SCOTUS, Elena Kagan and the Death of Miranda

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Offline acidbathfan

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Offline usefulidiot,uselesseater

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Re: Elena Kagan's Thesis 1981
« Reply #1 on: May 23, 2010, 04:06:58 PM »
That's some gruesome crap right there. It kind of kicks into gear around page 12 *puke*  *gag*
 
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Offline larsonstdoc

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SCOTUS, Elena Kagan and the Death of Miranda
« Reply #2 on: June 01, 2010, 11:25:40 AM »
http://www.google.com/hostednews/ap/article/ALeqM5g0h1F81MI0Bkk-APutBxmT82_QCAD9G2HCD80


Court: Suspects must say they want to be silent
(AP)
WASHINGTON — The Supreme Court says suspects must explicitly tell police they want to be silent to invoke their Miranda protection during interrogations.
A right to remain silent and a right to a lawyer are the first of the Miranda rights warnings, which police recite to suspects during arrests and interrogations. But the justices said Tuesday suspects must tell police they are going to remain silent to stop an interrogation, just as they must tell police that they want a lawyer.
The ruling comes in a case where a suspect remained mostly silent for a three-hour police interrogation before implicating himself in a murder. He appealed his conviction, saying that he invoked his Miranda right to remain silent by remaining silent.
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Offline agentbluescreen

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Re: Supreme Court: Suspects Must Say They Want to be Silent (MIRANDA)
« Reply #3 on: June 01, 2010, 11:53:57 AM »
Gee black is white, up is down, freedom is tyranny, war is peace, rights are wrong and now, talking is silence.

Offline KI4BNC

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Re: Supreme Court: Suspects Must Say They Want to be Silent (MIRANDA)
« Reply #4 on: June 01, 2010, 11:56:03 AM »
Textbook doublespeak.
those that would give up a little liberty to obtain a little security,deserve neither and will lose both.

Offline Satyagraha

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SCOTUS, Elena Kagan and the Death of Miranda
« Reply #5 on: June 01, 2010, 01:01:54 PM »
Court: Suspects must say they want to be silent
By JESSE J. HOLLAND
The Associated Press
Tuesday, June 1, 2010; 10:59 AM
http://www.washingtonpost.com/wp-dyn/content/article/2010/06/01/AR2010060101378.html?hpid=topnews

WASHINGTON -- The Supreme Court ruled Tuesday that suspects must explicitly tell police they want to be silent to invoke Miranda protections during criminal interrogations, a decision one dissenting justice said turns defendants' rights "upside down."

A right to remain silent and a right to a lawyer are the first of the Miranda rights warnings, which police recite to suspects during arrests and interrogations. But the justices said in a 5-4 decision that suspects must tell police they are going to remain silent to stop an interrogation, just as they must tell police that they want a lawyer.

The ruling comes in a case where 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 that he invoked his Miranda right to remain silent by remaining silent.

But Justice Anthony 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."

Justice Sonia 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."

Van Chester Thompkins was arrested for murder in 2001 and interrogated by police for three hours. At the beginning, Thompkins 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 invoked his Miranda rights by being uncommunicative with the interrogating officers.

The Cincinnati-based appeals court agreed and threw out his confession and conviction. The high court reversed that decision.

The case is Berghuis v. Thompkins, 08-1470.
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Offline Spartacus101

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Re: SCOTUS Decision: Suspects must say they want to be silent
« Reply #6 on: June 01, 2010, 01:19:56 PM »
The most disturbing thing I've heard the federal government claim since the PATRIOT ACT was passed.  In all cases pertaining to commom law, a person's rights are assumed.  It is only UCC and Admiralty Law that require an individual to declare their rights in order for them to be recognized.  With this logic they could visit a whole host of atrocities on the American people and then claim, "Well, you never said you didn't want us to do that to you."

"What is that?  I can't hear you.  What did you say?  Something about rights?  I can't understand you..."(Bang)

I suggest everybody keep a business card sized copy of the Bill of Rights in their wallet at all times and write, "I hereby declare the following in effect at all times:..." and then your signature.

Online donnay

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Re: SCOTUS Decision: Suspects must say they want to be silent
« Reply #7 on: June 01, 2010, 01:23:19 PM »
So when we arrest these bunch of criminals we will know what to do!!   >:(
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Offline Spartacus101

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Re: SCOTUS Decision: Suspects must say they want to be silent
« Reply #8 on: June 01, 2010, 01:25:26 PM »
But let's not forget that the Supreme Court has no authority to interpret the Constitution or make such rulings.  They can say anything they want; after all, they do have the right of freedom of speech just like the rest of us (irony?), but it doesn't make what they say the law.  It is only the peons in law enforcement who believe that this decision is legally binding that will cause trouble for us.

Offline TheJudge

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Re: SCOTUS Decision: Suspects must say they want to be silent
« Reply #9 on: June 01, 2010, 01:53:50 PM »
Quote
I suggest everybody keep a business card sized copy of the Bill of Rights in their wallet at all times and write, "I hereby declare the following in effect at all times:..." and then your signature.

Did you make your own or did you purchase it somewhere??

Thanks

Offline Kilika

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Re: SCOTUS Decision: Suspects must say they want to be silent
« Reply #10 on: June 01, 2010, 04:29:31 PM »
But let's not forget that the Supreme Court has no authority to interpret the Constitution or make such rulings.  They can say anything they want; after all, they do have the right of freedom of speech just like the rest of us (irony?), but it doesn't make what they say the law.  It is only the peons in law enforcement who believe that this decision is legally binding that will cause trouble for us.

