Speak up, Speak up - You Say You Want to Remain Silent?

by Katherine Scardino

On June 1, 2010, the U.S. Supreme Court watered down a legacy of constitutional rights afforded to all of us.

Who hasn't heard of Miranda rights? My guess is that nearly every U.S. citizen knows about Miranda. It's not uncommon for those I represent to say to me, “Hey, man, that cop didn't read me my rights.” They know that suspects in a criminal investigation have the right to be informed that everything they say can and will be used against them in a court of law. They have to be told that they have the right to a lawyer and the right to refuse to answer questions.

Let's take a look at Miranda v. Arizona. In 1966, Mr. Ernesto Miranda (photo right), a day laborer who'd been convicted and sentenced to 20 to 30 years for rape, kidnapping, and armed robbery, got a second bite at the apple after a history-making Supreme Court decision. The justices ruled that Miranda needed to have been informed of his rights before being interrogated. Afterward Miranda was retried and again found guilty. Ironically, he was sentenced to the identical number of years. Yet while Ernesto Miranda's fate remained unchanged, the "Miranda rights" birthed by his successful appeal had a major impact on American justice.

Based on this landmark decision, it was clear that if a citizen was arrested, he had to be informed of his rights before being questioned. To assure that happened, suspects were asked to initial next to each right as it was read to them. That didn't mean that they couldn't talk to police. If after being told their rights they wanted to make a statement, that was allowed, but only after they signed a waiver in front of a witness. In a very real sense, as U.S. citizens, Miranda was our security blanket. The ruling became so integral a part of our justice system that Chief Justice William H. Rehnquist once said: “the warnings have become part of our national culture” (Dickerson v. United States, 530 U.S. 428 (2000). Like the right to life, liberty, and the pursuit of happiness, the right to be informed of our constitutional rights by law enforcement appeared inalienable.

That's not to say that there haven't been challenges. Over the years, there have been many assaults on our Miranda rights. For instance, in Missouri v. Seibert, 542 U.S. 600 (2004), the Supreme Court halted a controversial practice by police, who withheld Miranda warnings until after they obtained confessions. Despite these frequent official transgressions, however, we've always managed to maintain at least the ruling's spirit.

That is until now. Again, remember that to give a statement without counsel, one that could later be used against him in a trial, the accused had to sign a witnessed document specifically waiving his rights. That was before Berghuis v. Thompkins. You want to invoke your right to remain silent? Great. But post-Berghuis refusing to sign the waiver and remaining silent isn't enough. Now, you'd better speak up and spell out your intentions!

In the Berghuis case, the Supreme Court held that suspects must specifically inform police officers that they are invoking their rights, both to remain silent and that they want a lawyer. In practice, this means that police can keep interrogating a suspect who refuses to talk as long as they want in hopes that the person will crack and start talking. According to his appeal, Thompkins did just that. He refused to sign the waiver and remained silent for three hours, while police bombarded him with questions, before he finally implicated himself in a Michigan murder. Based on his "confession," Thompkins was convicted. He appealed, insisting that the questioning should never have taken place, because by refusing to sign the waiver and remaining silent for hours, he had invoked his Miranda rights. The court decided against him.

Justice Sonia Sotomayor wrote a strong dissent, stating her fellow justices' decision “turns Miranda upside down.” She wrote: “Criminal suspects must now unambiguously invoke their right to remain silent - which counterintuitively requires them to speak.... 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.”

In the Berghuis case, Thompkins was questioned for three hours without making a statement. Then police asked him if he prayed for forgiveness for “shooting that boy down,” and the suspect said one word: “Yes.” Justice Sotomayor said that to believe that a suspect waived his right to remain silent by making an uncoerced statement to police is “a substantial retreat from the protection against compelled self-incrimination that Miranda v. Arizona has long provided during custodial interrogation.”

Many people applaud this expansion of the rights of police. However, think of it this way: You or one of your children is arrested for a DWI. How fast do you call a lawyer? How fast do you want to know your rights and to be sure that these rights are protected and exercised? No one wants a culture where it is acceptable for police to coerce confessions, using either psychological or physical means, or to interrogate citizens for hours and hours at a time without stopping, hoping the suspect will crack. But the Berghuis case holds that you and I can no longer invoke our rights by remaining silent. You must speak up.

What do you think?

