In their decision regarding Berghuis v. Thompkins, the Court’s majority has decided that a suspect’s three-hour silence does not constitute an invocation of his right to remain silent, while opening his mouth after three hours of silence — to answer a trick question posed by inquisitors — constitutes a waiver of that right. It strains credulity.
Justice Sonia Sotomayor, in the sharpest dissent of her young career on the court, accused the majority of casting aside judicial restraint and creating a rule that marks “a substantial retreat from the protection against compelled self-incrimination” that Miranda established more than 40 years ago.
From the original majority opinion in Miranda:
If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease…
Suspect Van Chester Thompkins remained mostly silent for three hours of interrogation after reading and being told of his rights to remain silent and have an attorney.
“Today’s decision turns Miranda upside down,” Sotomayor wrote. “Criminal suspects must now unambiguously invoke their right to remain silent, which, counterintuitively, requires them to speak.”
Given the mass exodus of the wrongly-convicted from our prisons since the emergence of reliable DNA testing, it seems to me we should be focusing on something other than running up the score of coerced confessions — notoriously a feature of many of these botched convictions.
Instead, we’re fast moving towards a time where, yes, you can have your rights, but only if you jump up and down on one foot with your eyes closed while reciting the alphabet backwards. If you can’t do it, you’re obviously guilty — or at least a good prospect for conviction; and that’s what counts, isn’t it?
With each decision, it is becoming more clear that the conservative majority on the Court, displaying an astonishing hubris, believes that every previous Supreme Court (in this specific case, the court of Chief Justice Earl Warren, joined in the majority by Justices Black, Douglas, Brennan, and Fortas) was misguided, misinformed, or acting in bad faith on behalf of some shadowy and as-yet-unexplained malevolent force, and that their mission is to undo all the imagined wrongs of these Courts and remake American law in the image that ancient fears, hatreds, and biases — as well as an entirely misappropriated idea of the framers’ intent — have created in their little heads.
It’s also becoming more clear to me with each decision that the beliefs and ideas of the Supreme Court’s conservative majority are exactly what the Constitution and a strong and principled judiciary were designed to protect against.