip. In a narrowly split 5-4 decision the Court’s conservative majority expanded the limits on Miranda, saying in essence from now on if a suspect wants to remain silent he/she better speak up. Now you must explicitly invoke that right. In other words, before you shut up, you’ve got to say ” I’ll shut up now.” I suppose variations like ” My lips are sealed,” “Loose lips sink ships” and “See no evil, hear no evil, speak no evil,” will also be acceptable. The ruling is a tad murky when it comes to miming your invocation. So making a motion of locking your lips and then tossing away the key may not hold up.
The ruling comes in a Michigan case in which a suspect, Van Chester Thompkins, remained silent for most of a three hour interrogation before implicating himself in a 2000 murder. He appealed his conviction, claiming he had, in fact, invoked his Miranda right to remain silent by remaining silent. Justice Kennedy, writing for the majority said, “Thompkins did not say that he wanted to remain silent or that he did not want to talk to police. Had he made either of these simple, unambiguous statements he would have invoked his right to cut off questioning. Here he did neither so he did not invoke his right to remain silent.”
I know it sounds like a no-brainer. Everyone should be able to simply invoke and be prepared to stew in a holding room like a wilting hot house flower until a defense attorney shows up. But police are permitted to make suspects uncomfortable; police can even lie to suspects about erroneous evidence that might implicate them. For most people getting arrested–whether guilty or innocent–is a stressful, possibly traumatic experience. Throw in issues if dubious mental acuity and language barriers, and you’ve got a potential travesty in the making.
Justice Sotomayor, commenting for the dissent, said the ruling turned Americans’ rights of protection from police abuse “upside down.” In case you’re keeping score, Elena Kagan, President Obama’s nominee to fill Justice Stevens’ liberal shoes, sided with the police as U.S. Solicitor General when the case came before the court. Stevens joined Sotomayor in dissent along with Justices Ginsburg and Breyer. This is yet another harbinger of things to come as the high Court continues its swing to the right.
Miranda, by the way, already took too hits earlier this term. The Supremes ruled that a suspect’s request for an attorney is good only 14 days after being released from police custody. That’s the first time the Court has placed a time limit on a request for legal representation. They also ruled that police don’t have to explicitly tell suspects about their right to an attorney during an interrogation. So listen up the first time, kids. You get your rights once and only once.
I know here’s where the red meat law and order types start hurling “bleeding heart liberal” epithets. But I won’t–pardon the expression–cop to that. I believe most police officers and prosecutors are on the side of justice. I think guilty people should be punished(sentencing and prison conditions open up a whole other can of complicated worms) and violent predators should be imprisoned for lengthy terms, with the worst of the worst never seeing the light of day. But everyone deserves a fair trial, and in order to get that, you’ve got to protect even Attila the Hun’s rights.
I am also familiar with false confessions. With the advent of DNA technology, this is no longer some liberal concept, but a harsh reality. According to the Innocence Project about 25% of all DNA exonerated cases involved a defendant making incriminating statements, offering out-right confessions or pleading guilty. That is an astounding number. Most people find it hard to believe; who would confess to a crime they didn’t commit? I’ve said that many times. I’m too strong, too smart, I understand my rights. I’d lawyer up so fast Gloria Allred and Alan Dershowitz would be fighting over the last parking space in the police station lot. Thankfully, I’ve never been in that position. Who knows what I’d do or say under such extraordinary stress. Now take someone with less education, less resources, less emotional stability (ex-boyfriends need not offer comment), and it’s not such a stretch to find so many wrongfully accused cracking under pressure.
Juveniles, the mentally ill and mentally challenged are particularly vulnerable to coercion. Remember the 1998 case of Michael Crowe? The California teen, then 14, was accused of brutally killing his 12 year old sister. After a twenty-seven hour interrogation, with little food and less sleep, and without counsel or even parental advice, he and a friend confessed to the crime. The kids were totally innocent, and later exonerated after evidence connected a homeless man to the murder. Richard Leo, an expert in false confessions, watched the Crowe interrogation tapes and labeled them ” a textbook case in how NOT to conduct an interrogation.” He said the interviews amounted to “psychological torture.”
There are hundreds, if not thousands of such cases every year. Clearly, criminal suspects deserve not only the benefit of the presumption of innocence, but the checks and balances to preserve a fair interrogation and judicial process.
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Actually, this may be a good thing as once a person says they wish to remain silent, there would be no legitimate reason for the police to continue the interrogation. Thus, continuing would certainly be considered “psychological torture ” and a good basis for getting legislation passed to end this process.