I think your sort of right, at least about how this decision will be used by both sides. However, you seem to be misunderstanding what the Supreme Court does. It rules on an individual case and they use the law, including the Constitution. They are required to interpret the Constitution, or else they couldn't rule constitutionally! They don't make law, they just make a ruling in a specific case, one case at a time like any other court. And in this case, they were right in my opinion. The person can't just sit there for 3 hours and selectively answer questions, and then expect for it all to fall under the 5th. That's a joke.

Should a person be required to say they are remaining silent? It doesn't hurt anything at all. People have conversations so long as they particiapte, but if a suspect is questioned and they say nothing at all, I do think that is pretty close to exercising the right to remain silent, but so long as they have said nothing, it is only an assumption. There is no incrimination to saying you want to remain silent or want an attorney. But you can't answer questions, however simple an answer, then after being charged, claim the 5th for all that you did happen to say. That just doesn't work that way. That makes a mockery of the 5th amendment.

Afterall, if you want to exercise your right to freedom, you must ask if your under arrest, and if not, you free to leave right then. They either MUST arrst you on some charge, or let you go, and if you don't talk enough to say you want to leave, then your stuck there for as long as they want to badger you. You have to verbalize your desires, even if it's to remain silent, or to leave an interragation room. You also can talk all you want, then exercise your right to no longer speak and ask for a lawyer. But, you can't go back and claim the 5th to all you said before you informed them your not talkng anymore.

This ruling is a non-story all the way.
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Offline Dig

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Re: SCOTUS Decision: Suspects must say they want to be silent
« Reply #11 on: June 01, 2010, 04:45:42 PM »
Again, my favorite boricua tells it like it is!
http://www.supremecourt.gov/opinions/slipopinions.aspx

http://www.supremecourt.gov/opinions/09pdf/08-1470.pdf


Today’s orders and opinions
http://www.scotusblog.com/2010/06/todays-orders-and-opinions-14/print/
Posted By Erin Miller On June 1, 2010 @ 10:44 am

The Court issued five opinions today and granted one new case, Mayo Foundation for Medical Education and Research v. United States (09-837).

In Carr v. United States [1] (08-1301), the Court, on a 6-3 vote, reverses and remands in an opinion [2] by Justice Sotomayor. Justice Scalia concurs in part and in the judgment, but joins most of Justice Sotomayor’s opinion.  Justice Alito dissents, joined by Justices Thomas and Ginsburg.
Holding: The Sex Offender Registration and Notification Act, a 2007 law that requires sex offenders to register, does not apply to sex offenders whose interstate travel occurred before the Act went into effect.

In Levin v. Commerce Energy [3] (09-223), the Court reverses and remands, with Justice Ginsburg writing the opinion [4] for the Court.  The vote is unanimous.  Justice Kennedy concurs and Justice Thomas concurs in the judgment only, joined by Justice Scalia.  Justice Alito concurs separately in the judgment.
Holding: Under the doctrine of comity, a tax payer’s lawsuit claiming discriminatory state taxation must proceed originally in state court, even when it is a request to increase the tax burden on a competitor.

In Berghuis v. Thompkins [5] (08-1470), the Court reverses and remands in an opinion [6] by Justice Kennedy.  The vote is 5-4, with Justice Sotomayor dissenting joined by Justices Stevens, Ginsburg, and Breyer.
Holding: The Court upholds the state court decision rejecting the claim of a violation of Miranda v. Arizona.  The defendant’s silence while being questioned by police did not amount to an invocation of his Miranda right to remain silent.


In Alabama v. North Carolina [7] (132 Original), the Court overrules the exceptions to the Special Master’s reports and adopts the Special Master’s recommendations.  Justice Scalia writes the opinion [8] for the Court.  The Chief Justice dissents in part and concurs in part, joined by Justice Thomas.

In Samantar v. Yousuf [9] (08-1555), the Court affirms the lower court’s judgment and remands the case, in an opinion [10] by Justice Stevens.  The vote is unanimous.  Justice Alito concurs, Justice Thomas concurs in part and concurs in the judgment, and Justice Scalia separately concurs in the judgment.
Holding:  Former Somalian official Mohamed Ali Samantar’s claim of immunity to a damages lawsuit for alleged atrocities in Somalia is not governed by the Foreign Sovereign Immunities Act.  But the Court leaves to litigation in the lower court whether Samantar is entitled to common law immunity, or whether he may assert other legal defenses.

The full order list is here [11].  Separately from that list, the Court also issued an order [12] in the Arizona election subsidies case McComish v. Bennett, refusing to vacate the prior stay of the 9th Circuit.

Below are the texts of the opinions, and the briefs in Mayo Foundation.

Title: Mayo Foundation for Medical Education and Research v. United States
Docket: 09-837 [13]
Issue: Whether the Treasury Department can categorically exclude all medical residents and other full-time employees from the definition of “student” in 26 U.S.C. § 3121(b)(10), which exempts from Social Security taxes “service performed in the employ of a school, college, or university” by a “student who is enrolled and regularly attending classes at such school, college, or university.”
Opinion below [14] (8th Circuit)
Petition for certiorari [15]
Brief in opposition [16]
Petitioners’ reply [17]
Amicus brief of Georgetown University et al. [18]
Amicus brief of the Board of Trustees of the University of Illinois [19]
Amicus brief of the Association of American Medical Colleges [20]
Amicus brief of the American Hospital Association [21]

No. 08-1301, Carr v. United States [22]

No. 09-223, Levin v. Commerce Energy [23]

No. 08-1470, Berghuis v. Thompkins [24]

No. 132 Original, Alabama v. North Carolina [25]

No. 08-1555, Samantar v. Yousuf [26]

Article printed from SCOTUSblog: http://www.scotusblog.com

URL to article: http://www.scotusblog.com/2010/06/todays-orders-and-opinions-14/

URLs in this post:

[1] Carr v. United States: http://www.scotuswiki.com/index.php?title=Carr_v._United_States

[2] opinion: http://www.supremecourt.gov/opinions/09pdf/08-1301.pdf

[3] Levin v. Commerce Energy: http://www.scotuswiki.com/index.php?title=Levin,_Tax_Commissioner_of_Ohio_v._Commerce_Energy,_Inc.

