Tuesday, June 01, 2010
Is Thompkins About Shahzad?
This morning, the Supreme Court held in Berghuis v. Thompkins that 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.
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.
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