Speak now or forever ...

By Jermaine A. Wyrick

At a wedding, the official says – “Speak now or forever hold your peace!” A recent court decision has the same ramifications. In the Berghuis, Warden v. Thompkins 560 U.S. _____ (2010) case, the United States Supreme Court held an individual forfeited his 5th Amendment right against self-incrimination because he did not expressly tell law enforcement that he wanted to remain silent after arrest. This watershed decision diminishes and dilutes the rights enumerated in the groundbreaking case of Miranda v. Arizona, 384 U.S. 436 (1966), where the court held police must inform individuals who are in custody of their right to remain silent and the right to an attorney.   
Factually, Thompkins involves an individual named Van Chester Thompkins, age 33. On January 10, 2000, a fatal shooting occurred outside a mall in Southfield, Michigan. Thompkins was convicted of first-degree murder and sentenced to life in prison without parole. When police initially questioned Thompkins, he remained silent for 2 hours and 45 minutes into the interrogation. However, he answered “yes,” when Detective Helgert asked him, “Do you pray to God to forgive you for shooting that boy down?” Thompkins moved to suppress his statements, argued he invoked his Fifth Amendment right to remain silent, requiring police to end the interrogation at once. Michigan v. Mosley, 423 U.S. 96, 103 (1975). He also argued his inculpatory statements were involuntary. Thompkins argued he “invoked his privilege” to remain silent by not saying anything for a sufficient period of time, so the interrogation should have “ceased” before he made his inculpatory statements. Id at 474; see Mosley.
Justice Anthony Kennedy, in the majority opinion for the court, stated Thompkins could have ended the questioning by telling the police he wanted to invoke his right to remain silent. In Davis v. United States, 512 U.S. 452, 459, (1994) the court stated, “A suspect’s Miranda right to counsel must be invoked ‘unambiguously.’ Furthermore, in the Berghuis v. Thompkins case, the court reasoned, “If Thompkins wanted to remain silent, he could have said nothing in response to Helgert’s questions, or he could have unambiguously invoked his Miranda rights and ended the interrogation. He did neither.” Moreover, “Thompkins waived his right to remain silent when he knowingly and voluntarily made a statement to police.” In Moran v. Burbine, 475 U.S. 412, 421 (1986), the court held a waiver of the right to remain silent must be knowingly and voluntarily made to police. “A waiver must be the product of a free and deliberate choice rather than intimidation, coercion, or deception” and made with full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” In North Carolina v. Butler, 441 U.S. 369, 373, (1986) the court held courts can infer a waiver of Miranda rights “from the actions and words of the person interrogated.”
In the Berghuis v. Thompkins case, the court reasoned Thompkins’, “answer to the question about God is a ‘course of conduct indicating waiver’ of that right.” Butler, supra at 373. Further, “courts can infer a waiver ‘from the actions and words of the person interrogated.’” 441 U.S., at 373.
In a vehement dissent, Justice Sonia Sotomayor stated the decision “turns Miranda upside down. It’s counterintuitive, to require a suspect to speak in order to exercise the right to remain silent.” Conversely, Michigan Attorney General Mike Cox stated, “The victim’s family will receive justice.”
Based upon the aforementioned case, from a practical and logical standpoint, it is advantageous for an individual to affirmatively invoke the right to remain silent because otherwise as the adage goes – “loose lips, sink ships.” In this instance, a person may spend the rest of his life in prison based upon an incriminating statement.
Jermaine A. Wyrick of the Law Offices of Jermaine Wyrick PLLC can be reached at (313) 964-8950 or by e-mail at Attyjaw1@Ameritech.net.