By Robert Barnes
Wednesday, June 2, 2010; A05
Criminal suspects should speak up if they want to preserve their right to remain silent, the Supreme Court ruled Tuesday. Conservative justices ruled for police in the latest test of the court's famous Miranda rule and shifted the burden to suspects to invoke their right to refuse questioning.
The court ruled 5 to 4 that a Michigan defendant who incriminated himself in a fatal shooting by saying one word after nearly three hours of questioning had given up his right to silence, and that the statement could be used against him at trial.
"Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent," Justice Anthony M. Kennedy wrote for the majority.
The decision prompted the most vigorous dissent of new Justice Sonia Sotomayor's young career at the court.
"Today's decision turns Miranda upside down," wrote Sotomayor, who accused the majority of casting aside judicial restraint. "Criminal suspects must now unambiguously invoke their right to remain silent -- which, counter-intuitively, requires them to speak. 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."
Thanks to television cop shows and movies, the Miranda warning may be one of the court's best-known creations. But ever since the 1966 ruling in Miranda v. Arizona, the court has been defining how the right to remain silent and to counsel protects a suspect, and limits prosecutors' use of anything said during interrogation. Most recently, it has provoked controversy about whether terrorism suspects should be afforded such rights.
In the case before the court, suspect Van Chester Thompkins was read his rights and, at police request, repeated some of them out loud. But he did not sign an offered waiver of the right, and he did not acknowledge that he was willing to talk. Nor did he say that he wanted the questioning to stop.
Detectives persisted in what one called mostly a "monologue" for about two hours and 45 minutes, until one asked Thompkins whether he believed in God. At a follow-up question -- "Do you pray to God to forgive you for shooting that boy down?" -- Thompkins answered "Yes" and looked away.
The statement was used against him, along with other testimony, and Thompkins was convicted of killing Samuel Morris outside a strip mall in Southfield, Mich.
The U.S. Court of Appeals for the 6th Circuit said that Thompkins's prolonged silence "offered a clear and unequivocal message to the officers: Thompkins did not wish to waive his rights."
But Kennedy said it was not clear enough. "If Thompkins wanted to remain silent, he could have said nothing in response to [the detective's] questions, or he could have unambiguously involved his Miranda rights and ended the interrogation," wrote Kennedy, who was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.
"The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver."
Kennedy said the court's new rule -- in the case of Berghuis v. Thompkins -- was an extension of the logic in a previous case that said a suspect must affirmatively assert his right to counsel. The court essentially agreed with the position of the government against Thompkins, advanced by Solicitor General Elena Kagan, President Obama's pending nominee to the Supreme Court.
But Sotomayor, a former prosecutor who some had speculated might be less protective of the rights of suspects than other liberals on the court, called the decision "a substantial retreat from the protection against compelled self-incrimination." She was joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer.
It is unclear how often such situations arise. But Jonathan Abram, a Washington lawyer who filed a brief with the court on behalf of the National Association of Criminal Defense Lawyers, called the ruling "significant."
"Until now, suspects walked into interrogation rooms with their rights intact," Abram wrote in an e-mail. "If the police thought a person had waived those rights, they had to prove waiver . . . Miranda has been eroded. Again."
Kent Scheidegger of the California-based Criminal Justice Legal Foundation said the court recognized the "practical realities that the police face in dealing with suspects" and placed reasonable limits on an "artificial rule."
"The rule that really is in the Constitution, that no person may be compelled to be a witness against himself, is not changed by today's decision," Scheidegger said in a written statement.