[4] opinion: http://www.supremecourt.gov/opinions/09pdf/09-223.pdf

[5] Berghuis v. Thompkins: http://www.scotuswiki.com/index.php?title=Berghuis_v._Thompkins

[6] opinion: http://www.supremecourt.gov/opinions/09pdf/08-1470.pdf

[7] Alabama v. North Carolina: http://www.scotuswiki.com/index.php?title=Alabama_v._North_Carolina

[8] opinion: http://www.supremecourt.gov/opinions/09pdf/132Orig.pdf

[9] Samantar v. Yousuf: http://www.scotuswiki.com/index.php?title=Samantar_v._Yousuf

[10] opinion: http://www.supremecourt.gov/opinions/09pdf/08-1555.pdf

[11] here: http://www.supremecourt.gov/orders/courtorders/060110zor.pdf

[12] order: http://www.scotusblog.com/wp-content/uploads/2010/06/09A1133_McComish_v_Bennett.pdf

[13] 09-837: http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/09-837.htm

[14] Opinion below: http://www.scotusblog.com/wp-content/uploads/2010/05/09-837_ca8.pdf

[15] Petition for certiorari: http://www.scotusblog.com/wp-content/uploads/2010/05/09-837_pet.pdf

[16] Brief in opposition: http://www.scotusblog.com/wp-content/uploads/2010/05/09-937_bio.pdf

[17] Petitioners’ reply: http://www.scotusblog.com/wp-content/uploads/2010/05/09-837_reply.pdf

[18] Amicus brief of Georgetown University et al.: http://www.scotusblog.com/wp-content/uploads/2010/05/09-837_Amicus-brief-of-the-Georgetown-University-et-al..pdf

[19] Amicus brief of the Board of Trustees of the University of Illinois: http://www.scotusblog.com/wp-content/uploads/2010/05/09-837_Amicus-brief-of-the-Board-of-Trustees-of-the-University-of-Illinois.pdf

[20] Amicus brief of the Association of American Medical Colleges: http://www.scotusblog.com/wp-content/uploads/2010/05/09-837_Amicus-brief-of-Association-of-the-American-Medical-Colleges.pdf

[21] Amicus brief of the American Hospital Association: http://www.scotusblog.com/wp-content/uploads/2010/05/09-837_Amicus-brief-of-the-American-Hospital-Association.pdf

[22] No. 08-1301, Carr v. United States: http://www.scribd.com/doc/32324801/No-08-1301-Carr-v-United-States

[23] No. 09-223, Levin v. Commerce Energy: http://www.scribd.com/doc/32324806/No-09-223-Levin-v-Commerce-Energy

[24] No. 08-1470, Berghuis v. Thompkins: http://www.scribd.com/doc/32324803/No-08-1470-Berghuis-v-Thompkins

[25] No. 132 Original, Alabama v. North Carolina: http://www.scribd.com/doc/32324800/No-132-Original-Alabama-v-North-Carolina

[26] No. 08-1555, Samantar v. Yousuf: http://www.scribd.com/doc/32324805/No-08-1555-Samantar-v-Yousuf
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Offline Dig

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Re: SCOTUS Decision: Suspects must say they want to be silent
« Reply #12 on: June 01, 2010, 04:55:00 PM »

On June 1, the U.S. Supreme Court finally dealt Miranda a death blow. Elena Kagan, Obama's nominee for the Supreme Court, was complicit in Miranda's demise. Her participation may give some insight into her views on the rights of criminal defendants, and her understanding of how the law affects ordinary people.

In Berghuis v. Thompkins, the decision announced today, the Court ruled 5-4 that a suspect has to speak in order to assert the right to remain silent. Van Chester Thompkins was given his Miranda warnings and remained quiet for almost 3 hours. During that time, officers continued the interrogation and Thompkins eventually made an admission. A federal court found that he had asserted his right to remain silent by actually remaining silent, and that officers should have ended the questioning. The Supreme Court reversed.

The majority said that if officers give Miranda warnings to a suspect, they may begin questioning and continue to question unless the person clearly and unambiguously says he wants to remain silent or wants a lawyer. Police do not have to expressly ask a suspect to waive their rights. If the person shows incredible stamina--like Thompkins--and manages to remain silent through hours of intense interrogation, he will have "waived" his rights if he eventually caves in to pressure.

And the Court has placed a substantial burden on suspects to invoke their rights with great precision. A number of lower courts applying the clear and unambiguous standard have been quite demanding, finding that statements such as "I think it's about time for me to stop talking" and "I think I would like to talk to a lawyer" are not clear invocations of the right to remain silent or the right to counsel.

