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Sounds Of Silence
Before I could come to any conclusion it occurred to me that my speech or my silence, indeed any action of mine, would be a mere futility. What did it matter what any one knew or ignored? What did it matter who was manager? One gets sometimes such a flash of insight. The essentials of this affair lay deep under the surface, beyond my reach, and beyond my power of meddling.
It’s too bad that Joseph Heller didn’t live to see this one.
Then again, maybe it isn’t.
The United States Supreme Court has ruled that in order for a criminal defendant to invoke and enjoy the Fifth Amendment right to remain silent, s/he must first speak.
The 5-4 decision enshrining Catch-22 into American case law was written by Justice Anthony Kennedy. Probably Kennedy once read Catch-22, many years ago. But clearly he has forgotten all about it.
Kennedy is on the US Supreme Court because of Jerry Brown. Who was selected by Democratic primary voters as their candidate for Governor of California this fall. Brown, when he still had hair, already served as governor of this state. Twice.
Brown, when he had a lot of hair, failed the California bar exam on his first try. According to the story as I've heard it, Brown’s father, Edmund G. Brown, then serving as Governor of California (yes, we have family political dynasties in this country), called upon Anthony Kennedy, then a constitutional law professor at McGeorge School of Law in Sacramento, to serve as Jerry’s personal tutor.
On Jerry’s second attempt, he passed the bar. Everyone was happy. Some years later, when a vacancy opened up on the federal Ninth Circuit Court of Appeals, Edmund G. Brown put in a good word for Kennedy. This was back in the day when Democrats and Republicans cooperated in appointing people to the federal bench. And so Kennedy was given a seat, in 1975, by President Gerald Ford, and a compliant Congress. For helping Jerry Brown, Kennedy had received his reward.
But it didn’t stop there. Twelve years passed. Then Robert Bork crashed and burned, having unwisely decided that the way to impress the Senate Judiciary Committee with his qualifications for a seat on the Supreme Court would be to come off like Torquemada. Then it was learned that Bork’s would-be successor, Douglas Ginsburg, had liked to sit around with his students there at Harvard, smoking marijuana. So they burnt Ginsburg, too. Finally, on his third try, President Ronald Reagan decided to nominate Anthony Kennedy. And Kennedy was confirmed.
And Kennedy sat up there for 22 years, before puckishly slipping into the clownshoes to insert Catch-22 into the Fifth Amendment.
Anyone who knows anything about the police knows that it is always best not to tell them anything. Silence is best. Because the police are not your friends. Ever.
When my brother was a missing person, and I was called down to the station, as soon as I walked into the "interview" room I knew he was dead, because a police chaplain was sitting next to the detective. I also knew I was a suspect, because a second detective was present, in a chair placed to the rear and the right of the chair where I was expected to sit, enabling him to act quickly from behind if I suddenly confessed or otherwise went wild.
I know these people and their ways, and I detest them, so the first thing I did was scrape my chair back, placing it just to the left of the door, so I had all three officers in view—the detective, the chaplain, and the Doberman. They didn’t like that. "Tough"—as they themselves like to say—"titty."
It’s easy to blame these people, but it’s also hard. Because that’s just the way they are. The way they’re trained to be. To believe that anybody who is not them has no doubt done something deserving of a cell. And if you keep at ‘em long enough, you’ll find out what it is.
Citizens without real experience with police officers tend to think that only the guilty would want to exercise the right to remain silent, and that those who speak to confess are indeed guilty of the crimes of which they are charged. Wrong, and wrong.
We had a client who one night was tooling around at the wheel of a meth wagon. Beside him, in the passenger seat, was his friend; in the rear was a third man, whom the other two were ostensibly concealing and protecting from a screwloose crew of methheads who had decided—on no evidence—that the guy was a child molester.
Suddenly the car is filled with deafening noise. The guy in the passenger seat had turned around and fired eight bullets into the head of the guy in the back.
