Showing posts with label miranda rights. Show all posts
Showing posts with label miranda rights. Show all posts

Tuesday, April 23, 2013

Police State on Display

Boston Offers Grim Preview of Coming Attractions
by DAVE LINDORFF


The Boston Marathon bombing has already demonstrated the best and the worst of America for all the world to see.

First, let’s talk about the best. When the bombs detonated, despite the shock and the horror of the blown-off legs and arms, and the blood on street and sidewalk, and without knowing what else might be coming, ordinary citizens jumped into action to try and help the gravely wounded and the dying. Average people with no experience in this kind of mayhem stepped up without hesitation to care for strangers, applying tourniquets, carrying people who couldn’t walk to hospital tents, or just holding a hand and calling for help.

People pored over their cellphone photo records and camera files, looking for photos that could help identify the killers. Without their volunteer actions, the police and federal agencies would have had no clue who they were looking for. With them, it was quick work pinpointing and identifying the two men who appear to have placed the two bombs.

Later, while police failed to catch one of the brothers suspected of having been a bomber, despite placing all of metropolitan Boston under a kind of martial law, it was a citizen who, after the so-called “lock-down” of the city had been lifted, spotted the suspect and alerted police.

Now for the worst.

Let’s start with the martial law. Okay, it wasn’t a declaration, but with police and the Mayor ordering everyone in Boston and its suburbs to stay inside and lock their doors, “answering only to police,” it was virtually the same thing. Cops, FBI, ATF and DEA agents were everywhere, and the streets were being patrolled too by National Guard troops and armored personnel carriers equipped with machine guns — this in pursuit of a single wounded 19-year-old on the run on foot! Talk about overkill. We’re lucky that police in this amped up man-hunt didn’t gun down anyone who might have been unaware of the “stay-inside” order, or who decided he or she needed a beer or an ice-cream and ventured outside. Look what the LAPD did to the Latina mother and daughter newspaper delivery team when they thought the pick-up they were driving was the truck of the rogue cop they were hunting — peppering it from behind without warning with over a hundred shots from pistols and automatic rifles. (As it is, the several cops who responded to the 911 call about a man hiding in a boat nearly blew away the chance to question him about his motive by mindlessly blasting away at him though he was pinned down inside the boat, until a federal agent ordered them to quit firing.)

The argument that the lock-down might have spared people from being shot by the fleeing Dzhokhar Tsarnaev is absurd. Considered armed and dangerous, he might, instead of slipping inside a canvas-covered boat, have broken into a home and taken a family hostage. In fact, arguably had people been out and about, Tsarnaev would probably never have managed to escape unnoticed on foot from the 20-block perimeter police had established around the scene of the initial shootout in Watertown. People would have noticed him wounded and running. Instead, they were all huddled inside their locked homes.

Worse is the precedent that was just set. Now when police have a “situation” anywhere in the country, it’s a good bet they’ll adopt the new Boston model as the option of choice, “locking down” (note that this is a prison term used to describe the tactic of locking all prisoners in their cells during disturbances — a pretty unsavory concept to apply to a community in a supposedly free society) whole towns or cities to give police a free hand.

Because Bostonians had been suitably frightened by the breathless coverage of the manhunt for the Tsarnaev brothers, people were, at least for the relatively short time the “lock-down” was in effect, willing to obey orders and stay inside, but had Dzhokhar not been found so quickly, and had authorities decided to extend the de facto martial law, it would have been illuminating to see how police would have responded to those people who did get tired of being cooped up and decided to go outside and run some errands, or go visit friends. Would they have been harassed? Probably. Arrested and taken in? Maybe. There were reports of people who stuck their heads out of doors being “yelled at” by police and “ordered” back inside.

And then we have the federal government’s response since Tsarnaev’s capture. The White House and Justice Department have announced that he will not be read his Miranda warning, which tells those who are arrested for a crime that they have the right not to answer questions from police, and the right to an attorney. Miranda warnings, the Supreme Court has long ruled, are an important part of upholding the intent of the Fifth Amendment which protects everyone in this country against being compelled to testify against themselves — one of the main grievances that led the colonists to fight to throw off British rule.