The Court's opinion is the most important Miranda decision in a decade. The ruling is breathtaking even to those, like me, who believe that Miranda's safeguards were already eroded. The Court has formally transformed Miranda from a rule aimed at protecting suspects to one that protects police. Miranda's safeguards for suspects are now mostly symbolic. So long as officers give warnings, their interrogation practices will be largely immune from any legal challenge. As the justices have noted in other cases, if warnings are given and a statement is obtained, it is very difficult for a defendant to contend that his admissions were coerced.

Justice Sotomayor wrote a strong dissent in Thompkins. Joined by retiring Justice John Paul Stevens and Justices Breyer and Ginsburg, she explained how the majority opinion rewrites Miranda.

So what was Kagan's role? As Solicitor General, she filed a brief in Berghuis v. Thompkins for the United States as amicus curiae (friend of the Court). The U.S. was not a party in the case since Thompkins had been convicted in state court and it was the State of Michigan that challenged the lower court's ruling. Kagan did not have to enter the fray and take a position, but she decided to do so.

Kagan's brief was even more aggressive than Michigan's. In a 1994 case, Davis v. United States, the justices ruled that if a suspect first waives his rights and then later wants a lawyer, the person has to invoke that right clearly in order to require officers to stop questioning. Kagan's position--accepted by the majority in Thompkins--was that Davis should be extended to the right to remain silent and to cases where a person has not already waived his or her rights. By contrast, the State of Michigan sought to win on a narrower ground. We cannot know whether Kagan's arguments convinced the majority to issue such a broad decision. But the Solicitor General, often called the "Tenth Justice," is a very influential player.

What does this case tell us about a Supreme Court with Justice Kagan? Superficially, if Kagan had already replaced Stevens on the Court, the outcome would not have changed. At most, the decision would have been 6-3 and not 5-4. But Kagan's arguments may reveal something else, particularly when contrasted with Sotomayor's dissent.

Kagan's brief shows no understanding of modern police interrogation tactics or that suspects--who are in a position of powerlessness during an interrogation--may have difficulty asserting their rights or using precise language to do so. Sotomayor, on the other hand, notes that "criminal suspects often use equivocal or colloquial language in attempting to invoke their right to silence." Her dissent reveals a solid understanding of how the decision will shape police practices. Of course, Sotomayor was a prosecutor and a trial judge. Kagan has no experience on the ground.

In nominating Elena Kagan to the Supreme Court, President Obama said that Kagan has an "understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people . . . ." Perhaps so. But that understanding was not evident in Kagan's work in Thompkins.
 
All eyes are opened, or opening, to the rights of man. The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately

Offline Spartacus101

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Re: SCOTUS Decision: Suspects must say they want to be silent
« Reply #13 on: June 01, 2010, 07:59:21 PM »
I think your sort of right, at least about how this decision will be used by both sides. However, you seem to be misunderstanding what the Supreme Court does. It rules on an individual case and they use the law, including the Constitution. They are required to interpret the Constitution, or else they couldn't rule constitutionally! They don't make law, they just make a ruling in a specific case, one case at a time like any other court. And in this case, they were right in my opinion. The person can't just sit there for 3 hours and selectively answer questions, and then expect for it all to fall under the 5th. That's a joke.

Should a person be required to say they are remaining silent? It doesn't hurt anything at all. People have conversations so long as they participate, but if a suspect is questioned and they say nothing at all, I do think that is pretty close to exercising the right to remain silent, but so long as they have said nothing, it is only an assumption. There is no incrimination to saying you want to remain silent or want an attorney. But you can't answer questions, however simple an answer, then after being charged, claim the 5th for all that you did happen to say. That just doesn't work that way. That makes a mockery of the 5th amendment.

Afterall, if you want to exercise your right to freedom, you must ask if your under arrest, and if not, you free to leave right then. They either MUST arrest you on some charge, or let you go, and if you don't talk enough to say you want to leave, then your stuck there for as long as they want to badger you. You have to verbalize your desires, even if it's to remain silent, or to leave an interrogation room. You also can talk all you want, then exercise your right to no longer speak and ask for a lawyer. But, you can't go back and claim the 5th to all you said before you informed them your not talking anymore.

This ruling is a non-story all the way.

The point is that Constitutional rights in cases of common law are assumed.  One does not have to declare their rights in order for them to be recognized and in effect.  If someone is not saying a word when they are interrogated that doesn't mean you can badger him for three hours until he finally snaps or until he declares a right that is already supposed to be assumed.  The Fifth Amendment exists to protect the layman from deceptive psychological maneuvers that lawyers and law enforcement use to unwittingly coax a false confession.  A person who is scared to death by being brought under police interrogation shouldn't be forced to speak in order for their 5th Amendment rights to be recognized.  You must speak in order to be silent?  What sense does that make?  By SCOTUS declaring that one must declare a constitutionally-protected and assumed right in order for it to be in effect has dire ramifications for the rest of the Bill of Rights.  One could argue that since you didn't declare that you wanted protection from unwarranted search and seizure that it wasn't in effect and that the police can grab anything of yours that they want without probable cause.  To declare that one Constitutional right must be declared in order to be implemented implies that all Constitutional rights must be declared in order to be implemented.  That is not how the system was devised.

And yes, the Supreme Court definitely has the authority to decide court cases; but my point was that their decisions are not legally binding in the general sense.  Just because the Supreme Court ruled against this man's case does not mean that future smaller courts are prevented from ruling differently in a similar or identical case.  It is just that the peons who like to uphold precedent will be discouraged from taking a different view on the matter and that law enforcement will believe they have a mandate to treat everyone like they treated this man.

