Kiss freedom goodbye, the Supreme Court has screwed you again

It sounds for all the world like the irascible Queen of Hearts in Alice in Wonderland: “If you want to remain silent, you must speak up!” Sadly, it's the considered opinion of five real-life men in black robes — a majority of the U.S. Supreme Court's nine justices — making their latest ruling on a suspect's Miranda rights, the most famous warning in American jurisprudence.

As usually delivered, it goes: “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed to you. Do you understand these rights as they have been read to you?” Until last week, it was up to the government to demonstrate that a suspect had understood that warning and had knowingly waived his right against self-incrimination. Often, a suspect signed a form to that effect, but it was not required.

With this latest decision, Justice Anthony Kennedy wrote for the majority that a suspect must now invoke the right to remain silent “unambiguously” and police are not required to obtain a written waiver before questioning him. In other words, to remain silent, as is a suspect's right, it is no longer enough to remain silent. The burden is now on the prisoner — not only to speak up, but to do so with absolute clarity.

That's just not right: It weakens the safeguards of Miranda and puts an unfair burden on the suspect. As recently appointed Justice Sonia Sotomayor wrote in her spirited minority opinion, this decision “turns Miranda upside down,” not only because it requires a suspect to speak to invoke the right to silence, but because “at the same time, suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so.”

In the case on which this decision was based, Berghuis v. Thompkins, Van Chester Thompkins was charged with murder, was read his rights and refused to sign a form saying he understood those rights. Interrogated for almost three hours, he largely remained silent, until he was asked a self-incriminating question to which he answered “Yes” and was convicted largely on the strength of that one word.

On appeal, his conviction was upheld, but was later reversed by another appeals court that ruled the “Yes” should not have been allowed because, by remaining silent for so long, he had implicitly invoked his Miranda rights. The Supreme Court reversed that decision.

This raises more questions than it answers: Wouldn't it be simpler for the court to clarify exactly what a suspect must do or say to “unambiguously” invoke Miranda rights? Couldn't police officers ask outright, as Sotomayor suggested, “Do you want to talk to us?” And wouldn't it be helpful to know how long a silent suspect can be questioned before it becomes coercion? (Two hours and 45 minutes seems an unconscionably long time to continue what one detective called a “monologue” in the Thompkins interrogation.)

The inescapable conclusion is that these five justices — the reliably conservative bloc of Kennedy, Chief Justice John Roberts and Justices Antonin Scalia, Samuel Alito and Clarence Thomas — had no intention of clarifying Miranda, but preferred to give as much leeway as possible to law enforcement officers over the rights of individuals.

“Off with their heads!” indeed.

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