Berghuis v. Thompkins

From ScotusWiki

Argued March 1, 2010. Decided June 1, 2010.

Authorship: Ray Seilie of Harvard Law School and Lyle Denniston of SCOTUSblog

Docket: 08-1470

Issue: Whether the Sixth Circuit expanded the Miranda rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged that he understood them, and the defendant did not invoke them but did not waive them.

1 Briefs and Documents
2 Opinion Analysis
3 Oral Argument Recap
4 Pre-Argument Articles
- 4.1 Argument Preview
5 Links and Further Information
- 5.1 Media Links
- 5.2 From the Blogosphere

Briefs and Documents

Decision

REVERSED AND REMANDED in a 5-4 decision with an opinion written by Justice Kennedy. Justice Sotomayor filed a dissenting opinion, joined by Justices Stevens, Ginsburg, and Breyer.

Oral Argument

Transcript (March 1, 2010)

Merits Briefs

Amicus Briefs

Certiorari-Stage Briefs

Opinion Analysis

Lyle Denniston originally wrote the following for SCOTUSblog:

Analysis

More than four decades after the Supreme Court ordered police to warn suspects about their rights before questioning them, the actual day-to-day practice has not turned out to be a simple ritual under clear ground rules. Encounters in interrogation rooms still and often are a test of wills, with detectives trying to get answers and suspects trying to avoid talking themselves into deeper trouble. As a result, the Court often has had to reinterpret its 1966 decision in Miranda v. Arizona. It did so again on Tuesday, and this time the result decisively tilted the warnings procedure toward the police.

By a 5-4 vote, the Court for the first time made two things clear about Miranda rights: first, if a suspect does not want to talk to police — that is, to invoke a right to silence — he must say so, with a clear statement because it is not enough to sit silently or to remain uncooperative, even through a long session; and, second, if the suspect finally answers a suggestive question with a one-word response that amounts to a confession, that, by itself, will be understood as a waiver of the right to silence and the statement can be used as evidence. Police need not obtain an explicit waiver of that right. The net practical effect is likely to be that police, in the face of a suspect’s continued silence after being given Miranda warnings, can continue to question him, even for a couple of hours, in hopes eventually of getting him to confess.

Those two declarations emerged in Berghuis v. Thompkins (08-1470), a Michigan drive-by shooting case. Van Chester Thompkins, Jr., of Southfield, Mich., was convicted of murder, assault, and several firearm charges, and is serving life in prison without parole. On Tuesday, the Court ruled that his Miranda rights had not been violated, and thus reaffirmed his conviction and sentence. (In a separate part of the ruling, the Court also rejected a claim that his defense lawyer was ineffective in failing to seek a jury instruction to limit the damaging testimony of another man involved in the crime.)

Justice Anthony M. Kennedy wrote for the majority, joined by the Court’s four most conservative members, Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Antonin Scalia and Clarence Thomas. Justice Sonia Sotomayor wrote a strongly-worded dissent, accusing the majority of deciding the case more sweepingly than it needed to do and of carrying out “a substantial retreat from the protection” given by the Miranda decision.

Although the majority clearly intended to use this case to make broad new declarations about Miranda rights, the specific facts case gave them the opportunity to do so. Thompkins, captured in a neighboring state more than a year after the January 2000 shooting in Michigan, was questioned by two detectives in a county jail Southfield for close to three hours. At the beginning, they warned him about his rights, and asked him to read part of the list out loud, to make sure he understood English. But he refused to sign the form, showing he understood his rights. There is a dispute about whether he ever was asked orally whether he understood the warnings.

The detectives went ahead with the questioning, and, they said later, it was almost completely one-sided: the officers did almost all of the talking. A few of his answers were single words. Near the end of the questioning, one officer asked whether Thompkins believed in God. Tears welled up in Thompkins eyes as he said “Yes.” The offider then asked: “Do you pray to God?” Again, the suspect said “Yes.” The officer then asked: “Do you pray to God to forgive you for shooting that boy down?” Thompkins said “Yes,” and then looked away. He refused to make any written confession, and the questioning stopped after about three full hours.