Bottom line:  If I was psychologically tormented by police into confessing to a crime I didn't do simply because I thought that I was asserting an assumed right in my own way but to no avail, I would believe I was unjustly treated by my government.

Offline Dig

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Re: SCOTUS Decision: Suspects must say they want to be silent
« Reply #14 on: June 01, 2010, 08:15:39 PM »
The point is that Constitutional rights in cases of common law are assumed.  One does not have to declare their rights in order for them to be recognized and in effect.  If someone is not saying a word when they are interrogated that doesn't mean you can badger him for three hours until he finally snaps or until he declares a right that is already supposed to be assumed.  The Fifth Amendment exists to protect the layman from deceptive psychological maneuvers that lawyers and law enforcement use to unwittingly coax a false confession.  A person who is scared to death by being brought under police interrogation shouldn't be forced to speak in order for their 5th Amendment rights to be recognized.  You must speak in order to be silent?  What sense does that make?  By SCOTUS declaring that one must declare a constitutionally-protected and assumed right in order for it to be in effect has dire ramifications for the rest of the Bill of Rights.  One could argue that since you didn't declare that you wanted protection from unwarranted search and seizure that it wasn't in effect and that the police can grab anything of yours that they want without probable cause.  To declare that one Constitutional right must be declared in order to be implemented implies that all Constitutional rights must be declared in order to be implemented.  That is not how the system was devised.

And yes, the Supreme Court definitely has the authority to decide court cases; but my point was that their decisions are not legally binding in the general sense.  Just because the Supreme Court ruled against this man's case does not mean that future smaller courts are prevented from ruling differently in a similar or identical case.  It is just that the peons who like to uphold precedent will be discouraged from taking a different view on the matter and that law enforcement will believe they have a mandate to treat everyone like they treated this man.

Bottom line:  If I was psychologically tormented by police into confessing to a crime I didn't do simply because I thought that I was asserting an assumed right in my own way but to no avail, I would believe I was unjustly treated by my government.

Damn fine analysis!

I personally would further beat the dead horse and say the rights are bestowed by our creator and the SCOTUS cannot change the constitution, nor can they deny any human those inalienable rights protected by said constitution, even in a 9-0 decision (Sotomayor is the first justice I have ever seen back this truth up!). For them to have that power is to say that they are not human and not succeptible to corruption, manipulation, insanity, and error...which they most certainly are.
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Offline zdux0012

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Miranda rights attacked by Supreme Court
« Reply #15 on: June 01, 2010, 10:17:54 PM »
http://www.nytimes.com/2010/06/02/us/02scotus.html


Mere Silence Doesn’t Invoke Miranda, Justices Say
By ADAM LIPTAK
Published: June 1, 2010


WASHINGTON — Criminal suspects seeking to protect their right to remain silent must speak up to invoke it, the Supreme Court ruled on Tuesday, refining the court’s landmark 1966 ruling in Miranda v. Arizona.
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      Times Topics: Miranda Warnings | U.S. Supreme Court

Justice Anthony M. Kennedy, writing for the majority in a 5-to-4 decision that split along familiar ideological lines, did not disturb Miranda’s requirement that suspects be told they have the right to remain silent. But he said courts need not suppress statements made by defendants who received such warnings, did not expressly waive their rights and spoke only after remaining silent through hours of interrogation.

Justice Sonia Sotomayor, in her first major dissent, said the decision “turns Miranda upside down” and “bodes poorly for the fundamental principles that Miranda protects.”

Monday’s decision followed two in February that also narrowed and clarified the scope of the Miranda decision. One allowed police officers to vary the wording of the warning; the other allowed a second round of questioning of suspects who had invoked their rights so long as two weeks had passed since their release from custody.

The latest case concerned Van Chester Thompkins, a Michigan man accused of shooting another man to death in 2000 outside a mall. Arrested a year later, Mr. Thompkins was read his Miranda rights but refused to sign a form acknowledging that he understood them.

Mr. Thompkins then remained almost entirely silent in the face of three hours of interrogation, though he did say that his chair was hard and that he did not want a peppermint.

After two hours and 45 minutes of questioning, Mr. Thompkins said yes in response to each of three questions: “Do you believe in God?” “Do you pray to God?” And, crucially, “Do you pray to God to forgive you for shooting that boy down?”

His affirmative response to the last question was used against him at trial, and he was convicted of first-degree murder. The federal appeals court in Cincinnati ruled in 2008 that his statement should have been excluded because prosecutors could not prove that Mr. Thompkins had knowingly and voluntarily waived his right to remain silent.

Justice Kennedy acknowledged that “some language in Miranda could be read to indicate that waivers are difficult to establish absent an explicit written waiver or a formal, express oral statement.”

Indeed, the Miranda decision 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.” It added that the government faced “a heavy burden” in trying to prove that a suspect’s waiver was knowing and intelligent.

Justice Kennedy said that decisions since Miranda had undercut its language and that a more sensible rule put the burden on suspects to invoke their rights.

“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 the police,” Justice Kennedy wrote. Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. joined Justice Kennedy’s opinion.

In her dissent, Justice Sotomayor said the majority had created a kind of paradox. “A suspect who wishes to guard his right to remain silent,” she wrote, “must, counterintuitively, speak.”

Justice Kennedy said that people who knew their rights and acted “in a manner inconsistent with their exercise” might be presumed to have waived their rights, meaning that responding to police questioning is itself an implied waiver of the right to remain silent.

Justice Sotomayor, in her dissent, said “these principles flatly contradict” earlier decisions from the court.