President Obama, by secret executive order two years ago, gutted that protection, saying that it would be okay to ignore the Miranda warning in the case of suspected terrorists. Will he be subjected to torture to get him to tell police whether he had any confederates beside his dead brother? We don’t know. The government has reserved the right to use coercive measures against alleged “terrorists” (even though experts have warned that statements obtained under torture are notoriously unreliable).

Note that the gutting of the Miranda rule for terrorists was not a court ruling. Nor was it a change in the Constitution. It was simply a presidential executive order. It and countless others are secret; we only know about that one because it was leaked.

We don’t know that Dzhokhar Tsarnaev is a terrorist, unless you are of the view that any whack-job who kills a bunch of people is a terrorist. As far as we know, he was no different from Jared Lee Loughner, the guy who fired into a crowd of people coming to meet Rep. Gabrielle Giffords in Arizona, killing 6 and seriously wounding 13, including the congresswoman herself, or from James Holmes, who slaughtered 14 people in a Colorado movie theater. Mass murderers, yes. But terrorists? I don’t think so, if the word is to have any meaning.

Fascists like Sens. Lindsay Graham (R-SC) and John McCain (R-AZ) are calling for the US to forget the Constitution altogether, and to declare American citizen Tsarnaev an “enemy combatant,” thus depriving him of the right even to a trial, forget the Miranda thing. They want him run through some kangaroo military tribunal and then executed.

What’s happening is that US the government, and a disturbingly large segment of the American public, is losing patience with the wheels of justice in a free society. We’ve entered an Alice in Wonderland world where what is wanted is “sentence first, verdict later,” and where the trial part, with its presumption of innocence and its jury of peers, is either for show, or is simply left out entirely. (Remember, they have trials in China, Cuba, and even Myanmar, but they certainly don’t have justice.)

The thing is, if the only time we adhere to the concept of “innocent until proven guilty,” and the only time we require police to follow the Miranda procedure of advising those they arrest of their right to remain silent until they have an attorney is in cases like traffic violations and petty crimes, but we ignore those protections when it really matters, in the case of serious crimes, then we no longer have those critical protections against tyranny.

At that point, we are in a police state.

What we are seeing in Boston is a preview of that police state — a kind of “coming attractions” look at it. The mindless post-capture applause for the army of police who implemented the “lock-down” of the city after the marathon bombing was part and parcel of that police state.

Someday, those cheering images will make a great clip in some Leni Riefenstahl-style propaganda film glorifying whoever is the current maximum leader of the American dictatorship.

Thursday, August 5, 2010

Miranda warning rights trimmed by high court

Miranda warning rights have been turned 'upside down,' according to Justice Sonia Sotomayor
By Jesse J. Holland, Associated Press / August 2, 2010

WASHINGTON - You have the right to remain silent, but only if you tell the police that you're remaining silent.

You have a right to a lawyer — before, during and after questioning, even though the police don't have to tell you exactly when the lawyer can be with you. If you can't afford a lawyer, one will be provided to you. Do you understand these rights as they have been read to you, which, by the way, are only good for the next two weeks?

The Supreme Court made major revisions to the now familiar Miranda warnings this year. The rulings will change the ways police, lawyers and criminal suspects interact amid what experts call an attempt to pull back some of the rights that Americans have become used to over recent decades.

The high court has made clear it's not going to eliminate the requirement that police officers give suspects a Miranda warning, so it is tinkering around the edges, said Jeffrey L. Fisher, co-chair of the amicus committee of the National Association of Criminal Defense Lawyers.

"It's death by a thousand cuts," Fisher said. "For the past 20-25 years, as the court has turned more conservative on law and order issues, it has been whittling away at Miranda and doing everything it can to ease the admissibility of confessions that police wriggle out of suspects."