This was news to our client, the driver, who had had no idea that his compadre planned to turn the car into something out of Pulp Fiction. Which is in fact the "defense" the shooter tried to use, when it came time for his turn in the "interview" room: he claimed the gun had first gone off "accidentally," and that he then used the remaining seven shots to put the wounded man "out of his misery." He actually cited to Pulp Fiction as authority for the likelihood and banality of his act—John Travolta inadvertently blew the head off a guy he was just talking to, while wandering around in a car. Well, so had he. Could he go now?
Just another American youth, thoroughly desensitized by a lifetime of exposure to live-action, fictional violence, in which death is portrayed as humorous, trivial, without real consequence.
Our client, when brought into the "interview" room, was young, hungry, mortified, scared, coming down off a meth run. He actually asked for his mother. The cops kept at him for three hours. He told them the truth, about everything. But the Dobermans wouldn’t back off, circling always to return to his alleged foreknowledge of the killing: "you probably suspected he might shoot him," "in your heart of hearts, you must have been afraid that would happen," "didn’t you worry he might decide to do away with him?" Etc. Etc. Finally, our client, exhausted, wanting it all to end, said, "yeah, I guess maybe I worried something like that might happen."
Bingo. The Dobermans had the meat they wanted. Hustled our client off to the cell, charging him with first-degree murder. We had to go to trial to undo the damage. Our client was acquitted of the bullshit first-degree murder count, and was sent away for the time which he deserved to serve—as an accessory after the fact: he’d helped the shooter dump the body.
Another client was a rich-kid science experiment, an obsessive bodybuilder who, while living in the San Francisco Bay Area, hung with the drug-addled crew that transformed Barry Bonds into another species. Our client had there developed a taste for GHB. One night, while living in our town, he furnished some, upon request, to a sometimes-girlfriend, hoping to thereby persuade her into the sack. (Didn’t work.) He furnished GHB too to her friend, who also wanted to "get high." This second woman took some, went home, went to bed, and died.
The cops within hours got all this from the ceaselessly flapping lips of various friends and acquaintances and random voluble gossips. They called our client down to the "interview" room. They began by telling him he was "not a suspect." Which was a complete and total lie. What—you didn’t know cops were allowed to lie? Mountains of case-law permit police officers to lie about almost anything, at least so long as they’re interacting with the citizenry. It is true that they are supposed to hew to the truth when inscribing official reports, or while testifying in court. But after a few years of life in the law lane, most of them get confused, forgetting where it is permissible to be mendacious, and where it is not. They become so twisted and turned around that they basically have to screw their pants on every morning.
Anyway, under questioning our client admitted he furnished the dead woman with GHB, and the law jockeys, after getting him to spill this nine or ten different ways, only then read him the Miranda warning—because previously he had "not been a suspect"; see how that works?—and booked him for manslaughter. They then went out and wheeled the body into the autopsy room, informing the coroner: "Guy gave her GHB. She died in her sleep." Before he even started up the saw, the compliant coroner had this cause of death fixed in his mind.
That’s how you "build a case."
People have spent decades in cages because of crimes they confessed to that they did not, in fact, commit. In the "Central Park jogger" case, which briefly introduced the term "wilding" into the American lexicon, five black juveniles were convicted and sentenced to long prison terms for brutally beating and raping a white 28-year-old investment banker. Four had provided complete videotaped confessions; the fifth made verbal admissions, but balked at a videotaped confession.
Problem is, all those confessions were false. None of the five young men had beaten or raped the victim. All had been coerced into confessing, in the course of lengthy and intense police interrogations, the Dobermans using the tools they have developed to convince even God himself to confess to killing Jesus Christ on Christmas Day.
Not until 12 years later did prosecutors admit that the crime was the work of a wholly different person. Only after the culprit himself confessed, and his DNA was found to match samples that had been taken from the victim.
This is not at all unusual. I could go on. But why bother? People don’t want to hear about it.
The United States Supreme Court mandated what has become known as Miranda warnings in recognition of the fact that police officers were routinely beating suspects to extract confessions. As the Court has itself acknowledged, in several subsequent Miranda-related opinions, Dobermans have in the years since mostly moved away from employing physical coercion, to utilizing means psychological. These are just as effective, as the "wilding" case demonstrates. And to most Americans they do not "shock the conscience" as much as did brass knuckles and the rubber hose.
