U.S. Supreme Court Case Briefs (Berghuis, Carr): Professor Rory Little’s Perspective

Berghuis v. Thompkins June 2, 2010
United States v. Carr

A Service from the ABA Criminal Justice Section, http://www.abanet.org/crimjust

Introduction by ABA Criminal Justice Section:

This summary has been created by Professor Rory K. Little , U.C. Hastings College of the Law, San Francisco, who has long presented “Annual Review of the Supreme Court’s Term” program at the ABA’s Annual Meetings. It represents his personal, unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content.

The CJS hopes these summaries will be helpful to you, because they are different from the average news or blog account, in at least three ways: first, a detailed account of the rationale of ALL the opinions issued in a case, including nuances found in separate concurring and dissenting opinions; second, an account of the decision that is essentially “neutral” — that is, not really a “perspective” in the sense of the author’s personal opinions, but rather a straightforward account that can be relied upon by lawyers of all stripes; and then third, a bit of “inside baseball” analysis of some of the twists or nuances that are not apparent in the opinion.

Professor Little’s Summaries:

June 2, 2010.

Yesterday the Court issued opinions in two criminal cases, summarized below. Perhaps not coincidentally, both had opinions authored by Justice Sotomayor. In Carr, she wrote the majority, while in Thompkins, she wrote a vigorous dissent. The Justices seem to be “courting” the newest Justice, dropping stray compliments for her opinions (a tactic embedded some 35 years ago by Justice Brennan’s early praise of Justice Blackmun’s opinions, including Brennan’s favorable (and usually unnecessary) citation of Justice Blackmun’s Eighth Circuit decisions). Thus Justice Scalia, while not entirely agreeing with Justice Sotomayor’s majority in Carr, mentions “the Court’s thorough discussion,” and Justice Kennedy remains respectful of her dissent in Thompkins, even as Justice Sotomayor (who clearly is not holding back) describes Justice Kennedy’s majority as “a substantial retreat,” one that “flatly contradict[s] our longstanding views.” Only Justice Alito (himself relatively new to the Court) seems not to be showing the newest Justice any deference, saying that Justice Sotomayor’s conclusion in Carr “makes no sense” (twice), is “thoroughly unsound,” and “flies in the face” of accepted statutory drafting principles.


Berghuis v. Thompkins, No. 08-1470, 130 S.Ct. ___ (June 1, 2010), reversing 547 F.3d 572 (6th Cir. 2008) (on habeas), thereby affirming 683 N.W.2d 676 (Mich 2004, table).

Holding: (1) A person in custody must clearly invoke his right to remain silent after Miranda warnings, or police may continue questioning; and (2) after a suspect has been informed of his Miranda rights and indicates understanding, an uncoerced statement by the suspect “establishes … waiver” (even here, where the suspect refused to answer interrogation questions for almost three hours before saying something incriminating).

Facts: Thompkins was arrested on suspicion of murder, and was interrogated by two officers for about three hours. [Can we deny that the fact that there was a lot of other evidence indicating Thompkins guilt, not mentioned until the last page of the Court’s opinion, that inevitably colors our assessment of this case?] He was fully advised of his Miranda rights, and he declined to sign the rights form. However, he also did not say that he wished to remain silent. Instead, Thompkins simply sat “largely silent” for 2¾ hours, offering non-committal one-word responses (and one remark that “the chair he was sitting in was hard”). Finally, an officer asked Thompkins if he believed in and prayed to God, and when Thompkins said “yes” and started to cry, the officer asked “Do you pray to God to forgive you for shooting that boy down?” Thompkins said yes, looked away, and refused to make any written statement. The officers ended the interrogation and used the final remark against Thomkins at trial, where he was convicted for murder and sentenced to life without parole.

A secondary issue was that a compatriot of Thompkins (Mr. Purifoy) was previously tried as an accomplice to the same murder but acquitted. Purifoy then testified at Thompkins’ trial, and the prosecutors asked the jury “did Purifoy’s jury make the right decision?” The defense did not object or request a limiting instruction, and Thompkins now claimed ineffective assistance.

The Michigan appellate court affirmed, the Michigan Supreme Court denied review, and on federal habeas, the district court denied relief. But the Sixth Circuit reversed, finding no valid waiver of Miranda (thus suppressing the “pray to God” response), and finding ineffective assistance on the jury issue.