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A Lesson in Confessions

by Katherine Scardino

Fade in to a dimly lit small room with a low bulb hanging over a square table. Two hardback, uncomfortable chairs. There is one door to the room with no windows. A young black man is sitting in one of those straight-back chairs facing an older, white man with a badge so big one could not miss it hanging over his belt.

The white man has on stiff, creased Wrangler jeans with shiny polished black cowboy boots and a starched white shirt. His hair is short and graying. His red face is about an inch from the sweating face of the young black man and he is yelling and pounding on the table.

“You know you are lying! Tell me you did it and we can go all go home!”

That is what we generally think of “confessions.” Not very nicely done . . . but productive. However, as with everything else in our lives, I repeat what I have said many times before on Women in Crime Ink - THERE ARE RULES.

When it comes to an accused person giving a statement, here is "The Rule of all rules":

“A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion under the rules hereafter prescribed.”

We have all heard officers on television (or maybe, even in person) recite your “rights” to you. Those rights are referred to as your “Miranda rights,” a slangy term for the holding in Miranda v. Arizona, a case decided by the Supreme Court in 1966. Two of these rights that must be read to you at the time you are making a statement to the police is that (1) you have the right to have an attorney present to advise you before and during any questioning and (2) you have the right to remain silent and not make any statement at all.

There have been literally thousands of cases citing Miranda v. Arizona, where a defendant is contending that his constitutional rights have been violated in some manner. In most criminal cases, the officer at least makes an attempt to question an accused citizen. This accused citizen either cooperates and tells the officer everything he knows, or he refuses to make a statement.

But, whatever he does, it must be done voluntarily. In other words, the officer cannot beat a confession out of you; he cannot promise you something that he knows he cannot deliver to you (such as your freedom); he cannot withhold your attorney from you if he is there and wants to advise you. You have the constitutional right to refuse to say anything, and especially that which may tend to incriminate you.

I bring all this up to you, because Texas has a Death Row inmate who very recently just hit the jackpot - a Federal judge here in Houston just gave him a new trial. He is currently in the process of being removed from Death Row and returned to the Harris County Jail. His name is Robert Fratta. Our own Kelly Seigler was the prosecutor.

In 1994, Robert Fratta was accused of hiring two men to kill his wife. The couple was going through a very contentious divorce/custody fight during that time, and Fratta apparently made several statements to friends about him wanting her dead.

Fratta’s two co-defendants were Howard Guidry and Joseph Prystash. All three men received death sentences.

In all capital cases where the jury has sentenced an individual to death, there is an automatic direct appeal. The convicted person also has a Federal appellate process available to him as well, and it was through this avenue that Fratta’s case got reversed and a new trial granted.

What is important is why. When the police officers arrested Mr. Guidry and brought him to the police station to question him about the death of this lovely, young woman named Farah Fratta, the officer told Mr. Guidry that he could not see his attorney, and then lied to him and said that the lawyer had given Guidry permission to talk to the officers.

So, he did and confessed to being the triggerman in the killing and to being hired by Mr. Fratta, and also implicating the other accomplice, Prystash. After all the dust settled . . . after all the objections and rulings . . . after all three men went through a jury trial in State court (where Guidry’s confession was admitted into evidence in front of each jury, and other hearsay testimony was admitted, but later ruled to be inadmissible) . . . and after all three defendants were sentenced to death . . . after all the appeals . . . Guidry and Fratta walked out of the appellate maze with a chance at a different verdict in State court.

Guidry has already had his retrial; he heard that one-word verdict and the dreaded death sentence for the second time. But Mr. Fratta’s new trial is yet to come.

In past postings, I have talked about these rights that you and I have and how important they are. I know some of you will start posting your disgust with the criminal justice system immediately upon reading all this. But, remember, the defense lawyer’s objections that were ultimately ruled valid had to do with a police officer not allowing Mr. Guidry to talk to his lawyer and his confession being admitted as evidence in front of all three juries, who then handed down death sentences.

Think about how our system would work if the rules were different. Imagine your son or husband being arrested for suspicion of committing some crime and being placed in similar circumstances.

Does it make a difference in the way the rule works whether the person is guilty or not?

How would anyone know that during that early stage of investigation?

Do you think Fratta should get a new trial because of the behavior of the officer with a co-defendant?

Do you even think Fratta should be sentenced to death when he was not the triggerman?

A lot of questions.

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