The court placed limits on the so-called Miranda rights three times during the just-ended session. Experts viewed the large number of rulings as a statistical aberration, rather than a full-fledged attempt to get rid of the famous 1966 decision. The original ruling emerged from police questioning of Ernesto Miranda in a rape and kidnapping case in Phoenix. It required officers to tell suspects taken into custody that they have the right to remain silent and to have a lawyer represent them, even if they can't afford one.

The court's three decisions "indicate a desire to prune back the rules somewhat," Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a victims' rights group. "But I don't think any overruling of Miranda is in the near future. I think that controversy is pretty much dead."

The Supreme Court in 2000 upheld the requirement that the Miranda warning be read to criminal suspects.

This year's Supreme Court decisions did not mandate changes in the wording of Miranda warnings read by arresting police officers. The most common version is now familiar to most Americans, thanks to television police shows: "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 speak 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?"

However, the court did approve one state version of the Miranda warnings that did not specifically inform suspects that they had a right to have a lawyer present during their police questioning.

The Miranda warning used in parts of Florida told suspects: "You have the right to talk to a lawyer before answering any of our questions. If you cannot afford to hire a lawyer, one will be appointed for you without cost and before any questioning. You have the right to use any of these rights at any time you want during this interview."

Lawyers — and the Florida Supreme Court — said that didn't make clear that lawyers can be present as the police are doing their questioning. But Justice Ruth Bader Ginsburg, writing the 7-2 majority decision, said all the required information was there.

"Nothing in the words used indicated that counsel's presence would be restricted after the questioning commenced," Ginsburg said. "Instead, the warning communicated that the right to counsel carried forward to and through the interrogation."

The next day, the court unanimously limited how long Miranda rights are valid.

The high court said for the first time that a suspect's request for a lawyer is good for only 14 days after the person is released from police custody. The 9-0 ruling pulled back from an earlier decision that said that police must halt all questioning for all time if a suspect asks for a lawyer.

Police can now attempt to question a suspect who asked for a lawyer — once the person has been released from custody for at least two weeks — without violating the person's constitutional rights and without having to repeat the Miranda warning.

"In our judgment, 14 days will provide plenty of time for the suspect to get reacclimated to his normal life, to consult with friends and counsel and to shake off any residual coercive effects of his prior custody," said Justice Antonin Scalia, who wrote the majority opinion.

And finally, the court's conservatives used their 5-4 advantage to rule that suspects must break their silence and tell police they are going to remain quiet if they want to invoke their "right to remain silent" and stop an interrogation, just as they must tell police that they want a lawyer.

All the criminal suspect needs to say is he or she is remaining silent, wrote Justice Anthony Kennedy. "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."

But Justice Sonia Sotomayor said the majority's decision "turns Miranda upside down."

"Criminal suspects must now unambiguously invoke their right to remain silent — which counter intuitively requires them to speak," she said. "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."

Police officers will look at these decisions and incorporate them into their training, said James Pasco of the National Fraternal Order of Police. "Officers are expected to adapt to changes required by the Supreme Court," Pasco said. "This will be no different."

But Fisher thinks the court's Miranda decisions will make it easier for police to get confessions out of people who don't want to confess. "Those decisions open up ways for cops to work around Miranda," Fisher said.

Tuesday, June 1, 2010

Right to remain silent? Not unless you state them at the time of your arrest

Suspect better speak up
By JESSE J. HOLLAND
The Associated Press
Tuesday, June 1, 2010

WASHINGTON -- Want to invoke your right to remain silent? You'll have to speak up.

In a narrowly split decision, the Supreme Court's conservative majority expanded its limits on the famous Miranda rights for criminal suspects on Tuesday - over the dissent of new Justice Sonia Sotomayor, who said the ruling turned Americans' rights of protection from police abuse "upside down."

