Berghuis v. Thompkins

The Supreme Court issued Berghuis v. Thomp­kins today. In it they held that a defen­dant must make an affir­ma­tive invo­ca­tion of his or her right to remain silent and to an attorney.

Thomp­kins, the defen­dant, was sub­ject to a 3 hour inter­ro­ga­tion in an 8 x 10 foot room. dur­ing the entire inter­view, Thomp­kins remained silent — exer­cis­ing his right to remain so. SCOTUS decided that remain­ing silent isn’t enough, a defen­dant must make a “sim­ple, unam­bigu­ous” state­ment such as “that he wanted to remain silent or that he did not want to talk with the police.” (page 10 of the major­ity opin­ion) and that fail­ing to make such a state­ment meant that he did not invoke his right. To remain silent. By remain­ing silent.

The court then decides that remain­ing silent for nearly 3 hours and finally giv­ing a mono­syl­labic response is “suf­fi­cient to show a course of con­duct indi­cat­ing waiver.” (page 14 of the major­ity opinion)

Among the ridicu­lous­ness of this deci­sion — and I believe it is ridicu­lous — the thing that strikes me the most is the way the court ana­lyzes the issues. The Miranda warn­ings exist to inform defen­dants of their rights, and the options open to them. They are asked whether they under­stand the rights, so the warn­ing is obvi­ously for the defen­dant. So why does the court (and I’m not lim­it­ing this to Berghuis, it applies equally to ear­lier cases such as Davis, which this opin­ion relied upon) assume that the defen­dant knows he must break his silence imme­di­ately after being told that he has the right to remain silent?! Change the #$!@#& word­ing of the warn­ing! Every­thing else in the opin­ion stems from that sim­ple idi­otic assump­tion. Waiver only comes up since the court found that Thomp­kins never invoked his right to remain silent.

I know I’m not adding any new or bril­liant analy­sis, but I had to get that off of my chest.

Published on 06/01/2010 3:28 pm.
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Thoughts on Maryland v. Shatzer

The Supreme Court recently ruled that there is a 14 day time limit to a defendant’s Miranda rights.
Scott Green­field has writ­ten about it, as has Orin Kerr.

Details »

Published on 02/25/2010 10:23 am.
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The Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin

Let me give you some back­ground about myself: I’m more attuned to absorb broad knowl­edge than deep under­stand­ing. I can work at truly inci­sive wis­dom about a topic, but my default mode is sound-bites and head­lines. What can I say, at least I rec­og­nize it. For that rea­son, I was aware of some Supreme Court nom­i­na­tions and cases that came and went, but I had no more than a vague aware­ness that they were there.

Jef­frey Toobin’s The Nine: Inside the Secret World of the Supreme Court was a fas­ci­nat­ing read. It gave me his­tor­i­cal and legal back­ground about the major Supreme Court cases of my time. It gave me his­tor­i­cal and polit­i­cal back­ground about the Supreme Court jus­tices of my time. I found the style engag­ing and inter­est­ing, if a bit long winded. There were entirely too many occa­sions when I said to myself, “haven’t I read this before?” How­ever, Toobin repeated entire pas­sages for rea­sons — obvi­ously he didn’t repeat him­self by mis­take — and it’s a nit-pick when view­ing the entirety of the work.

There are crit­ics of Toobin who claim he is too par­ti­san one way or another; too pro or con one jus­tice or another. I know that the Volokh Con­spir­acy in par­tic­u­lar has issues with his views. They are prob­a­bly right, but I wasn’t expect­ing an eru­dite trea­tise on con­sti­tu­tional law; I was expect­ing a descrip­tion of the Supreme Court, and that’s exactly what I got.

Published on 02/19/2009 6:11 pm.
Filed under: blawg Tags: , , , , ,