That one word confession to the crime was used at Thompkins trial, and he was convicted. After state courts upheld the conviction, Thompkins pursued a challenge in federal courts, ultimately winning in the Sixth Circuit Court, which ruled that Thompkins had not waived his right to silence, finding his persistent silence through the prolonged interview indicated he did not want to waives his rights. (It also ruled in his favor on the ineffective lawyering claim.)

The Supreme Court divided its ruling into two segments: one interpreting how a suspect invokes the right to silence under Miranda, and one interpreting how a suspect can accomplish a waiver of that right.

Turning back to a 1994 ruling, in Davis v. U.S., where the Court had said that a suspect must make clear without ambiguity when he wants to claim the right to counsel after getting Miranda warnings, the Court laid down the same rule for claiming the right to silence under Miranda. There is no reason to treat those two rights differently, Justice Kennedy wrote. If a suspect could invoke the right to silence by simply staying silent, or by some other “ambiguous act, omission, or statement,” that could complicate the dealings with police and require the officers to make difficult decisions about what the suspect actually intended, and run the risk of guessing wrong.

In this case, the Court concluded, it was decisive that “Thompkins did not say that he wanted to remain silent or that he did not want to talk with the police.” (Justice Sotomayor, in dissent, criticized that conclusion as indicating that the Court was not mandating that suspects in police custody used some form of “magic words” in order to claim their right not to give evidence against themselves. She also wrote that police were not likely to advise the suspect about what words he might use to claim that right.)

Turning to the question of how a suspect gives up the right to silence, by “waiving” it, the Court majority concluded that police need only give the warnings and then satisfy themselves that the suspect understood his rights; they are not required, at any point in the interview, to obtain an explicit waiver from the suspect. Thus, the questioning can go on (the Court did not say how long it could continue, though this case involved about three hours overall) unless the suspect, at some point, explicitly and without ambiguity invokes the right to silence. If the suspect continues to remain silent or uncooperative, police may then use a strategy to try to get the suspect, at last, to confess.

In this case, the Court found that, once Thompkins had said “Yes” to the question about praying to God for forgiveness for the shooting, he engaged in ‘a course of conduct” that indicated he was surrendering the right to silence with that confession. “If Thompkins wanted to remain silent, he could have said nothing in response to [the detective's] questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation,” Justice Kennedy wrote. (Justice Sotomayor, in dissent, clearly regarded this part of the Court’s ruling as more important even than its decision on how to invoke the right to silence. The dissenting opinion said that the waiver ruling ran counter to decades of the Court’s precedents making clear how heavy a burden prosecutors faced when trying to convince courts that a suspect had given up the right to silence.)

The one theme underlying both parts of the opinion for the majority was that the detectives here had given Thompkins his Miranda rights, and had validly determined that he understood them. After that, the Court made clear, the way the interrogation went — or stopped — depended upon choices that Thompkins had available to him. Failing to explicitly invoke his right to silence, and given it up by briefly confessing, Thompkins opted to give evidence against himself, according to the ruling.

Although it probably will take years for police to decide how, in the real world, and whether, in fact, they want to take advantage of the new ruling, one curious facet of the decision as it emerged was that a number of police manuals do explicitly require more of questioning officers than the Court’s decision now does. Many of those manuals, it appears, tell police that they should not do any questioning at all until they have obtained an explicit waiver of the suspect’s rights. It is now clear that that is not constitutionally required.

Oral Argument Recap

Ray Seilie originally wrote the following for SCOTUSblog:

During Monday’s oral argument in Berghuis v. Thompkins, the Court focused on delineating when a suspect in custody can be considered to have impliedly waived his Fifth Amendment right to remain silent by failing to affirmatively assert the right.

