I doubt there is an American alive who doesn’t at least think he or she knows what Miranda is and what it means. After all, everyone has seen them given a million times on TV. Everyone knows they have the right to remain silent in the face of questioning from the police, don’t they? There are many, mostly those among us living on the margins, who live in fear– fear of losing their job, fear of being evicted, fear of the police in general. It is those people who have been most impacted by the protections of the Miranda decision and who will suffer most from its erosion.
But what does this have to do with my postconviction world? Well, it turns out that it might have a lot to do with it.
I read an interesting article today (originally excerpted by the American Constitutional Society on Facebook, funny enough– who knew I could do legal research on Facebook?) in which University of Maryland Law professor Sherrilyn Ifill argues that the Court’s decision in Berghuis v. Thompkins is a signal of the “sharp tilt” that our courts are taking in favor of prosecutors.
Berghuis v. Thompkins concludes that simply remaining silent is not enough to ‘invoke’ one’s constitutional right to remain silent. A suspect must now affirmatively state that they do not wish to talk to police to prevent ongoing questioning, even for hours, as was the case in Thompkins. (You can read the opinion yourself at www.supremecourt.gov/opinions/09pdf/08-1470.pdf.)
But Professor Ifill’s gripe is not simply with this opinion, although she has one with it, to be sure. She points out that none of the current justices has any experience as a criminal defense lawyer and sees irony in Justice Sotomayor’s strong dissent, in which she takes up the cause of the defense. Ifill laments that this is a trend that began decades ago and continues.
Now to postconviction. The Court considered another case, Wood v. Allen, recently. Wood was convicted in Alabama state court of capital murder and sentenced to death. His conviction was affirmed by both the Alabama Court of Appeals and the Alabama Supreme Court. He then filed a postconviction motion, alleging ineffective assistance of trial counsel by way of failure to present evidence of his intellectual deficiencies during the penalty phase. (Mr. Wood alleges to be mentally retarded.) He got relief after filing a federal habeas petition but the 11th Circuit reversed. The Supreme Court, with Justice Sotomayor writing for the majority, agreed with the 11th and found that the state court’s conclusion that trial counsel acted strategically in choosing not to pursue or present this potentially mitigating evidence was not unreasonable under the facts of the case. Justice Stevens, who will soon leave the Court, joined by Justice Kennedy, wrote a separate dissent, noting that the majority did not distinguish between a decision not to introduce evidence during the guilt phase and failure to investigate mitigation during the penalty phase of a death case. He used the words “inattention and neglect” to describe what the majority called strategy.
Is this the difference between a former prosecutor, familiar with the nuts and bolts of how to take a case to trial, as well as the motion practice that goes along with it, and a lawyer who has had to structure a defense for (yes, sometimes, often, but not always) a guilty client? If so, I think I might join Professor Ifill in her lament.