Justice Anthony Kennedy, who wrote the majority opinion, said a suspect who goes ahead and talks to police after being informed he doesn't have to has waived his right to remain silent. Elena Kagan, who has been nominated by President Barack Obama to join the court, sided with the police as U.S. solicitor general when the case came before the court. She would replace Justice John Paul Stevens, one of the dissenters.

A right to remain silent and a right to a lawyer are at the top of the warnings that police recite to suspects during arrests and interrogations. But Tuesday's majority said that suspects must break their silence and tell police they are going to remain quiet to stop an interrogation, just as they must tell police that they want a lawyer.

This decision means that police can keep shooting questions at a suspect who refuses to talk as long as they want in hopes that the person will crack and give them some information, said Richard Friedman, a University of Michigan law professor.

"It's a little bit less restraint that the officers have to show," Friedman said.

The ruling comes in a case in which a suspect, Van Chester Thompkins, remained mostly silent for a three-hour police interrogation before implicating himself in a Jan. 10, 2000, murder in Southfield, Mich. He appealed his conviction, saying he had invoked his Miranda right to remain silent by remaining silent.

Kennedy, writing the decision for the court's conservatives, said that wasn't enough.

"Thompkins did not say that he wanted to remain silent or that he did not want to talk to police," Kennedy said. "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."

He was joined in the 5-4 opinion by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito.

Prosecutors cheered the decision, saying it takes the guesswork out of when police have to stop questioning suspects. "Is it too much to ask for a criminal suspect to say he doesn't want to talk to police?" said Scott Burns, executive director of the National District Attorneys Association.

This is the third time this session that the Supreme Court has placed limits on Miranda rights, which come from a 1966 decision - it involved police questioning of Ernesto Miranda in a rape and kidnapping case in Phoenix - requiring officers to tell suspects they have the right to remain silent and to have a lawyer represent them, even if they can't afford one.

Earlier this term, the high court ruled that a suspect's request for a lawyer is good for only 14 days after the person is released from police custody - the first time the court has placed a time limit on a request for a lawyer - and that police do not have to explicitly tell suspects they have a right to a lawyer during an interrogation.

For Justice Sotomayor, deciding to make suspects speak to have the right to remain silent was a step too far. Sotomayor, the court's newest member, wrote a strongly worded dissent for the court's liberals, saying the majority's decision "turns Miranda upside down."

"Criminal suspects must now unambiguously invoke their right to remain silent - which counterintuitively requires them to speak," she said. "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."

She was joined in her dissent by Stevens, Ruth Bader Ginsburg and Stephen Breyer.

Supreme Court nominee Kagan had sided with the police in this case. As solicitor general, she told the Supreme Court that the Constitution "does not require that the police interpret ambiguous statements as invocations of Miranda rights."

"An unambiguous-invocation requirement for the right to remain silent and terminate questioning strikes the appropriate balance between protecting the suspect's rights and permitting valuable police investigation," Kagan said in court papers.

Thompkins was arrested for murder in 2001 and questioned by police for three hours. At the beginning, he was read his Miranda rights and said he understood.

The officers in the room said Thompkins said little during the interrogation, occasionally answering "yes," "no," "I don't know," nodding his head and making eye contact as his responses. But when one of the officers asked him if he prayed for forgiveness for "shooting that boy down," Thompkins said, "Yes."

He was convicted, but on appeal he wanted that statement thrown out because he said he had invoked his Miranda rights by being uncommunicative with the interrogating officers.

The 6th U.S. Circuit Court of Appeals in Cincinnati agreed and threw out his confession and conviction. The high court reversed that decision.

"In sum, a suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to police," Kennedy said. "Thompkins did not invoke his right to remain silent and stop the questioning. Understanding his rights in full, he waived his right to remain silent by making a voluntary statement to the police. The police, moreover, were not required to obtain a waiver of Thompkins' right to remain silent before interrogating him."

Sotomayor called that reasoning "a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided during custodial interrogation."

The case is Berghuis v. Thompkins, 08-1470.