When is the right to remain silent not a right to remain silent? When you have to speak in order to claim it.
That is the bizarre paradox that the Supreme Court, by a 5-4 vote, enshrined in the Constitution on Monday.
Van Thompkins, a criminal suspect, was not interested in talking to the police, and he never affirmatively waived his right to remain silent. But the court ruled that by not saying clearly that he was exercising his right to remain silent, he in fact forfeited the right and that a one-word answer he gave late in the questioning could be used against him.
The ruling flies in the face of the court's long-standing insistence that a suspect can waive his rights only by affirmatively doing so. The majority said it was standing by Miranda v. Arizona, the landmark 1966 case that revolutionized police interrogations. But in fact, the court created yet another gaping hole in the Miranda doctrine this one backed by what can be described as Alice in Wonderland logic.
Thompkins was arrested in connection with a fatal shooting that occurred outside a mall in Michigan in 2000. The police questioned him for close to three hours, but he remained almost completely silent, offering just a few one-word answers. Toward the end, an officer asked Thompkins if he had prayed to God to forgive him for the shooting, and he said "yes."
Prosecutors used the answer to convict Thompkins of murder, although his lawyers insisted that it violated his right against self-incrimination. Under Miranda, a suspect's statements to the police could be used only if the suspect knowingly and intelligently waived his right to remain silent. Thompkins never did that. A federal appeals court agreed with his lawyers and threw out the conviction.
The Supreme Court reinstated Thompkins' conviction. If he wanted to invoke his right to remain silent, Justice Anthony Kennedy indicated for the majority, he should have spoken up about it. That conclusion "turns Miranda upside down," Justice Sonia Sotomayor wrote for the four dissenters.
Before Miranda, police had enormous freedom to coerce confessions out of suspects whether they had committed the crimes they were being questioned about or not. Could police interrogate someone for 40 hours over several days to wring out a confession? Yes, the court ruled in 1941, they could.
Miranda rewrote the rulebook. Criminal suspects have to be informed of their right to remain silent and of the fact that as the now famous Miranda warning put it anything they say can and will be used against them in a court of law.
Police and prosecutors reacted with outrage, warning that Miranda would prevent them from solving crimes and putting away criminals. Politicians attacked the court for siding with criminals over the forces of law and order.