In a 5-4 decision in the Michigan murder case Berghuis v. Thompkins, the Supreme Court's conservative majority further eroded Miranda rights for criminal suspects June 1. Justice Anthony Kennedy in the majority opinion said that when Miranda warnings are properly given, a person wishing to invoke the right to remain silent must do so explicitly. The court overturned a ruling by the Sixth Circuit appeals court, which held that the defendant's nearly three-hour silence in response to questioning constituted a desire not to waive his rights. Justice Sonia Sotomayor, in a dissent, said the decision "turns Miranda upside down."

In 1966, the court held in Miranda v. Arizona that "[i]f the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." The present case arose after Van Chester Thompkins was arrested and questioned for nearly three hours, but remained substantively silent throughout—only answering "yes" when officers asked if he had prayed for God's forgiveness. He was convicted in a jury trial, but the Sixth Circuit overturned the conviction when he appealed on the basis that his Fifth Amendment rights had been violated.

Elena Kagan, nominated by President Barack Obama to join the court, sided with police as US solicitor general when the case came before the court. She would replace Justice John Paul Stevens, a dissenter. (AP, Detroit Free Press, June 2; Jurist, June 1)

The high court decision comes amid a growing attack on the honoring of Miranda rights in terrorism cases.

See our last post on the consolidating domestic police state.

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