There was a time when the phrase getting “the third degree” was more than a metaphor. A time when a bad cop knew how to use a length of good rubber hose. A time when rogue detectives opened the doors to a confession by hanging a suspect over one—his hands cuffed behind him. That time officially ended forty-four years ago, in 1966.
That year, to curtail coerced confessions, the United States Supreme Court decided in Miranda v. Arizona, (384 U.S. 436), that before the police could interrogate a person in their custody—itself coercive—they must read him his rights—to remain silent and so on—and warn that anything he said could be used against him. Without that, prosecutors could not introduce at trial any statement he made while under arrest, unless they could show the suspect understood his rights and clearly and unambiguously waived them. Not even a confession, if one eventually resulted. Once the perp invokes his rights, questioning must immediately cease. The fuzz have been bellyaching about it ever since.
This week, the Court gave the constabulary a dose of relief in Berghuis v. Thompkins, a five-four ruling written by Justice Anthony M. Kennedy that makes it easier to badger a person into an admission of guilt.
Ten years ago in Southfield, Michigan, Van Chester Thompkins and two buddies were riding around with a gun. Firing out the window, he shot to death Samuel Morris and wounded Frederick France. Thompkins fled to Ohio, to be arrested a year later. Detective Christopher Helgert and another policeman went to question him.
Before the interview began at 1:30 one afternoon, Helgert broke out a form and read Thompkins his rights—had Thompkins read aloud the one that says, “You have the right to decide at anytime before or during questioning to use your right to remain silent and your right to talk with a lawyer while you are being questioned”—and asked Thompkins to sign. Thompkins declined. In fact, for the next two hours and forty-five minutes of interrogation, Thompkins declined to do much of anything except sit silently in a chair, complain once that it was hard and refuse a peppermint.
Then, about 4:15, Helgert asked, “Do you believe in God?” Thompkins said, “Yes.” “Do you pray to God?” “Yes.” “Do you pray to God to forgive you for shooting that boy down?” “Yes.” Not trick questions, but clever enough to show at trial that Thompkins admitted the shooting, and help get him sentenced to life without parole.
Before trial and on appeal, Thompkins contended that he had not waived his rights, and that his silence amounted to a statement that he was invoking them. But the prosecutors said he clearly waived his rights through the act of answering Helgert’s three questions.
Writing in dissent, Justice Sonia Sotomayor wondered how a suspect could more clearly and unambiguously invoke the right to remain silent than by remaining silent. She mentioned that the law is that, “Even when warnings have been administered and a suspect has not affirmatively invoked his rights, statements made in custodial interrogation may not be admitted as part of the prosecution’s case in chief ‘unless and until’ the prosecution demonstrates that an individual “knowingly and intelligently waive[d] [his] rights.” Questioning should have ceased as soon as Helgert noticed Thompkins’ silence. She pointed out that the majority has turned Miranda on its head—ruling that though a suspect has not waived his rights, the police may go on questioning him until he incriminates himself, the very thing against which Miranda was supposed to protect, and the confession itself being the waiver of the right to remain silent.
Lest you feel too sorry for Thompkins, however, you should know two eyewitnesses and a friend to whom he confessed testified against him, that the crime was caught on a security camera, and that he tried to conceal evidence. Guilty, guilty, guilty.