Gandhi's first act of civil disobedience on June 7, 1893
Gandhi's first act of civil disobedience on this day in 1893. In an event that would have dramatic repercussions for the people of
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Most people believe that if the police arrest you, they have a good reason to do so. If the police arrest you, they know you did it, whether or not they can prove it. If the police arrest you, maybe you can “get off” somehow with a trick or a slick attorney but you are the manipulator, playing fast and loose with the truth. And if you confess well, you undoubtedly did “it” and the rest is a big game and represents the “problem” of the criminal justice system- just read your morning newspaper.
Sadly, this has now become the view of the Supreme Court in their latest decision gutting the decision in Miranda v.
People don’t believe it, but false confessions happen. In a recent case of mine, a client fully confessed to a murder that someone else had committed. With the stress of the interrogation, fear of retaliation from the actual murderer, and a promise to be released by the detective, an audiotape recorded a confession that landed my client in the city jail facing a homicide charge, all with the wrong person arrested.. As other witnesses came forward and identified the actual killer, doubt after doubt was cast on the statement. To the credit of the detective and the prosecutor in the case, investigation continued and ultimately the charges were dropped but only after months of pretrial incarceration.
In an interrogation room, it is the police that have control. They usually have custody of the person they are interrogating. The police control where the interrogation is conducted, how long it is conducted, and whether the suspect gets food, water, or a chance to use the restroom. The police are allowed to use psychological tactics to get the suspect to talk and to lie about the evidence they have if that serves their purpose.
Before the Supreme Court decided Berghuis v. Thompkins, last week, the police had to notify the accused of his rights and ensure that the person being interrogated waived those rights to go forward with an interrogation. It gave the person being questioned a clear and unambiguous opportunity to end the interaction and consult with an attorney before going forward. After Berghuis, any ambiguity about whether the suspect waived his rights to speak to the police will be resolved in favor of the police. The police don’t have to ensure you actually want to speak with them before going forward with an interrogation. The facts in Berghuis illustrate the problem.
Van Chester Thompkins was arrested in
Now one would think that the best way to exercise your right to remain silent is well, to remain quiet and to say nothing and that is exactly what Mr. Thompkins did. He didn’t answer any questions in the first ten minutes, the first hour, or the second hour. Almost three hours into the questioning, the conversation turned to religion. Mr. Thompkins admitted that he believed in God, and that he prayed to his God for committing the murder. It was this last statement that was the basis of the case against him.
If someone doesn’t respond to your questions for over two hours, I think almost anyone would agree, that whatever is going on, it isn’t a mutual voluntary conversation. The Supreme Court concluded to the contrary however. As long as the suspect doesn’t say the magic words “I wish to remain silent”, the questioning can continue, and it is unclear how long the police will be allowed to keep going, four hours of silence, six hours, eight hours, more?
In an effort to assist the police, and at the expense of Miranda, the Supreme Court has reached the absurd, sordid, and novel conclusion that in order to assert your Constitutional right to remain silent, you can’t remain silent, you have to assert your rights by not being silent- without the interrogator telling you about the choice. The lesson for the police is simple. Don’t ask whether the person you are questioning actually wants to speak with you, just beat them down until they tell you what you want to close your case. The highest court in the land has your back.
The innocent, the poor, people of color, left wing activists, well, make sure you say the magic words “I am asserting my right to remain silent” because the highest court in the land isn‘t looking out for you. It is still your Constitutional right, but obfuscation by the police is fine- at the expense of the rest of us, or a least those of us who still believe in the Bill of Rights.