The Thompkins Decision Two Views. Steven R Shapiro..John Yoo

[Valin]

WSJ:

The Thompkins Decision: A Threat to Civil Liberties . . .
Steven R Shapiro
6/8/10

When does keeping quiet indicate a willingness to talk? Based on a Supreme Court decision announced on June 1, the answer is during police interrogation.

The decision in Berghuis v. Thompkins is not just illogical. It seriously undermines the court's landmark ruling in Miranda v. Arizona, which has helped to preserve the constitutional right to remain silent for more than four decades.

In crafting its now-famous warnings, the Miranda court recognized that a suspect in police custody can be worn down by prolonged questioning and other interrogation tactics. It therefore created a series of safeguards designed to ensure that the right to remain silent is fully respected during the interrogation process.

The decision in Thompkins turns Miranda on its head. Under Miranda, once a suspect "indicates in any manner . . . that he wishes to remain silent, the interrogation must cease." In Thompkins, the court treated a suspect's prolonged silence, which is most reasonably understood as indicating a desire not to speak, as an open invitation to further police questioning.

Instead of enforcing Miranda, the decision in Thompkins provides a road map around it.

Van Chester Thompkins was arrested for murder in Southfield, Mich., in January 2000. He was brought to a police station where he was read his Miranda rights and asked to sign a form acknowledging that he understood those rights. He refused.

The police then interrogated Thompkins for nearly three hours. Until the very end, Thompkins made only two comments of note: He declined a peppermint candy that the police offered and he complained that his chair was uncomfortable.

Thompkins said nothing else of substance in response to a barrage of police questions. He did not answer the easy questions and ignore the hard ones. He did not answer questions at the beginning of the interrogation and then stop talking later. The police themselves characterized the interrogation as "nearly a monologue."

Still, the police persisted. After nearly three hours, Thompkins was asked whether he believed in God and whether he had asked God to forgive him for his crime. A police officer later testified that Thompkins said "yes" to both questions, and Thompkins was convicted of murder.

The Supreme Court upheld his conviction and sentence to life in prison without parole by a 5-4 vote. In an opinion written by Justice Anthony Kennedy, the majority ruled that the constitutional right to remain silent must be expressly invoked but it can be implicitly waived.

Applying this new rule, the majority concluded that Thompkins had implicitly waived his right to remain silent despite the fact that he had said nothing for nearly three hours after being read his Miranda rights. Justice Kennedy reasoned that if Thompkins had wanted to remain silent he could have continued to do so, and that by finally offering a one-word response to an incriminating question he had voluntarily forfeited his rights.

The court portrayed its decision in Thompkins as an application of Miranda rather than a departure from it. But, in fact, Miranda was based on a very different understanding about the realities of custodial interrogation, the pressures confronting suspects who are being questioned by the police for a serious crime without a lawyer, and the risk of false confessions under those circumstances.

More specifically, and in direct contrast to Thompkins, the Miranda court held that "a valid waiver will not be presumed simply from the silence of the accused after warnings or simply from the fact that a confession was eventually obtained.".....(Snip)
Mr. Shapiro is legal director of the American Civil Liberties Union.

. . . Or a Sensible Bow to Post-9/11 Reality
The Supreme Court may mitigate the harm of the president's weak antiterror policies.
John Yoo
6/8/10

Television fans know that Miranda v. Arizona requires police to warn a suspect that he has the right to remain silent. But no one knew until last week what sitting quiet after the warning meant. In Berghuis v. Thompkins, the Supreme Court said so.

A suspect's long period of silence (in this case three hours), followed by a reluctant answer to a police officer's question, could amount to either an invocation or a waiver of the right. By choosing the latter, the court performed its function of choosing some rule—any rule—to govern. The rule of law requires a law of rules.

But Thompkins may well mean more than cleaning some smudges on the circus-mirrors of Miranda-world. Miranda creates a universe where police questioning is considered "inherently coercive," in the words of dissenting Justice Sonia Sotomayer (once defended by the Obama administration as a tough prosecutor) and the Supreme Court dictates the very words that police must say to every suspect. Often left unmentioned is the embarrassing fact that the Miranda warnings themselves appear nowhere in the text of the Constitution.

Thompkins may signal that a majority of the court is ready to reconsider this monument to judicial creativity. The court did not claim—nor could it—that the Constitution requires that silence constitute a waiver of Miranda rights. Instead, it found that suppressing a suspect's statements without a clear and unambiguous demand for his Miranda rights "would place a significant burden on society's interest in prosecuting criminal activity," increase burdens on the police, and only add "marginally" to the goal of ensuring that confessions are voluntary.

It is no accident that the court's newfound attitude toward Miranda has arrived during a time of war. Just a decade ago, in Dickerson v. United States, a 7-2 court rejected Congress's attempt to restore the law that had prevailed for the previous 70 years—confessions would be suppressed if they were not "voluntary" under the circumstances. Dickerson confidently dismissed the argument that the Miranda warnings were only judicially invented rules to govern the admission of testimony at trial. Instead, Chief Justice William Rehnquist declared that Miranda flowed from the Fifth Amendment's right against compelled self-incrimination.

What a difference September 11 makes. The Miranda issue symbolizes President Obama's restoration of the terrorism-as-crime paradigm that prevailed before the 2001 attacks.....(Snip)

But the Obama administration has the ACLU worldview so hardwired into its DNA that it cannot think outside the criminal-justice framework. Rather than consider al Qaeda agents to be enemy combatants, Attorney General Eric Holder has called for legislation to expand the "public safety" exception to Miranda, which allows police to question without warnings to stop immediate threats of crime. Our nation's top law-enforcement officer, who criticized Arizona's controversial immigration law to Congress without reading it, can add Dickerson to his summer reading list. The Supreme Court has made clear that the judiciary will dictate the scope of Miranda, not Congress.

Dickerson reveals the administration's Miranda proposal as an empty ploy to defuse the rising opposition to its terrorism policies. But it is of the worst kind, for the gesture signals weakening American resolve before redoubled terrorist attacks.

It may well be the Supreme Court that rides to Mr. Obama's rescue. Even as it rejects the administration's symbolic terrorism legislation, the court's new flexibility may lead to its own Miranda modifications to ease the burdens on our military, intelligence and police. That would give the administration more flexibility to fight terrorism within the criminal-justice paradigm, though at the expense of weakening the civil liberties of all Americans. It would also clear the field for Mr. Obama to rise or fall on the merits of his own policies, and not those of the courts.

Mr. Yoo is a law professor at the University of California, Berkeley. He was an official in the Justice Department from 2001-03 and is a visiting scholar at the American Enterprise Institute.