Kennedy (for five Justices):

The Sixth Circuit was bound to apply the deferential federal habeas standard (“unreasonable application of clearly established federal law”). But because we find that the Circuit was wrong even under de novo review, we don’t examine the habeas standard further. [Ed Note: The dissent says that this procedural dodge makes the rest of the Court’s opinion “unnecessary to the decision,” that is, dicta. Says Justice Sotomayor, if the Circuit was not properly deferential, and the state court’s application of federal law was not “unreasonable,” then the Court should reverse and not rule finally on the substantive questions presented. It is highly unlikely, however, that anyone will view the next 12 pages of Justice Kennedy’s majority opinion as non-binding “dicta.”]

First, it is settled under Miranda that custodial questioning must cease once the “right to remain silent” is “invoked.” However [and this is a new ruling], silence alone is not “invocation” of the right not to be questioned. A suspect must “unambiguously” invoke his right to remain silent, just as we have held regarding the right to have an attorney present (Davis 1994).

Second, although Thompkins declined to sign a waiver form or make a written statement, his incriminating response to the police after 2¾ hours of questioning demonstrates an “implied waiver.” When proper Miranda warnings have been given and understood, the right to remain silent has not been invoked, and there is no other “coercion,” a response “establishes [a] waiver.” There is no authority for the claim that an interrogation of under three hours, after full Miranda warnings, is “inherently” coercive, and the “police are not required to rewarn suspects from time to time.” We have not previously answered this question, although Miranda itself did say that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or … the fact that a confession was in fact eventually obtained.” The “heavy burden” to show waiver remains on the prosecution. But Butler (1979) established that a “course of conduct” can show waiver; and there is no rule that a waiver must be obtained before questioning can occur (even though a number of police manuals say this). “After giving a Miranda warning, police may interrogate a suspect who has neither invoked nor waived.”

[Editor’s opinionated note: Up to this point, Justice Kennedy’s opinion is straightforward. However, on page 16 he engages in what can only be described as an unrealistic civics lesson (not to mention truly dicta) about police interrogations. “Interrogation provides the suspect with additional information” so that he “has the opportunity to consider the choices he or she faces, and to make a more informed decision.” Given that police are permitted to lie to suspects about the evidence, this is simply silly – “informed” decisions require accurate information, not trickery. It is possible to imagine that Justice Scalia is actually responsible for the ideas in this paragraph, which discusses the perceived benefits of custodial interrogation without telling the suspect any more than the initial Miranda warnings. It sounds like Scalia ideas expressed in Kennedy language.]

On the second question, “it seems doubtful that the failure to request the [limiting] instruction … was deficient representation, but” even if it was, Thompkins cannot show prejudice in the sense of a “reasonable probability that the outcome would have been different.” It would not “have made any difference in light of all the other evidence of guilty,” including a victim ID of Thompkins, a surveillance camera photo, a friend who said Thompkins confessed to him, and other evidence showing consciousness of guilt.

Sotomayor, dissenting (joined by Stevens, Breyer and Ginsburg): The Court’s opinion is a “substantial retreat” from Miranda protections, is “inconsistent with fair-trial principles,” and “bodes poorly for the fundamental principles that Miranda protects.”

First, the Court should not even make the substantive rules it announces today. All it properly should do is reverse because the Circuit was wrong under the deferential principles of AEDPA habeas review. Also, the Sixth Circuit ruled only on the waiver question, and did not answer the invocation question, so we should remand to them rather than rule in the first instance on invocation.

On waiver, there was no express waiver and the police never asked for one. Thompkins “remained almost completely silent and unresponsive” for three hours. This clearly indicated his desire not to talk, and the prosecution did not sustain the “heavy burden” to prove a “voluntary and knowing” waiver. The Court’s ruling contravenes statements in Miranda (such as “a waiver will not be presumed simply from silence”) as well as other such precedents. We said in Miranda that “the fact of lengthy interrogation … is strong evidence that the accused did not validly waive. …[T]he fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of voluntary relinquishment….” For the Michigan courts to conclude otherwise was, in fact, “objectively unreasonable under our clearly established precedents.” And the majority’s contrary rulings (unnecessary to decision as they may be) “flatly contradict” these precedents. The Court “overrules sub silentio” some essential aspects of Miranda.

