A Christian Burial, Redux

“Do you pray to God to forgive you for shooting that boy down?”


We’ve been down this road before.  Every law students studies the 1977 decision of Brewer v. Williams, where the defendant invoked his 6th Amendment right to counsel.  Yet police continued to try to get Williams to talk, manipulating him with an appeal to his deep religious beliefs, that the parents of the young girl he murdered should be able to have a Christian burial.  Williams led police to the body.

Much is packed into the Supreme Court’s  Berghuis v. Thompkins decision,  Much surrounds it.  It’s a 5-4 decision, thus leaving the rights protected by our Constitution in the hands of a single individual, Justice Anthony Kennedy, whose individual views more than any other dictate the fundamental law of the United States of America.  There was Elena Kagan, whose path from Harvard to the Supremes included her request to step into this case where she was neither needed nor wanted, to take an extreme position against the maintenance of individual rights

The way it’s told, the decision is ironic in that a defendant is required to speak to remain silent.  Putting in these terms makes it almost cute, not to mention silly.  It isn’t as vast a departure from our understanding of the tortured use of Miranda to protect police interrogations as some suggest.  Before this decision, defendant’s were required to invoke the right to remain silent or the right to counsel in a clear and unambiguous way.  This alone tripped up most defendants who were otherwise disinclined to heed the warnings.  Most defendants heard and understood the warnings clearly, and talked anyway. 

The change of Berghuis is that a clear and unambiguous invocation of rights now requires a defendant to express it verbally.  He must say something to invoke.  What he says must be a clear and unambiguous invocation, but it isn’t enough to refuse to speak for three hours.  The sweet talk of Johnston v. Zerbst, that it wasn’t the defendant’s duty to invoke, but the government’s duty to prove waiver, is a faint memory.  But the default shifted from the government to the defendant long ago.  Now, they’re only working out the details.

This decision also offers a wonderful example of how courts discuss our constitutional rights in terms of precedent, then inexplicably shift direction as if we were blind-folded, spun around and will have neither idea nor concern how we ended up facing the other way.  The majority will repeat the black letters written by justices long gone, then arrive in a place that can’t be reached from there. 

Slaves to intellectual honesty will be appalled, but it’s not like they overruled precedent, which would get the academics all atwitter.  They just conveniently put it behind the firewall of choices.  The police played the Miranda game by giving the warnings.  The defendant simply made the choice not to invoke his rights.  The obligation of the police to show waiver, rather than the defendant to show invocation, fell by the wayside.  Six of one, half dozen of the other. 

It wouldn’t mean a thing if people would simply learn how to properly invoke their right to remain silent and right to counsel.  Criminal defense lawyers spell it out clearly for people all the time, yet they seem to perpetually have a problem with it.  The Supremes shrug.  Why should it be the cops’ fault that people just can’t seem to get it? 

Just as the Miranda court assumed that its ruling would be the end of confessions obtained by custodial interrogations, subsequent courts have learned that people just can’t stop themselves from talking when the police inquire.  Some believe they can talk their way out of their problems.  Rarely does that work, but whenever that’s said, someone will tell the story of how they did it and walked away froom custody.  Others try to invoke, but in their effort to be polite, or at least not antagonize police, they fail to make it clear and unambiguous by using such tepid phraseology as “I think I should speak with a lawyer before answering any questions.”  As courts tell us, who the heck knows what that means.

And the little appreciated corollary to the problem is that deception, otherwise known as bald-faced lying, is an effective law enforcement tool.  By using the word “effective”, it somehow trumps whatever rights are trampled in the process.

Berghuis v. Thompkins is a decision by Justice Kennedy that somebody has to be the one responsible for saying the magic words, and he thinks it ought to be the defendant, since the defendant is the one least capable of doing so and it’s better for law enforcement, it’s more effective, to get confessions than not.  By allowing people to invoke their rights, if they know the magic words and can manage to get them out properly (and the cops scribble them down accurately when writing their report the next day), they have a chance of safeguarding their constitutional rights.  That’s good enough, even if most will be incapable of doing so. 

As for the promise of the 5th and 6th Amendments, the protection of rights that Miranda v. Arizona had in mind, which now lasts only 14 days at best, it was stillborn.  The sweet words of precedent did nothing to help defendants to overcome the coercion, manipulation, lies and pressure to hear their rights and still utter the words that would convict them.  It provided an easy shield for the police that never worked as a sword for the defendant.  It was dead on arrival.

All Miranda needs now is a decent Christian burial.

21 comments on “A Christian Burial, Redux

  1. Laura from Cabo


    I need to read the opinion, but was suprised to read the Sotomayor wrote the dissent. My sense of her was as a statist and very pro-police and executive branch based on her record on the 2nd Cir. Obama clearly loves executive authority at least as much as any prez., maybe more than most, and Elena Kagan is right up his alley.

    Question: I was confused by the first sentence of your last paragraph. What does the 14 days refer to?

  2. SHG

    The “14 days” is a reference to the decision in Maryland v. Shatzer.  I’ve added in a link to clarify.

    I was surprised by Sotomayor’s dissent as well.  When did she get religion? It certainly wasn’t there when she was on the circuit.  Of course, she knew she was writing for the dissent, which offers a freedom that the majority rarely enjoys.  Or maybe this is the benefit of being a Supreme; there’s no next job down the line, so no reason to toe the line and hold back one’s true beliefs.  I dunno.

  3. Slack-wa-zee

    This does represent a pretty substantial change on the ground. Dealing with less-than-sophistocated clients, I had always encouaged silence as the best way to exercise 6th amendment rights. I had seen too many people who fucked up while trying to invoke or were tripped up by the police while trying to invoke.

    It’s easy for SCOTUS, looking at a single, sanitized casefile to imagine that defendants are presented with clear choices and make a rational decision which they can express clearly and which will be respected, but more often than not that isn’t the case. Most defendants don’t understand the Miranda warning, and even when they try to ask for a lawyer or state that they do not want to answer questions, they do not do so unambiguously (or, more to the point, they cannot do so in a manner in which the police cannot find some ambiguity).

    That’s why defendants here had always been told that the best way to invoke your 6th amendment rights was to say nothing. The moment you tell a scared, rattled, disoriented, possibly inebriated defendant that he needs to say SOMETHING to the police, you are inviting an ambiguous interpretation of his statement. I had always felt that silence was the best option. Now, obviously, I’ll have to change my STFU speech.

  4. Brian Gurwitz

    Speaking of Christian burial, a little nugget in the majority opinion that’s received little notice was Kennedy’s dismissal of the officer’s use of religion to get the defendant to “confess” to the crime. The court says (and I paraphrase) that the cop’s conduct was of no moment since the Fifth Amendment is concerned only with official compulsion, not the compulsion one feels from a higher power. So a cop channels God to induce a confession and that isn’t official compulsion. Nice. Next step: use of a gun to the head isn’t official compulsion, it is the compulsion of the private corporation that manufactured the firearm.

    At least in California, use of religious exortations to induce a waiver or confession was a no-no. There goes that argument.

  5. SHG

    It’s comments like this that make me appreciate that you’re an editor rather than a lawyer.

  6. SHG

    Wow.  My reference to the Christian burial case must have been purely fortuitous. How lucky am I?

  7. Dan

    Is there any other constitutional right where you have to announce that you’re exercising that right in order to exercise it? Do I need to put a sign outside my house that says no soldiers may be quartered here?

  8. Chuck

    Nice post, Scott.

    I’m not yet joining your “Trench Lawyer” movement, but it is really interesting to see how the majority has zero sense of the way that interrogations are really conducted. There is this image of an interrogation as a casual conversation between equals, free of any pressures, power-differentials or other influences. Sotomayor’s dissent at least reflects some understanding of police practices. Kagan has no insight into police or practices on the ground.

    It is also interesting to think about Brewer v. Williams, the 6th Amendment burial speech case, with this Court. Today he’d lose about 15 different ways. His invocation of the right to counsel was on kidnapping not murder charges, and the 6th A is offense specific. Texas v. Cobb. Even if he had a 6th A right, officers can still question him. Montejo v. Louisiana. And even if his invocation of the right to counsel was clear enough to satisfy Berghuis v. Thompkins, the physical fruits (the body of the deceased) still comes in. US v. Patane.

    It is all coming back to voluntariness, isn’t it?

  9. SHG

    Hey Chuck.  I’m not clear that they are as clueless as they seem about life in the gutter, or they merely prefer to write for the fantasy world, since reality is so darn yucky.  Does Kagan have any sense of it?  Probably less than an appellate judge, who has less than a trial judge, who has less than a trench lawyer.  But trench lawyers are vulgar, dumb and dirty, and we would never get through the Senate anyway.

    Your analysis of Brewer today is spot on.  It’s judicial entropy, law to order, as exceptions, excuses and rationalizations rip rights to shreds.  If I seem less than overwrought about it, it’s because I don’t believe any testimony at a suppression hearing; where every interrogation sounds like it’s straight out of the manual.  It’s the same reason I take the facts of an appellate decision with a grain of salt, knowing how all the inconsistent facts magically disappear from the final cut.

    Since we’re not going to straighten this out on appeal, maybe a broader public service campaign will help to reach the public.  I kinda like the idea of Invoke Miranda t-shirts, sunglasses and flip-flops.

  10. Chuck

    Nice to hear your point about not believing testimony at suppression hearings. Berghuis v. Thompkins was a chance for the Supremes to do something about that in some small way. The interrogation was not recorded and the officers had no contemporaneous notes of the interrogation. All they could specifically remember him saying in the first 2 3/4 hours was that his chair was hard and something about not wanting a peppermint. The Court could have said that, on this record, the State couldn’t meet its burden of showing waiver. It might have given a nudge to the movement towards recording. But finding waiver on this record is truly depressing.

    When do we start selling the t-shirts?

  11. SHG

    I was preparing for a Mapp hearing, knowing that the 911 call directed the cop to 411 South Street, and he went to 411 South Road instead.  I was ready to slam him, chew him up and spit him out.  His direct came:

    Q.  And did you go to 411 South Street?

    A.  No. I don’t know what I was thinking, but I went to 411 South Road instead.

    Q. And that’s where you encountered the defendant?

    A. Yeah, he was walking out of his apartment and I grabbed him and took the bag containing the ten kilos of cocaine.

    Q.  And was there any reason why you grabbed him and seized the bag?

    A. Nope.  No reason at all.

    When he got off the stand (without cross), I went over to him and told him that no cop had ever screwed me up more than he just did.  “What am I supposed to do with you?  You told the truth.”  He laughed at me.  He won.

    Aside from that hearing, I could recite the police testimony in my sleep.  It’s always the same.  It’s a miracle.

    You don’t like the flip flops?

  12. SHG

    Oh, I KNOW.  It’s a nightmare, and then they give you your moca-coca-choca-frappucino with non-dairy whipped cream. It’s just awful.

  13. Lee

    This advice remains accurate. Silence followed by silence followed by silence is an invocation of the right to remain silent. It doesn’t stop the questioning, but it doesn’t produce a statement that can be used against you. Most cops on most cases aren’t this patient and during the three hours they spend asking a wall questions, maybe other leads are going cold.

  14. Lee

    I’m against the clothing. Too temporal. Since I have clients who like to tattoo things like “FUCK YOU” on their eyelids or “TRUST NO BITCH” on their forehead, how about “I AM REFUSING TO ANSWER ANY QUESTIONS WITHOUT MY LAWYER PRESENT” right across the butt cheeks? As long as there wasn’t a plunger in the room, it would be a fantastically clear invocation…then you fart into the recorder and ask the cop, “did you get all that?”

  15. SHG

    Absolutely.  Then they will just have to make the statement up, and thankfully, that never happens.

  16. Lee

    There you’ve just got to remember the serenity prayer. At some point, if the cop is just willing to spin it out of whole cloth, not much we can do individually.

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