“At best, the court today creates an unworkable and conflicting set of presumptions,” she wrote. “At worst, it overrules sub silentio an essential aspect of the protections Miranda has long provided.”

The better practice in the face of ambiguous responses from a suspect, Justice Sotomayor wrote, would be for the police to ask follow-up questions like, “Do you want to talk to us?”

Justices John Paul Stevens, Ruth Bader Ginsburg and Stephen G. Breyer joined Justice Sotomayor’s dissent.

Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation, a victims’ rights group, said Monday’s decision, Berghuis v. Thompkins, No. 08-1470, was a sensible accommodation.

“The Supreme Court recognized the practical realities that the police face in dealing with suspects,” Mr. Scheidegger said. “They don’t always answer the waiver question clearly. When they do not, the bright-line rule of Miranda should not apply, and the statement should be admissible as long as it is not compelled.”

The court also issued decisions in cases involving torture victims and people convicted of sex crimes.

In Samantar v. Yousuf, No. 08-1555, the court unanimously removed one possible legal roadblock to a suit against Mohamed Ali Samantar, who served as Somalia’s minister of defense and prime minister and now lives in Virginia. The plaintiffs in the case said Mr. Samantar had directed a campaign of torture and killings against them and their families.

Mr. Samantar, who has called those accusations baseless, argued that the Foreign Sovereign Immunities Act of 1976 provided him with immunity from suit.

The court, in an opinion by Justice Stevens, said that law applied to foreign states and the entities they controlled. It does not, Justice Stevens wrote, “include foreign officials.”

But Justice Stevens went on to say that Mr. Samantar may nonetheless be immune from suit under other legal principles, emphasizing that the court had decided a narrow question.

“Whether petitioner may be entitled to immunity under the common law, and whether he may have other valid defenses to the grave charges against him,” Justice Stevens wrote, “are matters to be addressed in the first instance” by the trial court.

In Carr v. United States, No. 08-1301, the court considered a 2006 federal law that made it a crime for sex offenders to fail to register with the authorities after traveling to another state. The question in the case was whether that travel could take place before the law became effective.

Justice Sotomayor, writing for the majority in the 6-to-3 decision, said the law applied to post-enactment travel. She relied largely on the law’s use of the present tense in its use of the word “travels.”

In dissent, Justice Alito, writing for himself and Justices Thomas and Ginsburg, said that interpretation, made at some length, ignored other more plausible readings of the law.

“A bad argument,” Justice Alito said of Justice Sotomayor’s reasoning, “does not improve with repetition.”
A version of this article appeared in print on June 2, 2010, on page A15 of the New York edition.
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Offline Kilika

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Re: SCOTUS Decision: Suspects must say they want to be silent
« Reply #16 on: June 02, 2010, 08:11:07 AM »
The point is that Constitutional rights in cases of common law are assumed.  One does not have to declare their rights in order for them to be recognized and in effect.  (1)If someone is not saying a word when they are interrogated that doesn't mean you can badger him for three hours until he finally snaps or until he declares a right that is already supposed to be assumed.  (2)The Fifth Amendment exists to protect the layman from deceptive psychological maneuvers that lawyers and law enforcement use to unwittingly coax a false confession.  (3)A person who is scared to death by being brought under police interrogation shouldn't be forced to speak in order for their 5th Amendment rights to be recognized.  You must speak in order to be silent?  What sense does that make?  (4)By SCOTUS declaring that one must declare a constitutionally-protected and assumed right in order for it to be in effect has dire ramifications for the rest of the Bill of Rights.  (5)One could argue that since you didn't declare that you wanted protection from unwarranted search and seizure that it wasn't in effect and that the police can grab anything of yours that they want without probable cause.  (6)To declare that one Constitutional right must be declared in order to be implemented implies that all Constitutional rights must be declared in order to be implemented.  That is not how the system was devised.

And yes, the Supreme Court definitely has the authority to decide court cases; but my point was that their decisions are not legally binding in the general sense.  Just because the Supreme Court ruled against this man's case does not mean that future smaller courts are prevented from ruling differently in a similar or identical case.  It is just that the peons who like to uphold precedent will be discouraged from taking a different view on the matter and that law enforcement will believe they have a mandate to treat everyone like they treated this man.

Bottom line:  If I was psychologically tormented by police into confessing to a crime I didn't do simply because I thought that I was asserting an assumed right in my own way but to no avail, I would believe I was unjustly treated by my government.

(1) You feel they can't badger them but that's exactly what they do, regardless of their right to remain silent, and they do it for as long as you let them and the courts allow it, even alowing the cops to lie to the suspect during questioning, yet that won't be held as evidence of wrongdoing against the cops, but if you lie to the cops that will be held against you in a court of law. That's reality. And they don't freely offer you an attorney before your interrogated do they? You have to ask for one, right? Obviously, the "assumed right" is not considered by police as it is or they wouldn't deceive people when interrogating by lying to the suspect or not offering a lawyer up front. Police assume they can get you to talk unless you say your not talking. That's why they try to keep the suspect talking or get them to talk so they will incriminate themselves or provide crucial evidence to the case. They know once a suspect "lawyers up", the interview is over. Just because a person sits there for 3 hours and says nothing, that is no indication the person won't talk. That's why the cops will keep at it till the person breaks OR says they are no longer talking. In a perfect world, the police would actually honor the Constitution and not treat people the way they do, but that's not reality. Assumed rights hasn't stopped the cops up to now.

If a cop asks you if you understand your right to remain silent, do you have to answer? If you don't give any answer, are you then free to go? How long should a cop take to "assume" by your silence that you are exercising your 5th Amendment rights? One hour of no talking? 3 hours?

