Bicker, Back & Forth, PS.

US Supreme Court turns Miranda “upside down”.

Daryl — Wed, 02 Jun 2010 15:53:53 +0000

The US Supreme Court, in what I consider to be a blindingly bad opinion, ruled yesterday that a criminal suspect must explicitly invoke the right to remain silent during a police interrogation, a decision that dissenting liberal justices said turns the protections of a Miranda warning “upside down.’’

The court ruled 5 to 4 that a Michigan defendant who incriminated himself in a fatal shooting after nearly three hours of questioning thus gave up his right to silence, and the statement could be used against him at trial.

“Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent,’’ Justice Anthony Kennedy wrote for the court’s conservatives.

Suspect Van Chester Thompkins remained mostly silent for three hours of interrogation after reading and being told of his rights to remain silent and have an attorney. He neither acknowledged he was willing to talk nor wanted questioning to stop. To my mind sitting mostly silent for 3 hrs of interrogation after having been told of his right to remain silent seems very unambiguous to me.

But detectives persisted in what one called mostly a “monologue’’ until asking Thompkins whether he believed in God. When asked, “Do you pray to God to forgive you for shooting that boy down?’’ Thompkins answered, “Yes.’’

The statement was used against him, and Thompkins was convicted of killing Samuel Morris outside a strip mall in Southfield, Mich.

The US Court of Appeals for the Sixth Circuit said that Thompkins’s silence for two hours and 45 minutes of the interrogation “offered a clear and unequivocal message to the officers: Thompkins did not wish to waive his rights.’’

But Kennedy said it was not clear enough. “If Thompkins wanted to remain silent, he could have said nothing in response to (the detective’s) questions, or he could have unambiguously involved his Miranda rights and ended the interrogation,’’ wrote Kennedy, who was joined by Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas, and Samuel A. Alito Jr. “The fact that Thompkins made a statement about three hours after receiving a Miranda warning does not overcome the fact that he engaged in a course of conduct indicating waiver.’’

Kennedy said the court’s new rule — in the case of Berghuis v. Thompkins — was an extension of the logic in a previous case that said a suspect must affirmatively assert the right to counsel.

But Justice Sonia Sotomayor, in the sharpest dissent of her young career on the court, accused the majority of casting aside judicial restraint and creating a rule that marks “a substantial retreat from the protection against compelled self-incrimination’’ that Miranda established more than 40 years ago.

“Today’s decision turns Miranda upside down,’’ Sotomayor wrote. “Criminal suspects must now unambiguously invoke their right to remain silent, which, counterintuitively, requires them to speak.’’

She was joined by Justices John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer.

Elena Kagan, nominated by President Obama to join the court, sided with the police as US solicitor general when the case came before the court. She would replace Justice Stevens. Of course as US Solicitor General it was her job to represent law enforcement – so I’m not sure how much that tells us about what she may have done were she already a sitting Justice.

The Constitution “does not require that the police interpret ambiguous statements as invocations of Miranda rights,’’ Kagan said in court papers. (in her role as US Solicitor General).

Financial Reform one step closer.

Daryl — Wed, 26 May 2010 19:11:48 +0000

Despite huge opposition from the big Wall Street banks, financial reform has passed the Senate! This is a huge step toward creating a banking system that serves Main Street, not just Wall Street.

Here’s what the Senate bill will do if made law:

Create a Consumer Financial Protection Bureau. The CFPB will be a watchdog for consumers to make sure mortgages, credit cards and other financial products aren’t full of tricks and traps in the fine print.
End the casino economy and bring sunlight to shadowy derivatives market. The $600 trillion derivatives market will now have the light of day shining on the market (with exchange trading) and be held accountable with capital requirements (with clearing).

Click here to thank your Senators for their vote on financial reform — or to tell them you’re disappointed.

Next up, the House and Senate will have a conference committee to hammer out the differences between their two bills. (Read about the House version here.) Once the committee agrees on a bill, it must be passed by a majority in the House and by 60 votes in the Senate.

Almost there – though the current bill is compromised somewhat by the well funded interests of the banking industry, every little bit helps.

Jonnie Bray leaves Colville Tribes’ Prosecution Team.

