As of June 1st, it is once again legal in America to trick a confession out of a suspect.
Since 1966, criminal suspects have been constitutionally protected from being browbeaten into incriminating themselves by a ruling titled Miranda versus Arizona. All criminal suspects have a constitutional right not to be compelled into being made a witness against themselves. Until Miranda, that constitutional protection was generally understood to mean that police could not beat a confession out of a suspect. Miranda found that instead of torturing a suspect modern police had started to “persuade, trick or cajole him out of exercising his constitutional rights.”
Consequently, the Court stipulated a set of rules that police had to follow to get a legally admissible confession out of a suspect. These rules have been summarized in the Miranda warning that police are supposed to recite at the moment of arrest. The incantation begins with the statement, “You have the right to remain silent,” and then almost always turns into a sales pitch for confessing anyway. Usually suspects are told they can avoid jail by “coming clean.” Typically police promise “we aren’t really interested in you” or threaten to “tear your house apart” unless you confess. The intention of Miranda was to outlaw these bribes and compulsions.
Tuesday’s Supreme Court ruling in a case titled Berghuis v. Thompkins formally turned Miranda inside out. In one day Miranda was transformed from a constitutional protection for suspects into a constitutional protection for police. Last week police had to prove that a suspect knew and had chosen to ignore his constitutional right against self-incrimination for a confession to be legal. This week a defendant must prove that he was deprived of his constitutional right or his confession will always be valid.
The ruling specifically addressed the appeal of a convicted murderer named Van Chester Thompkins. Thompkins was arrested on suspicion of shooting and killing Samuel Morris in Southfield, Michigan. He was advised of his right against self incrimination and then he shut up. He refused to say anything or sign anything. He did not specifically ask that a lawyer be present and he refused to sign a statement that he had been Mirandized and wished to remain silent.
So for three hours multiple interrogators harangued him until one of them asked him if he believed in God. When Thompkins confessed that he did the interrogator asked “Do you pray to God to forgive you for shooting that boy down?’’
Thompkins confessed to the crime by answering “Yes.”
Judges Argue To And Fro
The Sixth Circuit Court of Appeals ruled that Thompkins confession was inadmissible as evidence against him because his silence for three hours “offered a clear and unequivocal message to the officers: Thompkins did not wish to waive his rights.’’
The Supreme Court overruled the Sixth Circuit by a five to four vote. The majority opinion was written by Justice Anthony Kennedy who said, “If Thompkins wanted to remain silent, he could have said nothing in response to questions, or he could have unambiguously involved his Miranda rights and ended the interrogation…. The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver.’’
The newest Justice, Sonia Sotomayor, called the majority decision “a substantial retreat from the protections against compelled self-incrimination that Miranda v. Arizona has long provided.” She said Miranda reflected “many of our fundamental values and most noble aspirations.” She argued that compelling a suspect under duress to speak in order to remain silent was “counterintuitive.”
Something’s Happening Here
Superficially, Sotomayor’s dissent would seem to indicate that the Obama administration is disappointed in this ruling. After all, Obama is supposed to be a “liberal” with all that implies. He appointed Sotomayor and the Justices who voted in the majority are mostly “conservative.”
Really what this ruling demonstrates is the obsolescence of terms like liberal and conservative and the emergence of a new American tyranny in response to the “terrorist threat.” Sotomayor’s dissent may have simply surprised Obama.
His most recent Supreme Court nominee, Elena Kagan, has served for the last year as Solicitor General and in that official capacity she has written amicus, or friend of the court, briefs in cases in which the Obama Administration felt it had a vital interest. One of those briefs last September argued against limits the Ninth Circuit Court of Appeals had placed on computer searches. It is the Administration’s position that once the police get their hands on your computer equipment, your entire life should be open to official investigation. And, if the police find probable cause on your computer that you have committed some previously unsuspected crime you can be charged with that.
Kagan also wrote the amicus brief that became the basis for Tuesday’s decision in Berghuis v. Thompkins. It was a case in which the Administration would have seemed to have absolutely no stake, but Kagan interjected Obama and herself into Berghuis and wrote “the government need not prove that a suspect expressly waived his rights.”
The Obama Administration is behaving as it is because it is looking for ways to deny constitutional rights to terrorists. Just last week, the Huffington Post reported:
“The White House has been working with Senator Lindsey Graham (R-S.C.) to craft legislation that would restructure the amount of time interrogators can hold suspected terrorists domestically without reading them their Miranda rights.”
“The Obama administration has been pushing the law’s limits, interrogating suspected terrorists such as Faisal Shahzad, the alleged Time Square bomber, for periods of time that legal observers say have been longer than those traditionally granted under the public safety exception. Spokesman Robert Gibbs acknowledged in early May that the president was ‘interested’ in ‘limited flexibility’ with respect to laws governing how and when to read Miranda rights.”
And, the other factor influencing the President’s positions is that practically nobody in the Administration can imagine themselves ever being arrested and grilled. Arrest and interrogation is something that happens to other people. In seeking to deny constitutional rights to terrorists, Obama just assumes that everyone will agree on who is and who is not a terrorist. He seems never to have heard the phrase “terrorist street gang” and he seems unable to imagine the people against whom that phrase is routinely used.