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"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?"
That boilerplate is the Miranda Warning, a staple of police procedural TV pretty much since it was mandated by the U.S. Supreme Court in 1966. This week the Court made the legal shield Miranda offers criminal defendants against self-incrimination a little bit smaller. In a 5-4 decision that divided the justices along familiar lines, the court upheld the murder conviction of a Michigan man who was read his Miranda rights, refused to sign a form that acknowledged he understood them, and then said nothing to the police for about the next three hours. When they asked him, however, “Do you pray to God to forgive you for shooting that boy down?” Van Chester Thompkins said yes. He wound up getting life in prison.
The majority decision, written by Justice Anthony Kennedy and also signed by Chief Jjustice John Roberts Jr. and justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr., while justices Sonia Sotomayor, John Paul Stevens, Ruth Bader Ginsburg, and Stephen ,Breyer dissented, held that suspects who don't explicitly invoke their Miranda rights waive them. Silence alone does not lay claim to a suspect's right to silence.
The Tribune's libertarian columnist, Steve Chapman, is always at his best when he spots constitutional guarantees being cut down to size. He wrote for Thursday's Tribune, "The Supreme Court claims that Thompkins' persistent silence didn't suggest a choice to remain silent. Its logic: How can I know you don't want to talk if you won't say anything? It doesn't occur to the five justices that someone in the grasp of the police, after hours of relentless questioning, would conclude that his right to remain silence was meaningless — that he would be interrogated until he answered."
The Miranda Warning has been around longer than most people who read this have been alive, but it's possible to return to the era when it was being minted. The Oyez Project is a multimedia archive of the Supreme Court that has been in development for more than 20 years under the direction of Jerry Goldman, a professor of political science at Northwestern University. At oyez.org we can listen to the oral arguments in the original case, Miranda v. Arizona. Here's the link.
I've just heard portions of the session, and what stands out is the emotional testimony of Duane Nedrud, representing the National District Attorneys Association, which had filed an amicus brief asking the Court to sustain Ernesto Miranda's rape conviction. This was a different era — it was only two years earlier, in Escobedo v. Illinois, that the Court had declared an arrested suspect had a right to counsel. But what makes the time seem so distant isn't Nedrud's certainty that no good will come of the Court's liberal hankerings. No, it's those hankerings. It's Chief Judge Earl Warren speaking up for the accused.
"If I may use the present case of Miranda as an example," said Nedrud, "the defense admits that there is a voluntary confession. He says that we should not allow this confession because he did not have counsel present, because we would not have been able to convict him because there was no other evidence except his own voluntary statement that his male organ had penetrated half an inch. Otherwise, he would have been acquitted. Is this what we are looking for, to acquit Miranda because he did not have counsel...?"
Justice Abe Fortas asked, "Is it your position that we should overrule Escobedo?
"I do not attempt to say that defense counsel is wrong when they attempt to do the best they can for counsel. This is is our system of justice," Nedrud replied. But it was his experience that when suspects hire lawyers it's on the basis of "who is hot in winning cases, and they are picked almost as if they were race horses, because now they’re winning! There is nothing so fickle as a criminal defendant. He wants only one thing. He wants to win. Now, if a prosecuting attorney only wants to win then we should not have that prosecuting attorney in office."
Thenl Warren asked, "What would you say to the man who did not have a lawyer but who said he wanted a lawyer before he talked?”
Nedrud: “If he asked for a lawyer, and he does not waive his right to counsel, I think that he should have a lawyer. I would go so far as to say the state should appoint him a lawyer if he asks for a lawyer. I do not think, however, that we should, in effect, encourage him to have a lawyer."
Warren: "why do you say we should not encourage him to have a lawyer? Are lawyers a menace?"
Nedrud: "Mr. Chief Justice. A lawyer must in our system of justice, must attempt to free the defendant,, this is his job."
Warren: Because it’s his professional duty to raise any defenses the man has?"
Nedrud: "Yes sir."
Warren: "Do you think in doing that he’s a menace to our administration of justice?"
Nedrud: "I think that he is not a menace at the trial level. He is not a menace per se. but he is in doing his duty is going to prevent a confession from being obtained."
Warren: "When does he cease being a menace?"
Nedrud: "Mr. Chief Justice, I did not say he was a menace."
Warren: "Well, you said he did, if he injected himself into it before the trial level."
Nedrud: "I merely said that he in effect will prevent a confession from being obtained. And if this is what we are looking for, then we should appoint a counsel even before the arrest stage. Because the moment that a murder takes place the government is out looking for the criminal."
Warren: "But if a lawyer — as you say he’s entitled to a lawyer, on the facts of Escobedo. And the lawyer is entitled to tell him that he doesn’t want him to talk to the police. Why would it be a menace for another lawyer, whom the defense then wanted, to do the same thing?"
Nedrud: "Mr. Chief Justice, I'm not disagreeing with you one iota. I'm just saying that if this in effect is what should be done, if you want to equalize for example, the defendant's right against the policeman, naturally he should have counsel. If this is what we are striving for."
Warren: "Well, suppose we put it on the basis of not equalizing anything or balancing anything, but on protecting the constitutional rights of a defendant not to be compelled to convict himself on his own testimony."
Nedrud: "Mr. Chief Justice, I of course do not interpret the Constitution.This is of course your prerogative,sir."
Warren: "How do you interpret it?"
Nedrud: "I do not interpret that the defendant is entitled to a lawyer until the trial stage."
Like this week's decision, Escobedo and Miranda were both decided 5-4. The question of how fluffy the carpet should be that the police roll out when a suspect is brought into the station has divided jurists for a long time and will go on dividing them.
And meanwhile, the perjury trial of Jon Burge, who's been accused of torturing confessions out of dozens of suspects who fell into his hands, continues in Chicago.