Pre-Miranda, this was a typical police interrogation, at least so long as you were poor, powerless, and possessed of melanin:
Miranda was an "activist" decision that was a long time coming, and it came only when the Court became convinced that the police would just not stop terrorizing people unless constrained by "prophylactics" like Miranda.
Associate Justice to the United States Supreme Court William O. Douglas in his autobiography The Court Years recounts a case typical of those that arrived at the high court in the decades preceding Miranda.
Near the end of the [Chief Justice Charles Evan] Hughes regime, the Bob White case came up from Texas. Bob White, an illiterate Negro, was convicted of rape and sentenced to death. We denied certiorari in 1939. In 1940 he filed a petition for rehearing, adding an additional ground that his conviction was based on a coerced confession.
Hughes, smelling a rat, sent for the record and discovered ugly episodes involving police brutality leading to the confession. We granted the rehearing and reversed out of hand, citing recent decisions holding that state convictions based on coerced confessions violated the Due Process Clause of the Fourteenth Amendment.
Texas officials complained bitterly, sending lawyers to Hughes to tell him that he and the Court were arbitrary. Hughes, more astute than the Texas lawyers, suggested that the state of Texas file a petition for rehearing, which was done. So we granted the state’s petition for rehearing and heard oral argument. In an opinion written by [Justice Hugo] Black, we denied the rehearing, which meant that the case went back for a new trial.
Black’s opinion revealed all the horrible details surrounding the way the confession had been obtained, and Texas groaned because the manner of "Texas justice" was fully disclosed.
At the new trial, while Bob White was testifying in a Texas courtroom, the husband of the prosecuting woman entered the courtroom. On the rehearing, I had read the entire record and it seemed to me that the rape charge was concocted, that the woman was the promoter of the project and screamed only when she thought they were about to be apprehended. However that may be, when the husband entered the courtroom he proceeded up the center aisle, pushed open the gate leading to the bar, walked up to Bob White, whipped out a pistol and shot him dead.
The presiding judge dismissed the jury because the Bob White case had become moot. The husband was indicted, tried and acquitted six days later.
At his trial the prosecutor said:
"When the case was reversed it looked like the end of the row as far as the law was concerned. The state proceeded to trial again last week, knowing it would not have the use or benefit of White’s signed confession. The state’s case would have to be based on circumstances which, without the confession, would have been insufficient to sustain a conviction. It was unfortunate that Mr. Cochran was forced to do that which was done. It was his wish that the law handle the matter. In my opinion the guilty party got justice, but it was unfortunate that it had to be at Mr. Cochran’s hands. If I were going into that jury room, I wouldn’t hesitate, I wouldn’t stand back a minute, in writing a verdict of not guilty. I ask you to return a verdict finding Mr. Cochran not guilty."
And the Texas courtroom audience applauded.
Van Chester Thompkins was a suspect in a January 2000 fatal shooting in Southfield, Michigan. A year later he was picked up in Ohio, and Southfield police officers traveled there to interrogate him. They presented Thompkins with a printed Miranda card of the sort that some Dobermans like to carry around. They decided that Thompkins understood the warning, although he declined to sign a form saying that he did. Then, for three hours, they kept at him. Thompkins mostly kept his mouth shut, save for an occasional "no," "yeah," or "I don’t know" to innocuous questions, as well as the observation that the chair he was sitting in "was hard," and a "no, I don’t want a peppermint" when one of the Dobermans tried to press candy on him.
Three hours in, one of the Dobermans demanded to know if Thompkins believed in God. Tears welling in his eyes, Thompkins admitted that he did. The Doberman asked if Thompkins prayed to God. Thompkins said that he did. The Doberman then asked: "Do you pray to God to forgive you for shooting that boy down?" To which Thompkins replied: "Yes."
This remark was introduced at Thompkins’ trial, and he was convicted and sentenced to life in prison without parole.
