an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
This morning, the Supreme Court held in Berghuis v. Thompkinsthat a suspect can waive his Miranda rights by failing to affirmatively invoke his right to remain silent (even if, as Justice Sotomayor's dissent suggests, such a statement would be self-defeating). Thus, when Thompkins answered questions asked hours (here, three) into an interrogation during which he had otherwise been silent, the introduction of those answers at trial did not violate Miranda.
Perhaps it's just me, but I couldn't help but thinking as I read through Justice Kennedy's opinion for the majority that the ongoing debate over Miranda's applicability to terrorism cases is one of the (perhaps many) elephants in this particular room. Consider, for example, the following passage (from page 15 of the slip opinion), where Kennedy rejects the argument that Thompkins' statement was coerced:
It is true that apparently he was in a straight-backed chair for three hours, but there is no authority for the proposition that an interrogation of this length is inherently coercive. Indeed, even where interrogations of greater duration were held to be improper, they were accompanied, as this one was not, by other facts indicating coercion, such as an incapacitated and sedated suspect, sleep and food deprivation, and threats.
And elsewhere, the majority was at pains to emphasize that a suspect's unwillingness to speak for most of an interrogation does not of itself suggest an invocation of his right to remain silent. (E.g., "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. Police are not required to rewarn suspects from time to time."). These passages struck me as everything short of an invitation to law enforcement officials to continue to question suspects for far greater than three hours, just so long as there was "otherwise" no coercion. Whatever the merits of such a rule, its potential utility in terrorism cases, where suspects have often not spoken for long periods at the beginning of interrogations, seems obvious.
As the facts of Thompkins itself suggests, this holding isn't in any way limited to terrorism cases. As importantly, the controversy that was re-ignited after Faisal Shahzad's failed Times Square plot is largely about questioning prior to the provision of Miranda warnings. But it seemed worth asking if there's anything in Kennedy's opinion that might bear on the rumored-to-be-forthcoming Obama Administration proposal to "codify" the public safety exception to Miranda, which allows un-Mirandized statements to be admitted in extreme cases where exigent circumstances justified the warning-less interrogation.
Of course, it's difficult (and foolish) to handicap any such proposal until its details are more apparent, but I'll just say briefly that I think that there's actually very little in Thompkins that cuts one way or the other. For starters, there's a marked difference between how the Court itself understands and tweaks Miranda (as in Quarles, the case articulating the "public safety" exception), and how it views Congress's power to do so (as in Dickerson).
Moreover, even though one might think that Thompkins gives the government the flexibility that is arguably behind the move to codify Quarles, I don't think that argument holds any water. After all, Quarles is about the ability to interrogate suspects before advising them of their Miranda rights. Although today's decision allows the government to continue to question suspects after they have been advised of their rights (and to use later statements against them) notwithstanding the suspect's silence, it still requires the Miranda warning in the first place. For those who believe the government both can and should have the ability to interrogate terrorism suspects without Mirandizing them, and then introduce statements obtained during that interrogation at trial, nothing in Thompkins changes that calculus in any way whatsoever.
Thus, if the running debate over Miranda's applicability to terrorism cases was in fact lurking in the background, the Court's (otherwise troubling) decision today seems to me to have done decidedly little to change the--considerable--stakes...
Will Thompkins revive the recently cancelled "Law & Order" TV series by providing new story lines to Dick Wolf with new variations on Miranda rights as the Patriot Act did after 9/11?
Perhaps requiring visual recording of all police interrogations will be necessary to make sure that the new "Carmen" Miranda rights are fairly enforced.
Should the content of the new Miranda rights be modified to make it clear that an affirmative response is required or can that be finessed? Might such modification include language that indicates that an affirmative response by the suspect may - or may not - be used against him/her?
Might Thompkins revive pre-Miranda sloppy police work in lieu of good investigation?
Justice Sotomayor provided her first major dissent here, which at various points provided a more realistic argument on how to truly enforce the protections in question. The citation to an earlier opinion by Souter is also worth checking out.
I agree that there appears to be nothing in Thompkins (based on my skimming) that directly bears upon Congress's authority to codify and define the public safety exception. I believe that the Court's precedents, particularly Quarles itself, leave Congress room to define the circumstances under which the public safety justifies non-Mirandized interrogation of terrorists in order to identify and pre-empt potential attacks. (I have blogged about this at some length at www.pointoforder.com).
In today's WaPo (6/4/10) Philip Mudd has some interesting observations in his OpEd "Mirandizing Terrorists: Not so black and white."
I last handled a directly criminal case back in the 1960s. Criminal law was not in the cards for my legal career. But I admired attorneys who zealously defended their clients, especially those who were poor, uneducated, etc. The Warren Court provided various protections that in fact resulted in better police investigations to obtain evidence that could stand up in court that did not result from questionable and murky techniques. In more recent years, Law and Order, CSI, etc, presented many nuances of Miranda rights. The law was fairly settled until post 9/11 with interrogations of terrorist suspects. The post 9/11 fears have now been extended to "ordinary" criminal suspects perhaps to make sure that terrorist suspects can be interrogated more so than in the past.
This post wonders if Thompkins connects to Shahzad. Presumably we'll soon find out. But in the meantime, what about "ordinary" criminal suspects? This is only the fourth comment on this thread. I would have hoped that attorneys who represent "ordinary" criminal suspects would be heard from about the full impact of Thompkins? Why are they silent (at least at this Blog)? Not all "ordinary" criminal suspects are guilty. Yes, they have the paper protection of reasonable doubt. But will we now revert to the days of lazy, shady police techniques to get a confession, an admission, in the back rooms of police stations?
The public response seems silent as well. Perhaps this is attributable to the public's exposure to Law and Order, CSI, etc, that I also plead guilty to watching. But as I have watched, it has been with some experience (limited as earlier noted) that the Miranda warnings given and the subsequent questionings are dramatic literary devices for 50 minutes of drama. I wonder what the public reaction would be to a three hour TV crime show depicting the situation in Thompkins, assuming the public could stay awake? How realistic was justice Kennedy's commentary on a "mere" three hours of Thompkins sitting in a chair until breaking his silence? What if there had been a video of this three hours - would Justice Kennedy or the other Justices have watched it with rapt attention - or might that be cruel and unusual?
Yes, I realize that this post is more about Shahzad. But aren't there lawyers who represent "ordinary" criminals out there who have something to say about Thompkins?
Your posing is very nice I Like your story of Thompkins Shahzad. I believe that the Court's precedents, particularly Quarles itself, leave Congress room to define the circumstances under which the public safety justifies non-Mirandized interrogation of terrorists in order to identify and pre-empt potential attacks thanks by student aid.