Elena Kagan and the Death of Miranda

[usregimechange]

On June 1, the U.S. Supreme Court finally dealt Miranda a death blow. Elena Kagan, Obama's nominee for the Supreme Court, was complicit in Miranda's demise. Her participation may give some insight into her views on the rights of criminal defendants, and her understanding of how the law affects ordinary people.

In Berghuis v. Thompkins, the decision announced today, the Court ruled 5-4 that a suspect has to speak in order to assert the right to remain silent. Van Chester Thompkins was given his Miranda warnings and remained quiet for almost 3 hours. During that time, officers continued the interrogation and Thompkins eventually made an admission. A federal court found that he had asserted his right to remain silent by actually remaining silent, and that officers should have ended the questioning. The Supreme Court reversed...

So what was Kagan's role? As Solicitor General, she filed a brief in Berghuis v. Thompkins for the United States as amicus curiae (friend of the Court). The U.S. was not a party in the case since Thompkins had been convicted in state court and it was the State of Michigan that challenged the lower court's ruling. Kagan did not have to enter the fray and take a position, but she decided to do so.

Kagan's brief was even more aggressive than Michigan's. In a 1994 case, Davis v. United States, the justices ruled that if a suspect first waives his rights and then later wants a lawyer, the person has to invoke that right clearly in order to require officers to stop questioning. Kagan's position -- accepted by the majority in Thompkins -- was that Davis should be extended to the right to remain silent and to cases where a person has not already waived his or her rights. By contrast, the State of Michigan sought to win on a narrower ground. We cannot know whether Kagan's arguments convinced the majority to issue such a broad decision. But the Solicitor General, often called the "Tenth Justice," is a very influential player...

In nominating Elena Kagan to the Supreme Court, President Obama said that Kagan has an "understanding of law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people..." Perhaps so. But that understanding was not evident in Kagan's work in Thompkins.

http://www.huffingtonpost.com/charles-weisselberg/elena-kagan-and-the-death_b_596447.html



Berghuis v. Thompkins, No. 08-1470
The questions presented in this case are (1) whether the Miranda rule prohibits an officer from attempting to noncoercively persuade a suspect to cooperate when the officer informs the suspect of his rights, the suspect acknowledges that he understands them, and the suspect does not invoke them but does not waive them; and (2) whether the Sixth Circuit erred in granting habeas relief with respect to an ineffective assistance of counsel claim when substantial evidence of petitioner’s guilt allowed a state court to reasonably reject the claim. The Office of the Solicitor General filed a brief as amicus curiae in support of petitioner and with respect to the first question, the Office took the position that the Miranda rule does not prohibit such conduct. The Office took no position on the second question.

http://judiciary.senate.gov/nominations/SupremeCourt/upload/ElenaKagan-PublicQuestionnaire.pdf


More on the ruling here:
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=8462349&mesg_id=8462349

:argh: