“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.