Introducing the "Down to the Jailhouse" blog of David Walsh-Little - Baltimore CWer
Frank Cordaro
to his Down to the Jailhouse blog. David is married to Kate Walsh,
daughter of Willa Bickham and Breandan Walsh of Viva CW House fame.
Both David and Kate are former members of the Viva CW House. David
does poverty law and was the attorney for the God's of Metal
Plowshares back in 1998. They have three beautiful young daughters and
are still very much connected to the work of Viva House. This posting
is an introduction to David and his blog. Feel free to sign up for
future postings. FC)
---------- Forwarded message ----------
From: David Walsh-Little <walsh...@verizon.net>
Date: Sun, Jun 6, 2010
Frank-
Here is a reflection on the latest decision of the Supreme Court
addressing the Miranda decision. It is posted at my blog at:
http://downtothejailhouse.wordpress.com/author/downtothejailhouse/
(About This Blog: Down to the Jailhouse is a forum to address issues
of criminal justice and its social effect from the perspective of
marginalized and impoverished people who are regularly left out of
mainsteam media conversations on these important issues. It's title is
appropriately lifted from a verse from the civil rights song, "If You
Miss Me at the Back of the Bus". David Walsh-Little is a graduate of
Fordham University and Columbia University Law School. He can be
reached at baltimor...@verizon.net. David is an attorney at the
Office of the Public Defender in Baltimore, Maryland. His writing
reflects only his views and not any official position of the Office of
the Public Defender.)
David Walsh-Little <walsh...@verizon.net>
312 Rossiter Ave. Baltimore MN 21212
--------------------------------------
THE LOBOTOMY OF MIRANDA
June 6, 2010
Most people believe that if the police arrest you, they have a good
reason to do so. If the police arrest you, they know you did it,
whether or not they can prove it. If the police arrest you, maybe you
can “get off” somehow with a trick or a slick attorney but you are the
manipulator, playing fast and loose with the truth. And if you confess
well, you undoubtedly did “it” and the rest is a big game and
represents the “problem” of the criminal justice system- just read
your morning newspaper.
Sadly, this has now become the view of the Supreme Court in their
latest decision gutting the decision in Miranda v. Arizona. Everyone
knows Miranda from television cop shows lauding the police as the
suffering civil servants working full force against the elitist courts
forcing them to tell the known guilty suspects of their rights.
Hopefully, the suspects will ignore their rights, tell the truth, and
confess to their crimes. It makes the prosecution so much easier.
People don’t believe it, but false confessions happen. In a recent
case of mine, a client fully confessed to a murder that someone else
had committed. With the stress of the interrogation, fear of
retaliation from the actual murderer, and a promise to be released by
the detective, an audiotape recorded a confession that landed my
client in the city jail facing a homicide charge, all with the wrong
person arrested.. As other witnesses came forward and identified the
actual killer, doubt after doubt was cast on the statement. To the
credit of the detective and the prosecutor in the case, investigation
continued and ultimately the charges were dropped but only after
months of pretrial incarceration.
In an interrogation room, it is the police that have control. They
usually have custody of the person they are interrogating. The police
control where the interrogation is conducted, how long it is
conducted, and whether the suspect gets food, water, or a chance to
use the restroom. The police are allowed to use psychological tactics
to get the suspect to talk and to lie about the evidence they have if
that serves their purpose.
Before the Supreme Court decided Berghuis v. Thompkins, last week, the
police had to notify the accused of his rights and ensure that the
person being interrogated waived those rights to go forward with an
interrogation. It gave the person being questioned a clear and
unambiguous opportunity to end the interaction and consult with an
attorney before going forward. After Berghuis, any ambiguity about
whether the suspect waived his rights to speak to the police will be
resolved in favor of the police. The police don’t have to ensure you
actually want to speak with them before going forward with an
interrogation. The facts in Berghuis illustrate the problem.
Van Chester Thompkins was arrested in Ohio for a murder that occurred
in Michigan. While waiting for extradition, two Michigan detectives
traveled to Ohio to question Mr. Thompkins in a typical 8 X 10
interrogation room. The detectives read Mr. Thompkins his rights, but
the accused never stated that he wanted to waive his rights and speak
to the detectives without a lawyer, so the police simply started the
interrogation.
Now one would think that the best way to exercise your right to remain
silent is well, to remain quiet and to say nothing and that is exactly
what Mr. Thompkins did. He didn’t answer any questions in the first
ten minutes, the first hour, or the second hour. Almost three hours
into the questioning, the conversation turned to religion. Mr.
Thompkins admitted that he believed in God, and that he prayed to his
God for committing the murder. It was this last statement that was the
basis of the case against him.
If someone doesn’t respond to your questions for over two hours, I
think almost anyone would agree, that whatever is going on, it isn’t a
mutual voluntary conversation. The Supreme Court concluded to the
contrary however. As long as the suspect doesn’t say the magic words
“I wish to remain silent”, the questioning can continue, and it is
unclear how long the police will be allowed to keep going, four hours
of silence, six hours, eight hours, more?
In an effort to assist the police, and at the expense of Miranda, the
Supreme Court has reached the absurd, sordid, and novel conclusion
that in order to assert your Constitutional right to remain silent,
you can’t remain silent, you have to assert your rights by not being
silent- without the interrogator telling you about the choice. The
lesson for the police is simple. Don’t ask whether the person you are
questioning actually wants to speak with you, just beat them down
until they tell you what you want to close your case. The highest
court in the land has your back.
The innocent, the poor, people of color, left wing activists, well,
make sure you say the magic words “I am asserting my right to remain
silent” because the highest court in the land isn‘t looking out for
you. It is still your Constitutional right, but obfuscation by the
police is fine- at the expense of the rest of us, or a least those of
us who still believe in the Bill of Rights.
David Walsh-Little <walsh...@verizon.net>
312 Rossiter Ave. Baltimore MN 21212