Arguing on behalf of the state, Michigan Solicitor General Eric Restuccia began by emphasizing the Court’s decision in North Carolina v. Butler, in which the Court held that a suspect could impliedly waive his Miranda rights by remaining silent after he received the appropriate warnings. The Justices then wrestled primarily over the question whether Thompkins’s silence, followed by his response to the officers’ questions, constituted a waiver of his right to remain silent or instead a failure to assert that right. Justice Ginsburg suggested that the case was distinguishable from Butler, in which the suspect had explicitly declared that he would talk to the police; by contrast, in this case Thompkins had remained silent for over two hours before he eventually responded to the officer’s questions. These facts, Justice Sotomayor posited, suggested that Thompkins had neither invoked nor waived his rights. Mr. Restuccia countered, however, that Thompkins had waived his rights when he answered the questioning officer.

The Justices then turned to the reasonableness of the Michigan courts’ determination that Thompkins’s conduct constituted an implied waiver. Justice Scalia seemed comfortable with a rule that would require police to simply warn a suspect and then shift the burden to the suspect to ask that questioning be stopped. By contrast, Justices Breyer and Sotomayor resisted Mr. Restuccia’s suggestion that Thompkins’s silence was enough to constitute an implicit waiver of his right to remain silent.

Arguing on behalf of the United States as an amicus supporting Michigan, Assistant to the Solicitor General Nicole Saharsky emphasized that Miranda requires only that a suspect’s decision to talk to police be “knowing, intelligent, and voluntary.” Although she conceded that prosecutors bear the burden of demonstrating a waiver, she suggested that the totality of circumstances surrounding Thompkins’s admission sufficed to justify its introduction at trial.

Arguing on behalf of Van Chester Thompkins, Ms. Elizabeth Jacobs began by attempting to distinguish Butler, which she characterized as a case that focused more on the right to counsel. Thus, she maintained, Butler’s implied waiver holding does not necessarily extend to the right to remain silent. When pressed by Justice Scalia about whether the Court’s cases clearly establish that interrogations cannot continue in the absence of a waiver, Ms. Jacobs countered that in any event the facts in this case did not demonstrate a waiver.

Jacobs then shifted her focus to the facts of the case. She suggested that the evidence did not demonstrate that Thompkins either wanted questioning to continue or that his eventual response was voluntary. Seizing on one of Justice Breyer’s earlier lines of questioning, Ms. Jacobs initially emphasized that the length of time between the delivery of the Miranda warnings and Thompkins’ eventual response suggested that the interrogation might have been coercive, only to retreat from this line of reasoning when Justice Kennedy suggested that the length of time was, in fact, irrelevant to the case. Throughout Ms. Jacobs’s argument, Chief Justice Roberts and Justice Scalia emphasized that under AEDPA, Thompkins could only obtain reversal of his conviction if the state court’s interpretation of Miranda was unreasonable. And although Justice Scalia acknowledged that the rule suggested by Ms. Jacobs was plausible, he seemed hesitant to agree that Michigan’s approach was unreasonable.

In his brief rebuttal, Mr. Restuccia emphasized that Miranda did not prohibit interrogations before the waiver. When pressed by Justices Breyer and Stevens regarding the precise point at which Thompkins had waived his rights, Mr. Restuccia suggested that Thompkins should have invoked his rights more clearly if he had wanted to be left alone. He concluded by reminding the court that the factual record established by the Michigan courts was entitled to deference under AEDPA.

Pre-Argument Articles

Argument Preview

The following was originally written by Ray Seilie for SCOTUSblog:

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) substantially limited the extent to which federal courts can grant habeas relief to criminal defendants convicted in state courts. On March 1, in Berghuis v. Thompkins, No. 08-1470, the Court will consider AEDPA’s effect on a defendant’s Fifth and Sixth Amendment claims. At issue in the case first is whether a criminal defendant waives his Fifth Amendment rights when he is given a Miranda warning and verbally acknowledges that he understands his rights, but he neither invokes nor waives them explicitly. The second question presented is whether the Sixth Circuit accorded sufficient deference to the state court when it held that the failure by Thompkins’s lawyer to seek a limiting instruction specifying that a witness’s acquittal in a separate case could only be used to make credibility determinations constituted ineffective assistance of counsel.

