Dahlia Lithwick’s recent piece on Connick v. Thompson is one of the most troubling things I’ve read in a long time. In Connick v. Thompson, a man who’d been on death row and was later found to have been the victim of evidence having been withheld by the prosecution, was denied compensation awarded him by a jury and upheld by every court on the way to the Supreme Court. Once there, not only did the Supreme Court deny him the jury award, but Clarence Thomas and Antonin Scalia found that the District Attorney in New Orleans couldn’t be held liable for the misdeeds of prosecutors and specialists. Here’s why I found the article troubling.
Last year a trio of court rulings began peeling back Miranda rights. Thanks to Maryland v Shatzer, a request to not answer questions without a lawyer present is now moot. Thanks to that ruling, all that is required is a break in custody before cops can begin questioning you again. It is now possible that police can release a suspect who has refused to talk without a lawyer, pick him up again and resume questioning him. Berghius v. Thompson found that you must explicitly invoke your right to remain silent in order to be recognized. Yes, that “right” is now opt-in instead of opt-out. Finally, in Florida v Powell, the court found that suspects needn’t be given the Miranda warning that we are all familiar with as long as they are informed of their rights, creating a scenario where cops no longer have a concrete definition of the warnings they need to give suspects.
We now live in a world where cops need only imply our rights to us when we are taken into custody. Then those rights that are implied must be specifically invoked in order to be considered binding. That protection you get from invoking your rights, however, is temporary and disappears after a brief period of time. That undermines your right to avoid self-incrimination, and the problem is compounded by Connick v Thompson, because it creates a world where your newly-undermined rights might land you in jail, whether you are guilty or not, and once you’re there, the prosecution may engage in wrongdoing, withholding evidence that would prove your innocence, without fear of reprisal. I’m not a person who leaps to alarm, quickly, but with more and more people on death row being proven innocent, each year, it occurs to me that we should be reinforcing our legal system against the cracks and flaws that have allowed so many innocent people to be arrested, convicted, and in some cases executed. Instead, we’re increasing the structural damages that have created those flaws. Well, we aren’t. The Supreme Court is.