(Case-law permits police officers to invoke the deity to persuade otherwise recalcitrant suspects to confess. In the courtroom prosecutors are even permitted—within some limits—to roll out God to try to secure a conviction. But that is a subject for another day.)
On appeal, Thompkins contended the trial court had erred in not suppressing his "confession." He argued that the fact that he sat there with his mouth shut while Dobermans barked at him for three hours was sufficient to show that he had invoked his constitutional right to remain silent.
The United States Court of Appeals for the Sixth Circuit found in Thompkins’ favor, noting that a decision to invoke the right to remain silent need not be express, and, quoting the decision of the United States Supreme Court in North Carolina v. Butler (1979) 441 US 369, stated that it could be "inferred from the actions and words of the person interrogated." Said the Court: "[Thompkins'] persistent silence for nearly three hours in response to questioning and repeated invitations to tell his side of the story offered a clear and unequivocal message to the officers: Thompkins did not wish to waive his rights."
Well, Tony Kennedy and the other Dobermans on the high court snapped that baby right up, and, this June, reversed, decreeing that in order to remain silent, one must first speak.
Kennedy in his opinion notes that in prior decisions "the Court has not yet stated whether an invocation of the right to remain silent can be ambiguous or equivocal," and then decides to "make new law"—which is okay when conservatives do it, remember—by decreeing that such an invocation must indeed be made "unambiguously."
And to Kennedy and the boys, simply sitting there with your yap shut while Dobermans bark in your face is not sufficiently "unambiguous." No, you must tell them that you’re not talking. Which, of course, requires that you talk.
In a passage straight out of Heller’s freaking Catch-22, Kennedy writes:
Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police. Had he made either of these simple, unambiguous statements, he would have invoked his " ‘right to cut off questioning.’ " Here he did neither, so he did not invoke his right to remain silent.
Writing for the four justices in dissent, Justice Sonia Sotomayor called bullshit.
The Court concludes today that a criminal suspect waives his right to remain silent if, after sitting tacit and uncommunicative through nearly three hours of police interrogation, he utters a few one-word responses. The Court also concludes that a suspect who wishes to guard his right to remain silent against such a finding of "waiver" must, counterintuitively, speak—and must do so with sufficient precision to satisfy a clear-statement rule that construes ambiguity in favor of the police.
Justice Sotomayor goes on to note that the majority basically overrules Butler without saying so, and that "the broad rules the Court announces today" "are unnecessary to decide this case"—hallmarks of an "activist court," which is what the Roberts Court is, more so than any Court since that collection of mossbacks and mountebanks that sat up there making paper airplanes of the Constitution throughout the 1930s.
Addressing Kennedy’s Catch-22 lawmaking without explicitly referencing Heller, Justice Sotomayor writes:
I cannot agree with the Court’s much broader ruling that a suspect must clearly invoke his right to silence by speaking.
Charitably, she terms such nonsense "novel." Or perhaps she’s being apt, since a novel is where this sort of ludicrousity was born.
She also points out that not many suspects are going to be able to grasp that the Court has ruled that they must enter the theater of the absurd in order to protect their rights under the Fifth Amendment:
Advising a suspect that he has a "right to remain silent" is unlikely to convey that he must speak (and must do so in some particular fashion) to ensure the right will be protected.
Justice Sotomayor concludes succinctly:
Today’s decision turns Miranda upside down. Criminal suspects must now unambiguously invoke their right to remain silent—which, counterintuitively, 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. Those results, in my view, find no basis in Miranda or our subsequent cases and are inconsistent with the fair-trial principles on which those precedents are grounded. Today’s broad new rules are all the more unfortunate because they are unnecessary to the disposition of the case before us. I respectfully dissent.
It will be good having this woman on the high court over the coming decades. She sees clearly, and writes well. For her, of course, it will be a supremely frustrating experience. For the foreseeable future, her workplace will be dominated by five men shuffling through the halls in clownshoes, scratching at their big red rubber noses as they rummage through absurdist texts seeking support for mad new rules of law, which they will then announce from the bench with cheery honks of the clown-horn. It won’t always be such. But it will be ugly, so long as it is.
(This piece, illustrated, originally available in red.)