Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  THE RIGHT TO SILENCE

  Ernesto A. Miranda was not a model citizen, yet a model police practice now bears his name. It has become an adjective, as in “Miranda warning,” and a verb, as in “Mirandize,” a procedure designed to protect against coercion in the interrogation room. Many officers carry cards with the warning’s text for suspects to sign before questioning, and forms printed with its famous words for signature afterward as part of a confession.

  Miranda began getting into trouble as early as eighth grade: truancy, burglary, a year of reform school, armed robbery, AWOL from the army, months in the stockade, a dishonorable discharge, driving a stolen car across state lines, a year in federal prison, robbery again, then kidnapping and raping a mentally defective eighteen-year-old woman who could not pick him out from a lineup with absolute certainty.

  So the Phoenix police put him in a soundproof room for two hours and questioned him. They told him falsely that he had been identified by the victim. They promised to drop a robbery charge if he confessed, he said later. They did not advise him of his right to silence or to counsel as contained in the Fifth and Sixth Amendments. And although there was no evidence that they beat him, shocked him, put a plastic bag over his head, or otherwise abused him physically, the Supreme Court ruled in 1966 that the “interrogation environment” of isolation without support “is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation … at odds with one of our Nation’s most cherished principles—that the individual may not be compelled to incriminate himself.”48

  To ensure that any statement was entirely voluntary, the Court fashioned a four-part warning beginning with the right to silence, designed not only to educate the uninformed suspect, Chief Justice Earl Warren wrote, but as “an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere” and to “show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it.”

  The thin majority of five justices laid down the rules this way: “He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney, one will be appointed for him prior to any questioning if he so desires.” Rarely has the language of a Supreme Court opinion passed so literally into everyday police work.

  Miranda’s conviction having been set aside, the state conducted a new trial, this time without his confession but with testimony from his common-law wife that he had told her of the rape.49 Again he was convicted, and again he was sentenced to twenty to thirty years. Paroled in 1972, he made a meager business selling autographed cards printed with the Miranda warning. Then during a traffic stop, a gun was discovered, a parole violation that returned him to prison for a year. Out again for the last time, he slid into a subculture of low-stakes card games in seedy bars, where he was stabbed to death in 1976 during a fight over a $3 gambling pot.50 As in many other landmark cases, a noble legacy was left by an ignoble life.

  Constitutional shields against police power invariably contain holes, some punctured by the courts’ lofty second thoughts, others eroded by canny evasions on the ground. The vaunted Miranda warning is such a case. It is a modern device designed to protect the vulnerable from the torture and subtler abuse employed through history. It is also a mundane tool. It fuses a high precept with pragmatism, setting up a struggle not yet entirely resolved. Its application has been trimmed by litigation and shaped to fit inside a criminal justice system bruised by gritty experience with crooks and liars. Yet its central principle, the right to reticence, is rooted in a hallowed tradition.

  The accused, facing the options of confession or affirmative defense, may find refuge in a space between the two—in the dignity of silence. It has been recognized as a wise and honorable choice since ancient days. Jesus stood silently at his trial, the Gospels report. “And the chief priests accused him of many things: but he answered nothing,” writes Mark. “And Pilate asked him again, saying, Answerest thou nothing? Behold how many things they witness against thee. But Jesus yet answered nothing; so that Pilate marvelled.”51

  Four centuries earlier, in 399 B.C., Socrates had been “silent before his judges,” writes I. F. Stone, or had mounted an eloquent defense, as recorded by the contemporary chroniclers Plato and Xenophon. The story of silence, curiously, emerged more than five centuries after his trial and over a century after the crucifixion of Jesus, perhaps to color Socrates retroactively with Christ-like martyrdom, in a silence carried by poise, purity, and innocence.52

  The right to silence, codified by the Magna Carta in 1215, was invoked fatally in the sixteenth century by John Lambert as he was tried by an ecclesiastical court for heresy. An early Protestant, he insistently maintained that the Communion bread and wine were not turned into the body and blood of Christ literally, but only symbolically, spiritually. He refused to answer the question of whether he had previously been accused of heresy, quoting in Latin the principle “No man is bound to betray himself.” In 1538 he was burned at the stake. But by the middle of the next century, the right to silence had been implanted in English common law.53 It comes to us in the Fifth Amendment.