(2) That hasn't worked out very well now has it, even with the law the way it is, regardless of a SCOTUS ruling. A court ruling is "assumed" to be based on existing law. A ruling doesn't set law, but can set the legal understanding of "presidence", which is kind of a legal clarification of existing law. As it is, cops try to deceive a person before they read them their rights, because once they read the person their rights, it's whole new ballgame. Besides, if a person doesn't have to talk to exercise their right to be silent, then how do you propose they answer if they understand those assumed rights? When asked if they understand their rights, what do they do, use sign language?

If nothing else, people should at least answer the simple question, "Are you exercising your 5th Amendment rights?" when asked. Should a person declare they are no longer exercising their right to remain silent? Talking is of itself a declaration your waiving that right by your logic, because you say one shouldn't have to verbally declare their right to silence. Talking is the opposite of not talking and your logic says that talking would be the same as not talking. Both are acts committed with the assumption the law is understood and shouldn't have to be stated because it is assumed the person is exercising that right by their actions. That just doesn't hold water.

(3) The suspects emotional state has nothing to do with it, scared or not. Firstly, the citizen has the responsibility to know their rights before they are ever interviewed. Secondly, if a person is sitting there for 2 hours and have said nothing, how is the cop to know they won't speak at all? At what point should the cops give up and "assume" the person isn't going to talk and is exercising their right to remain silent? If the right is assumed, and thus the cops must recognize that, how do they do it then? Why even bring a person in for questioning? When the cops go to a suspect, how do they proceed with questioning the person?

If they say, "Come down to the station, we have some questions to ask you." and the person says nothing, what next? It would seem the cops would assume your exercising your right to silence and just go away, but they don't do they? If your sitting in a room exercising your right to silence, the question is how did you get to that room in the first place without talking, seeing that your logic says silence is the statement that your not going to talk under the 5th, so then this means you didn't say anything before you entered that room your now in for 3 hours, so how did you get there if the cops knew by your silence when they first confronted you that your not talking? See what I'm saying? If at first encounter, you take the 5th and say nothing to the cops at your front door, how then would you end up in a room for 3 hours if your initial first encounter the cops knew by your silence your not going to talk to them? That suggests you agreed to go to that room, only to remain silent? That makes no sense. You had to verbalize a reply to the cops initially, or under your logic, they wouldn't have bothered asking you to come to the station and thus you wouldn't be in that room for 3 hours not talking.
 
Open your lazy mouth and say, "I'm exercising my 5th amendment rights. I have nothing to say.", or "Am I under arrest?" DONE.

(4) This is your opinion only. Dire? That's fearmongering.

(5) Bad example as your mixing words rights, with physical items/property rights. Two different things. Police don't have to have probable cause to ask a question, but they do if they want to take your stuff or enter your property.

(6) Now that is just silly logic. Again, a fear tactic. The operative word is again "assumed". Your assumming. That statement is pure opinion. If what you say is true, then a presidential candidate shouldn't have to present their documents to prove their eligible, but alas, we still require proof don't we? We don't take their word for it, and in fact, your logic says the candidate shouldn't have to prove it because it is assumed they know they must meet certain standards. We don't assume they know the laws, we ask them to meet the requirements of the law. And you see how that has gone too! A person that runs for president knows full well they must meet certain conditions under the right to run for president, yet we still force the candidate to state they know their rights under the Constitution by providing proof don't we? So what you claim will happen as a result of this ruling has already been happening as it is. Your too late with crying wolf.

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Offline agentbluescreen

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Re: SCOTUS, Elena Kagan and the Death of Miranda
« Reply #17 on: June 02, 2010, 09:29:48 AM »
I think your sort of right, at least about how this decision will be used by both sides. However, you seem to be misunderstanding what the Supreme Court does. It rules on an individual case and they use the law, including the Constitution. They are required to interpret the Constitution, or else they couldn't rule constitutionally! They don't make law, they just make a ruling in a specific case, one case at a time like any other court. And in this case, they were right in my opinion. The person can't just sit there for 3 hours and selectively answer questions, and then expect for it all to fall under the 5th. That's a joke.

Should a person be required to say they are remaining silent? It doesn't hurt anything at all. People have conversations so long as they particiapte, but if a suspect is questioned and they say nothing at all, I do think that is pretty close to exercising the right to remain silent, but so long as they have said nothing, it is only an assumption. There is no incrimination to saying you want to remain silent or want an attorney. But you can't answer questions, however simple an answer, then after being charged, claim the 5th for all that you did happen to say. That just doesn't work that way. That makes a mockery of the 5th amendment

Afterall, if you want to exercise your right to freedom, you must ask if your under arrest, and if not, you free to leave right then. They either MUST arrst you on some charge, or let you go, and if you don't talk enough to say you want to leave, then your stuck there for as long as they want to badger you. You have to verbalize your desires, even if it's to remain silent, or to leave an interragation room. You also can talk all you want, then exercise your right to no longer speak and ask for a lawyer. But, you can't go back and claim the 5th to all you said before you informed them your not talkng anymore.

This ruling is a non-story all the way.

So basically you have the right to be waterboarded

Offline phosphene

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Re: SCOTUS, Elena Kagan and the Death of Miranda
« Reply #18 on: June 02, 2010, 09:41:23 AM »
The robed ones operate on the premise of "silent acquiescence".....silence=consent. If you do not formally object to their claims, charges, jurisdiction, etc. they assume you accept them.