Regarding invocation, it is true that it might be “difficult to include” that the Michigan court’s decision was “unreasonable,” since we have never answered the question. However, I “cannot agree with the Court’s much broader ruling that a suspect must clearly invoke his right to silence by speaking.” This “invites police to question a suspect at length” without waiver, “in the hopes” of getting something incriminating. Extending Davis, which was about the right to counsel, to this different right under Miranda, is wrong as well as unnecessary. “The Miranda warnings give no hint that a suspect should use … magic words” to invoke. A rule more faithful to Miranda and its fairness rationales would be to require the police to ask for a clear answer to the question whether a suspect wants to talk, and to not allow questioning until a clear response is received.

2. FEDERAL STATUTES (sex offender registration crimes)

Carr v. United States, No. 08-1301, 130 S.Ct. ____ (June 1, 2010), reversing 551 F.3d 578 (7th Cir. 2008).

Holding (6-3), Sotomayor (Scalia not joining the legislative history subsection); Alito dissenting with Thomas and Ginsburg: As a matter of statutory construction, the federal law making it a crime for sex offenders to fail to register after travelling in interstate commerce requires that the interstate travel occur after the date the federal statute was enacted.

Facts: This is purely a case of statutory construction. In 2006, Congress enacted a statute making it a federal crime for person who is (1) required to register as a sex offender and (2) who “travels in interstate or foreign commerce,” to (3) knowingly fail to register in the new State. 18 U.S.C. § 2250(a). These elements undisputedly have to happen in sequence; the only question presented is whether the “travel” has to happen after the date of enactment, or whether a sex offender who moves to another state before the date of enactment, and then fails to register, can also be reached by this federal law. Carr was convicted in 2004 in Alabama and registered there, but then moved to Indiana before 2006 and did not re-register there. The Seventh Circuit created a Circuit split by ruling that the travel did not have to occur before the date of the federal law, so long as the failure to register did (and that this construction also presented no ex post facto problem, a question not reached by the Court today).

Sotomayor (for six Justices, although Scalia does not join the legislative history subsection): The plain language of the statute, using the present tense “travels” as opposed to “has travelled,” settles the issue: the travel must occur after the date of enactment. [Interesting side-note: Justice Sotomayor uses the word “omnitemporality” in footnote 5 to describe the rejected argument that the present tense can also include the past and future tenses.] Statutory context and legislative history confirms this view. The government’s argument that our reading leaves a “gap” unintended by Congress (sex offenders who escape state sex registration requirements by moving out of state before 2006) does not overpower this clear text – moreover, we think it is consistent with Congress’s apparent decision to leave most sex offender registration issues to the States. This is materially different than the federal firearms statute that permits the interstate element of “felon in possession” to occur at any time (Scarborough 1977).

Scalia, concurring in part: I don’t join the subsection that addresses legislative materials, because “the Court’s thorough discussion of text, context, and structure demonstrates that the meaning of [the statute] is plain” and we should examine “only the text Congress voted on.”

Alito, dissenting, joined by Thomas and [surprisingly?] Ginsburg: The Court “misinterprets” the statute and “hobbles” Congress’s clear intention to track down and criminalize sex offenders who move between States to avoid registration requirements. Why would Congress have wanted to criminalize only those offenders who moved after 2006, as opposed to all such persons who knowingly fail to register after that date? The offense that causes the registration requirement can occur before the date of enactment – why not the interstate travel? As for the present tense of the verb “travels,” “modern legislative drafting” manuals recommend drafting this way: the tense refers to the date on which the statute is read (not the date of enactment). [This is not a reach: Justice Alito cites the U.S. Senate Legislative Drafting Manual and two pages of similar authorities that support the proposition.] The Court’s conclusion to limit the reach of the federal statute “makes no sense,” and it is “perverse” to allow offenders like Carr to escape federal prosecution. The legislative history shows that Congress was clearly concerned about all sex offenders who move out of state and then fail to register. “Interstate travel was dangerously undermining the effectiveness of state sex-offender-registration laws.”

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