  By the nineteenth century, both English and American courts were taking a dim view of confessions induced by threats and promises, no matter how vague. Scattered throughout accounts of American interrogations were the phrases “You had better own up”; “It might be easier for you”; and “It will be better for you to confess. The door of mercy is open.” These were enough to make many judges doubt that the statements of guilt were wholly voluntary and reliable. The concern was codified in 1897 by the Supreme Court, which reversed a federal murder conviction in Bram v. United States because an officer subtly implied leniency by saying, “If you had an accomplice, you should say so, and not have the blame of this horrible crime on your own shoulders.” The Court decided that any threat or promise, however indirect, required suppression, but the ruling was persistently ignored by lower courts, and ultimately Bram was overturned by the high court itself.54

  The Supreme Court confronted more explicit coercion well before inventing the Miranda protections in 1966. The justices in 1936 heard an appeal of the murder convictions of three black men tortured in Mississippi—all had been whipped repeatedly, and one had been suspended twice with a noose around his neck, then lowered to the ground, still alive. At trial, three of the torturers had described the lashings. (“Not too much for a Negro; not as much as I would have done if it were left to me,” one deputy testified.) Yet the confessions had been admitted as the only prosecution evidence, and the men had been sentenced to death. The Court set aside their convictions.55

  Then the Court in 1940 rejected confessions coerced by other means, less than physical violence, vacating the death sentences of four young black men in Florida who had endured five days and a night of threats and terror that had forced their admissions to murdering a white man.56 In 1960, the justices threw out as involuntary the confession of a mentally ill black man who had undergone eight or nine hours of nonstop questioning by police investigating an Alabama robbery.57 Those three opinions were based not on the Fifth Amendment’s right against self-incrimination but on the Fourteenth Amendment’s guarantee of due process at the state level. Not until 1964 did the Court apply the Fifth Amendment to the states.58

  Peppering police departments with case-by-case opinions that set no general guidelines did not change behavior very much, and legislatures were not stepping up to their obligation to write unambiguous rules for interrogations. The Court finally did so with clarity in Miranda—too much clarity, in the view of many judges, prosecutors, and law enforcement officers. Justice Byron White, in a heated Miranda dissent, warned excessively that the rule “is a deliberate calculus to prevent interrogations, to reduce the incidence of confessions an
d pleas of guilty, and to increase the number of trials.” The opposite of his prediction has come true: guilty pleas have risen, trials have precipitously declined, and confessions are still coerced, though less frequently, perhaps, and less brutally.

  Some conservative critics argue that Miranda extends the rights to silence and counsel beyond the courtroom, where the framers originally placed them, and into the station house, where they can only interfere with police work. As Justice Antonin Scalia observed, a lawyer present at questioning is likely to give only one piece of advice: say nothing. If acted upon intelligently by suspects, he suggested, the Miranda warning would snuff out all confessions, not only coerced, but also voluntary, ignoring the “world of difference … between compelling a suspect to incriminate himself and preventing him from foolishly doing so of his own accord.”59

  Scalia liked the way Congress tried to undo Miranda two years after the ruling. A provision in the Safe Streets Act of 1968 allowed judges to decide if confessions were voluntary by examining “the totality of circumstances” rather than whether the Miranda warning had been given.60 This returned federal courts to a looser pre-Miranda standard, but the Justice Department didn’t take advantage of the relaxation; mostly, it stuck to the requirement that suspects be read their rights.61 When FBI agents broke the rules and failed to Mirandize an accused bank robber, his incriminating statements made their way to the Supreme Court in 2000 to be ruled upon. Scalia would have admitted the statements under the “totality of circumstances” test, but he was outvoted 7–2 as the justices reaffirmed Miranda as a “constitutional decision” and struck down the congressional act. Writing for the majority, Chief Justice William H. Rehnquist observed: “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”62

  The debate since has been softened but not settled. It turns on whether Miranda’s requirement is constitutional or prophylactic, a fundamental pillar of rights or merely an expedient rule of evidence that can be revised or withdrawn. For the moment, no confession can be admitted into evidence without having been preceded by the Miranda warning—except … unless … and with caveats. There are many exceptions, more and more as courts shave away the scope of the rule. These include coerced confessions accompanied by independently obtained evidence sufficient to convict,63 comments made to cops during traffic stops,64 statements initiated by defendants before questioning,65 answers to questions urgently asked to protect public safety,66 jailhouse confessions to undercover police officers posing as prisoners,67 and confessions that impeach a defendant’s testimony at trial.68 Also, since Miranda applies only when someone is in “custody,” courts have shown immense flexibility in defining the term in favor of the police. Even a prison inmate is not “in custody,” and therefore not entitled to the Miranda warning, when questioned in jail about another crime.69

  In 2010, the Supreme Court relaxed the Miranda requirements in three rulings that illustrated how subtly constitutional rights can be worn away in small increments, so that they seem whole until they become fragile. In Florida v. Powell, the Court allowed police to alter the wording of the warning by omitting the original Miranda opinion’s requirement that police inform a suspect of “the right to the presence of an attorney” during questioning. Tampa police had told a robbery suspect, Kevin Dewayne Powell, “You have the right to talk to a lawyer before answering any of our questions.” Powell then admitted to owning a handgun found in a search, was convicted, and appealed on the ground that the warning had implied his right to a lawyer before, but not during, interrogation. The justices noted that the police had also said, “You have the right to use any of these rights at any time you want during this interview,” which the majority believed made clear his right to summon an attorney at any time. Powell seemed to understand as much, since in trial he answered “Yes” when his lawyer asked him, “You waived the right to have an attorney present during your questioning by detectives; is that what you’re telling this jury?” But Justice John Paul Stevens, in dissent, argued that the wording could be taken by a suspect to mean “a one-time right to consult with an attorney, not a right to have an attorney present with him in the interrogation room at all times.”70

  The Court went on in Maryland v. Shatzer to allow a suspect to be re-questioned even after he invoked his Fifth Amendment rights, provided that at least two weeks had elapsed since his release from custody.71 That ruling was unanimous.

