With barely an opportunity to catch our breaths following the issuance of the Maryland v. Shatzer decision, the 14 days out of thin air shelf life for invocation of the right to counsel, another big Miranda case looms on the horizon. Oral argument in Berghuis v. Thompkins comes this Monday.
Berkeley Lawprof Chuck Weisselberg wrote a great assessment of Berghuis v. Thompkins for HuffPo.
In the Michigan case, Berghuis v. Thompkins, officers gave Van Chester Thompkins the Miranda warnings. But instead of asking if he would give up his rights and speak, police just began interrogating. Thompkins kept largely silent for close to three hours while officers tried different tactics to get him to talk. He eventually succumbed and made a statement. A federal court threw out the statement, finding that Thompkins did not waive his rights. Michigan has appealed.
This is kinda the “don’t ask, don’t tell,” version of Miranda. The way it was intended to play out, the officer would pause after reading each line off his laminated Miranda card and ask, “do you understand?” The suspect responds yes, and the officer then, at the end, asks if the suspect wishes to make a statement or if he wants to speak with the police. Of course, this is the sanitized version, as would be offered in testimony. It doesn’t include the threats and psychological manipulation designed to thwart free will that is rarely mentioned during the officer’s direct testimony, and is routinely and sincerely denied on cross.
One interesting twist in this case, as Chuck notes, is that the Obama Justice Department had no necessary role in the case, yet made the choice to insert itself on the side of Michigan.
The US Solicitor General is joining Michigan in aggressively attacking Miranda. In 1994, the Court held that if suspects initially waive their rights and agree to talk–but later change their mind and want to see a lawyer–they must say so clearly and affirmatively. The Solicitor General now wants to extend this ruling to the very start of interrogation. Under this approach, there would be no “time out” prior to interrogation for suspects to decide whether to speak. Instead of requiring police to obtain a waiver, suspects would have to stop an interrogation that has already begun. Ironically, people would have to speak in order to claim their right to remain silent.
This position appears more hostile to Miranda than any taken in the Supreme Court by previous Democratic Administrations.
As a fan of the proposition that suspects exercise their right to remain silent, I cannot help but appreciate that this case arises during an administration of hope and change. Can you imagine how much more awful the Solicitor General’s position would be under a conservative regime. I can’t.
After sharing a heartfelt laugh over the fact that clients, no matter how many times lawyers tell them, just can’t manage to say the magic words (and Ken at Popehat offers his own variation on this theme, Rule 1: Just Shut Up), Chuck sent over a brilliant form to provide our clients to assist them in this perpetually problematic task. It’s called the Assertion of Rights form.
ASSERTION OF RIGHTS FORM
TO ALL LAW ENFORCEMENT OFFICERS, AGENTS AND GOVERNMENT PERSONNEL:
I, ________________________________________, am represented by attorney ______________________________________.I hereby assert my right to remain silent.I want to see my lawyer now.I do not wish to answer any questions.
ALL LAW ENFORCEMENT OFFICERS, AGENTS AND GOVERNMENT PERSONNEL SHOULD SIGN THE ACKNOWLEDGEMENT OF ASSERTION OF RIGHTS, BELOW:
ACKNOWLEDGEMENT OF ASSERTION OF RIGHTS
I acknowledge that I have read and understood this Assertion of Rights form, and that _________________________________ wishes to consult with his attorney and does not wish to answer any questions.
Agency:_____________ Name (print):__________________________
Chuck tells me that he borrowed the idea for this form from another lawyer, Jodie English he believes, and that she told him that “was once mailed back to her by an officer, ripped up into tiny pieces.” How much better could it get? If you don’t love this form, you should immediately start searching for a job practicing transactional law. And if you do, think about what a wonderful Christmas gift this would make for your clients, with names already filled in so that they can’t screw it up. Well, at least the names part, anyway.
All of this Miranda squabbling, with the Supremes doing everything in their power to water down, undermine, negate the rule so that they can pretend to maintain its prophylactic purposes while turning it into a minefield for the unwary, one point persists and resolves every issue that has or will arise from each new tweak: Invoke your right to remain silent and your right to counsel. Invoke it each and every time a cop tries to question you, whether a few hours later or 14 days later.
Or, if the word “invoke” confuses you, the simpler version will suffice. Just shut up.