Bicker, Back & Forth, PS.

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.’’

“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).

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