  Then, as conservatives moved to cut the Miranda protections closer to the bone, more liberal justices peeled away in dissent. The opinion came in Berghuis v. Thompkins.72 It held, curiously, that if a suspect is told of his right to remain silent and he then remains silent, he has not invoked his right to silence. Only if he breaks his silence to affirm his right is he considered to have refused to waive the right; without that waiver, police interrogation is closed off, and statements elicited subsequently are inadmissible. Before this ruling, courts and law enforcement tended to require an explicit waiver, although a previous opinion had recognized that a waiver could be “inferred from the actions and words of the person interrogated.”73 Now the Court, with a bare majority of five justices, reversed the presumption that no waiver had been given, instead interpreting silence as a waiver and holding that a taciturn suspect may continue to be questioned. It is worth recalling that Miranda itself was also decided by the slimmest vote of 5–4.

  This was a case of trick questioning, in a sense, and the decision seems likely to open the door wider to long interrogations and police manipulation, especially of people with little education, mental dysfunction, or emotional immaturity—including children. Van Chester Thompkins, arrested for a shooting outside a Michigan mall where one man died, was shown a printed form listing his Miranda rights, was asked to read one part aloud to test his literacy, and was then asked to sign to signify that he understood his rights. He read aloud but refused to sign. For two hours and forty-five minutes of questioning, he said practically nothing. Then the detective pushed the right button. When he asked, “Do you believe in God?” Thompkins answered, “Yes.” Tears welled in his eyes. “Do you pray to God?” the detective asked. “Yes,” Thompkins replied. “Do you pray to God to forgive you for shooting that boy down?” Thompkins said, “Yes,” and averted his eyes. He refused to write a confession, but his statement was admitted into evidence. The surviving victim also testified, the jury brought a first-degree murder conviction, and the defendant was sentenced to life.

  When Thompkins answered the question with a single word, he effectively waived his right to silence, the majority of justices held. Miranda had said that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” But the questions about God broke through his silence. He could have said nothing in response, the Court noted, or “could have unambiguously invoked his Miranda rights and ended the interrogation.”

  In a vigorous dissent, Justice Sonia Sotomayor, a former prosecutor and federal trial judge, condemned the decision for construing “ambiguity in favor of the police,” which marked “a substantial retreat from the protection against compelled self-incrimination” provided by Miranda. In fact, she said, suspects often invoke their rights with “equivocal or colloquial language.” This ruling “invites police to question a suspect at length—notwithstanding his persistent refusal to answer questions—in the hope of eventually obtaining a single inculpatory response which will suffice to prove waiver of rights.” She concluded: “Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, requires them to speak.”

  Furthermore, even the eroding provisions of Miranda don’t travel well. While the United States claims the right to prosecute crimes committed against Americans anywhere on earth, it does not extend full constitutional rights to suspects interrogated abroa
d, even when they are later tried in the United States. No Miranda warning need be given unless American agents do the questioning, use foreign police as surrogates, or operate with them jointly.74 Non-Mirandized statements to foreign authorities are admissible if the government can show that they’re voluntary—a big “if,” especially during a time of terrorism, as judges and juries face the difficult duty of evaluating confessions that migrate into U.S. courts.

  CONFESSION ABROAD, TRIAL AT HOME

  In the dense rain forest of Uganda’s Bwindi Impenetrable National Park, gunfire broke the dawn, followed by a woman’s scream. Some people heard grenades exploding. An American hid silently inside her tent, hoping to be overlooked. A couple quickly crawled out the back of their tent and concealed themselves in the bush. Others were less agile and less fortunate.75

  So began Monday, March 1, 1999, as a platoon of Hutu militia, seeking English-speaking tourists, swept into a camp. And so, too, began a long and tangled process of investigation, capture, and interrogation. During fifteen months of questioning, three men gave a total of twenty-nine differing statements of guilt. The case became a study in confession as a curse, confession as a blight on justice.

  The tourists were there to see the endangered mountain gorillas in one of the animals’ final habitats. The militiamen were there to send a message by harming Westerners whose countries supported Rwanda’s government. Scattered and exiled after the Hutu-led genocide against minority Tutsis in 1994, the remnants of Hutu forces had regrouped in neighboring lands across the borders, grandly naming themselves the Liberation Army of Rwanda (ALIR). Their ragtag insurgency nurtured hopes of overthrowing the Tutsi leadership that had come to power following the massacres. The militia’s Irondelle Company had sent some of its men into the national park.