Who Will Speak for the Defense on the Supreme Court?


On the second day of his confirmation hearing for the Supreme Court, then-Solicitor General Thurgood Marshall got into a verbal tussle with Sen. Sam Ervin of North Carolina. Only a year before Marshall's hearing, the Supreme Court had decided Miranda v. Arizona, the case in which the Supreme Court held that prosecutors would be unable to use statements given by the accused during police interrogation unless law enforcement had fully informed the accused of their right to invoke the constitutional privilege against self-incrimination.

Then, as it is now, Miranda was an unpopular decision with conservatives. Ervin began by leading Marshall through a series of questions designed to showcase Ervin's belief that the Warren Court was engaged in dangerous judicial activism. Marshall nimbly avoided Ervin's traps. Then Ervin got around to Miranda. Ervin stated his view that the Constitution's Fifth Amendment provision prohibiting the state from ''compelling'' self-incriminating testimony from witnesses ''cannot rightly be applied to voluntary confessions made under any circumstances, because voluntary confessions are voluntarily made, are they not?'' After several minutes of back and forth about the meaning of ''voluntary,'' Marshall pushed back: ''I tried a case in Oklahoma,'' he said, ''where the man 'voluntarily' confessed after he was beaten up for six days. He 'voluntarily' confessed.''

After this week's  5-4 decision in Berghuis v. Thompkins (PDF), we may well expect a conversation on the scope of Miranda to make an appearance again in a solicitor general's confirmation hearing for the Supreme Court when hearings for Elena Kagan open later this month. In Berghuis, the Supreme Court peels back some of the protection of Miranda by ruling  that police need not to curtail their interrogation of a criminal detainee unless that detainee asks for a lawyer.


Merely remaining silent is not enough to demonstrate that one seeks to exercise the right to remain silent. In Berghuis, Van Chester Thompkins was arrested and questioned about a homicide that occurred at a mall in Michigan. He was questioned for nearly three hours by police and remained silent. Finally, police detectives asked whether he believed in God, whether he prayed to God and whether he prayed for forgiveness for the shooting. Thompkins haltingly answered ''yes'' to each of the questions. He refused to provide a written confession and the interrogation ended. Thompkins' one word ''statement'' was used against him in charging and prosecuting him. He was convicted and sentenced to life in prison without parole.

So police officers may now interrogate detainees for hours on end—no limit is suggested by the court—and so long as the detainee does not use the magic words that expressly indicate a refusal to answer questions or the desire for an attorney, any words uttered—no matter how few—may be used against him. As Justice Sonia Sotomayor says in dissent, today's decision, ''turns Miranda upside down,'' requiring criminal defendants to ''unambiguously invoke their right to remain silent—which counter-intuitively, requires them to speak.''


It's ironic that the strongly worded dissent comes from Justice Sotomayor—a career prosecutor. They could well have come from Justice Marshall, whose Oklahoma client ''voluntarily confessed'' after being beaten by police. But Sotomayor's hands-on experience with criminal prosecutions, fully on display in her real-world understanding of the pressures of interrogation in custody and the incentives of police that she articulates in her dissent, demonstrates the importance of having justices on the Supreme Court whose practical experience can inform the court's approach to criminal cases.

Justice Kennedy's opinion is a tortured but determined effort to undo a core aspect of Miranda with little direction on how police should apply the decision without doing violence to the landmark opinion the majority contends remains intact. In contrast, Sotomayor's dissent shows the unique contribution she is already making to the court. (Although it's worth remembering that there are other decisions this term—particularly those involving ineffective assistance of defense counsel—in which Justice Sotomayor has appeared unable to fully appreciate the realities and challenges of effective criminal defense work.) The fact that she's a former prosecutor doing the heavy lifting for a defense perspective lends a certain power to her opinion, but also points out the absence of justices on the Supreme Court like Marshall, who've actually defended the accused at trial.


What Berghuis reflects, and what a look back at Justice Marshall's confirmation hearing reminds us, is that something troubling has happened in the legal profession and in public consciousness in the last 40 years. The highest echelons of the legal profession have been dominated by former prosecutors.  There are currently three former prosecutors serving on the Supreme Court (Sotomayor, Samuel Alito and Stephen Breyer). Justice Marshall is the last Supreme Court justice who devoted a large part of his practice to criminal defense work. Criminal defense attorneys are almost never included on Supreme Court shortlists, despite the fact that some of the most prominent and accomplished lawyers in the profession, like Bryan Stevenson, have devoted their lives to defense work. The post-9/11 world has even further emphasized the interests of police and prosecutors. Even the attorney general of the United States, Eric Holder—otherwise a champion of civil liberties—has articulated support for limiting Miranda requirements for American terrorism suspects.

But protecting the rights of the accused against the state was a serious preoccupation of the Constitution's framers. The Fourth Amendment (prohibition against unreasonable searches and seizures), the Fifth Amendment (self-incrimination) and the Sixth Amendment (right to impartial tribunal and jury of peers) are almost entirely concerned with curtailing the excesses of law enforcement and ensuring fairness for criminal defendants. You wouldn't know this judging by the state of our public discourse about criminal law. Despite the regular spate each year of police abuse cases, reported incidents of prosecutorial misconduct (the Duke rape case was only a drop in the bucket), and wrongly convicted prisoners released after decades in prison, American public discourse about the law unfairly denies the significance of criminal defense work in assuring the effectiveness of our criminal justice system.


Without question, crime is a serious problem in many places in this country. It is a matter of grave concern today, just as it was when Sen. Ervin tried to pigeonhole Justice Marshall to discredit Miranda. But defending the rights of the accused is also a centerpiece of our democracy. Today's majority decision is a blow to the rights of the accused. But it's an irony that should make us pause, that it takes a former prosecutor on the Supreme Court to articulate, in dissent, the importance of protecting the criminal detainee from the pressures of the interrogation room.  We should applaud Justice Sotomayor's dissent in Berghuis, but also recognize that we need the voices and experiences of criminal defense attorneys on the Supreme Court and yes, even on television, to help us fully appreciate and understand what the Constitution demands of our criminal justice system.

Sherrilyn Ifill, who teaches at the University of Maryland, writes about the law for The Root.

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