In 2001, two police officers from Southfield, Michigan interviewed respondent Van Chester Thompkins about his role in a shooting incident that left one man dead and another wounded. Although he generally remained silent throughout the questioning, Thompkins verbally acknowledged that he understood his rights; however, he refused to sign a document confirming that understanding. After approximately two hours of unsuccessful questioning, one officer adopted a “spiritual tact [sic],” asking Thompkins whether he had sought forgiveness for “shooting that boy down.” Thompkins answered “yes.”

At Thompkins’s trial on charges that included first-degree murder and assault with intent to commit murder, prosecutors introduced evidence of Thompkins’s statement at his interview. They also introduced the testimony of Eric Purifoy, who – prosecutors told the jury – had been acquitted of the same crimes in a separate trial and who testified that he heard gunshots but did not see what had happened. However, Thompkins’s lawyer failed to request a limiting instruction specifying that the jury should consider Purifoy’s acquittal only in the context of assessing his credibility. Thompkins was convicted of all charges.

On appeal, the Michigan Court of Appeals (that state’s intermediate appellate court) affirmed, and the Michigan Supreme Court denied discretionary review. Thompkins then sought federal habeas relief, raising several objections to his state conviction. The district court denied his federal habeas petition, but the Sixth Circuit reversed and remanded. Addressing Thompkins’s Miranda claim, it held that the Michigan Court of Appeals had both unreasonably determined the facts and unreasonably applied clearly established state law. Turning to his ineffective assistance claim, the court of appeals held that the failure to request a limiting instruction was both deficient performance and prejudicial insofar as blaming Purifoy for the murder had been a key part of Thompkins’s strategy at trial.

Michigan filed a petition for certiorari, which the Court granted on September 30, 2009. In its opening brief on the merits, Michigan maintained not only that the Sixth Circuit’s holdings were legally erroneous, but also that, at a minimum, they failed to defer sufficiently to the state courts’ factual and legal conclusions.

First, the state argued, Thompkins had impliedly waived his Miranda rights by failing to invoke them after acknowledging that he understood them. Although the Sixth Circuit held to the contrary, the Supreme Court’s caselaw does not require anything more. In North Carolina v. Butler, the Court clarified that, although there is a presumption that a criminal defendant had not waived his Miranda rights, that presumption can be overcome even without an explicit waiver. And in Davis v. United States, the Court rejected the idea that police were required to obtain clarification about ambiguous requests for counsel before continuing their questioning. Although the Court in those cases did not clarify what would or would not constitute an implied waiver, the state argued that the state court’s decision certainly did not violate “clearly established Supreme Court precedent” — a requirement for federal habeas relief under AEDPA. Moreover, the state continued, the Sixth Circuit also committed a basic legal error: as a straightforward legal matter, a suspect who is informed of his Miranda rights and acknowledges that he understands them impliedly waives those rights when he chooses to answer questions.

Second, Michigan argued, because its court of appeals did not act unreasonably in rejecting Thompkins’s ineffective assistance of counsel claim, its decision was thereby entitled to AEDPA deference. As a result, the Sixth Circuit’s Strickland analysis was flawed in two respects. First, it improperly relied on the assumption that the jury failed to adhere to its oath and instructions when it rendered its verdict against Thompkins. Second, there was no reasonable probability that Thompkins would have been acquitted but for his lawyer’s alleged error.

In his merits brief, Thompkins defended the Sixth Circuit’s decision. He argued that “clearly established federal law” required the interrogating officer to cease questioning whenever a suspect indicated “in any manner” that he wished to invoke his rights, including by remaining silent. Moreover, the burden of demonstrating an implied waiver falls on the state, which was unable to meet it in this case. Thus, the interrogating officer’s repeated and eventually successful attempts to elicit a response from Thompkins were improper. Thompkins also argued that Michigan’s position would effectively require the Court to overrule all of Miranda except for the requirement that questioning officers inform suspects of their rights.

Turning to his ineffective assistance of counsel claim, Thompkins asserted that in determining whether he was prejudiced by his counsel’s ineffective assistance, the Michigan court of appeals had improperly applied a “fundamental fairness” test rather than relying on the test required by Strickland – whether there was a “reasonable probability of a different outcome.” Although state court judgments are entitled to “wide latitude,” the court’s reliance on an erroneous standard entitled him to habeas relief.

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