Silence is acquiescence (aka. silent acquiescence and acquiescence by silence) is a related doctrine that can mean, and have the legal effect, that when confronted with a wrong or an act that can be considered a tortious act, where one’s silence may mean that one accepts or permits such acts without protest or claim thereby loses rights to a claim of any loss or damage. U.S. Supreme Court Central Pacific Railway Co. v. Alameda County, 284 U.S. 463 (1932)

Once you understand that, then this ruling makes more sense. So, now, with this ruling, all you have to do is "say something" to "formally" object to the interrogation. instead of being forced to file paperwork with the county clerk to make it official. since its kinda hard to do that when yer being interrogated.
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Offline Kilika

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Re: SCOTUS, Elena Kagan and the Death of Miranda
« Reply #19 on: June 02, 2010, 10:02:42 AM »
The robed ones operate on the premise of "silent acquiescence".....silence=consent. If you do not formally object to their claims, charges, jurisdiction, etc. they assume you accept them.

Silence is acquiescence (aka. silent acquiescence and acquiescence by silence) is a related doctrine that can mean, and have the legal effect, that when confronted with a wrong or an act that can be considered a tortious act, where one’s silence may mean that one accepts or permits such acts without protest or claim thereby loses rights to a claim of any loss or damage. U.S. Supreme Court Central Pacific Railway Co. v. Alameda County, 284 U.S. 463 (1932)

Once you understand that, then this ruling makes more sense. So, now, with this ruling, all you have to do is "say something" to "formally" object.

Yes, and that is why I think the ruling makes sense. If you don't exercise your rights in many different scenarios, then your silence will be construed as you not exercising your rights or that you agree with somebody else's definition of rights, unless you do what? Break your silence. If a company steals from you by overcharging, while you have a legal right to seek compensation for the wrong they committed against you, if you remain silent, which is your "assumed right", then that crime will go unpunished or even validated as a crime. Your silence is "silent aquiescence" to no alledged crime.
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Offline Dig

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Re: SCOTUS, Elena Kagan and the Death of Miranda
« Reply #20 on: June 11, 2010, 04:54:02 PM »
Hey look...Bilderberg's WaPo is desperately trying to say that America wants GOLDMAN SACHS to own the US SUPREME COURT...



Bilderberg wants you to believe that most Americans support Kagan's nomination to Supreme Court
Because they think you are f*cking stupid and cannot read her Yale Anti-Freedom thesis for yourself
http://www.washingtonpost.com/wp-dyn/content/article/2010/06/11/AR2010061101833.html?hpid=topnews
By Jon Cohen
Washington Post Staff Writer
Friday, June 11, 2010; 6:55 AM


Nearly six in 10 Americans say the Senate should vote to confirm U.S. Solicitor General Elena Kagan's nomination to the Supreme Court, but most also want her to answer questions about how she would have decided past cases and to reveal her stand on legal abortion.

At 58 percent in the new Washington Post-ABC News poll, public support for Kagan's confirmation is on par with that for now-Justice Sonia Sotomayor when she was tapped last year as President Obama's first nominee for the court. About a quarter, 24 percent, oppose Kagan; 18 percent express no opinion.

Democrats overwhelmingly back the president's pick, who would become the third woman serving on the nine-justice court, as do independents, by about a 2 to 1 ratio. More than a third of Republicans also support Kagan's confirmation, putting her cross-party support exactly where Sotomayor's was before her hearings started.

Last June, 36 percent of Republicans backed Sotomayor, with 43 percent opposed, precisely where Kagan's Republican numbers are now. But in a poll taken a month later, as the Senate Judiciary Committee hearings on Sotomayor were wrapping up, GOP opposition to her confirmation spiked to 57 percent.

This year, Republican lawmakers are sure to ask Kagan's opinions about past cases and will point to Kagan's published support for a more open, lively exchange on constitutional issues. Nominees are generally reluctant to engage on this score, amounting to a process Kagan deemed a "vapid and hollow charade."

In a 1995 book review, Kagan wrote about "the essential rightness -- the legitimacy and the desirability -- of exploring a Supreme Court nominee's set of constitutional views and commitments," and two-thirds of Americans say she should answer questions about how she would have ruled on past court cases. Majorities, though slimmer ones, said the same of Chief Justice John G. Roberts Jr. before his turn on the Senate stage.

Large majorities of Democrats, Republicans and independents say Kagan should answer such questions, but the president's opponents are more eager to hear the details than are his supporters. Republicans are more apt than Democrats to want Kagan to give her opinions on case law, just as Democrats were significantly more likely than Republicans to want Roberts -- a George W. Bush nominee -- to do so in 2005. A majority of Republicans said Roberts should not answer such questions.

The desire to have the other side's nominee go on the record is particularly true when it comes to abortion. Fully 66 percent of Republicans want Kagan to publicly state her position on the issue, compared with 46 percent of Democrats. It was reversed in July 2005 before Roberts' hearing. At that time, 78 percent of Democrats wanted Roberts to go on record about the matter; only 46 percent of Republicans agreed.

The poll was conducted June 3 to 6 among a random sample of 1,004 adults contacted by conventional and cellular telephone. The results from the full poll have a margin of sampling error of plus or minus three percentage points.
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Offline Kilika

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Re: SCOTUS, Elena Kagan and the Death of Miranda
« Reply #21 on: June 12, 2010, 05:33:38 AM »
Hmmm, article by Jon Cohen, Washington Post. and the poll was by who? The Washington Post! Go figure. ::)

These people really are insane aren't they?
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