Daryl — Wed, 26 May 2010 18:40:11 +0000

It seems the titular head of the Tribe’s Prosecution, Jonnie Bray is leaving for greener ( and perhaps more appreciative ) pastures.

I’m a little surprised as I hadn’t heard a word about at work but got the news from Steve Graham’s Blog

http://www.grahamlawyerblog.com/2010/05/15/long-time-prosecutor-jonnie-bray-leaves-colville-tribe-for-southwest/

REMINDER April 6 Webinar with Elizabeth Warren on the CFPA

Daryl — Mon, 05 Apr 2010 06:08:54 +0000

Next week, on Tuesday, April 6th from 4:00-4:45pm EST, Americans for Financial Reform is hosting a special webinar discussion with Professor Elizabeth Warren and AFR Director Heather Booth for the general public. It will focus on where things stand in the movement for financial reform, and how everyday citizens can get involved in the fight to rein in the big banks and get the economy back on track.

Find out about reform efforts in Congress-including the Senate bill currently being debated, and the House bill which passed in December.
Learn why we need a Consumer Financial Protection Agency to protect us from abusive financial products.
Ask Professor Warren and Heather Booth your question about financial reform.
Hear about ways to join the fight around the country and online.

Space is limited. Click here to sign up now. For background, see the recent New York Times profile on Professor Warren, Behind Consumer Agency Idea, a Tireless Advocate, or this article in Politico.

Attorney Training for Service as a Pro Tem

Daryl — Mon, 05 Apr 2010 05:44:08 +0000

This is the first time I’ve attended back to back CLE training. Yesterday Gonzaga’s Inaugural Indian Law CLE – now two days of training for the bench.

My one and only experience as a judge was during the 1994-5 YMCA Washington State Moot Court competition. I was clerking for the Judges of the Benton/Franklin County Superior Courts at the time and as low man on the totem pole (so low I’m not sure I was on the pole at all) I was the one ‘donated’ by the court when a local school asked for a Moot Court Competition attorney coach.

I don’t recall the teacher but I was teamed with a passionate young man from the High School in Finley – near Kennewick. Well it was close to Kennewick geographically but not socio-economically at all. It was a poor school in a poor town but these kids not really knowing what they were getting themselves into jumped right in (thanks primarily to the passion of their teacher coach).

I was helpful because unlike other teams we had the advantage of practicing in real court rooms (in evenings and on weekends) – it helped the students with confidence and with presence. But there I was – when we were one judge short for the local finals and on went the robe, and out marched me as a “moot court” judge. I remember that even though I knew the fact pattern like the back of my hand – from going through it with the students so many times; the task of listening with one eye on the credibility of the witnesses and another on potential objections was flat out exhausting (and the round was barely over a half an hour). It was then that I realized two things. First I realized that being a judge wasn’t easy work at all – it was, in fact far more demanding mentally than being an advocate. The second thing I realized was that one day I wanted to do it for a living.

So, when the pro tem training popped up in my in-box I jumped at it like a cat on a catnip mouse. I was surprised by the turnout, I don’t know the actual number but I’m guessing well in excess of 60 people were there. The organizers indicated that the West side training was attended by over 200 – if I remember correctly.

I won’t go over the agenda part by part, but there was one scenario that is worth mention.

On the first day, in the afternoon there was a section on Diversity. Judge Veronica Alecia-Galvan and Chach Duarte White put together a role play. They acted out an arraignment but the court was held in Spanish and the interpreters were translating to English. With the Judge, Defender and Prosecutor speaking rapidly, the interpreters were barely audible over the noise of people talking over other people and when they were I was missing so much that I could barely follow the process of an Arraignment (something I do 15-20 times a week). After a few minutes I felt completely overwhelmed – unable to sort out the English voices from the Spanish any longer, I noticed myself shutting down and then I realized …….. THIS was what it was like for the many many mono-lingual defendants I’ve represented in courts around the state before. It took the actual experience of being unable to pick up anything but every third word and being unable to follow a familiar process to realize at last just how terrifying it must be to be in a US court filled with people speaking about you and not understanding a word of what is going on.

If I learned nothing else – it was that, and it was a very very valuable lesson to learn.