Blog Archive

Ever since the monumental decision Miranda v. Arizona, the phrase “you have the right to remain silent” has been given epic importance, from judicial decisions to pop culture to the street level interactions between police and criminals.  And up until Berghuis v. Thompkins, that right was fairly accessible, though ephemeral, protection.  Unlike the other protected right under Miranda warnings, the right to have an attorney present during questioning, the right to remain silent did not need to be explicitly raised in order to be invoked.  However, in Berghuis v. Thompkins, the Supreme Court held that the right to remain silent is not invoked until the defendant explicitly says that he wants to remain silent.  And, thus, until those words are uttered, the police are allowed to continue questioning.  The defendant in the Berghuis had been subjected to three hours of interrogation about a murder, but he barely spoke a word.  Besides a few head nods, and answering such questions as “would you like a mint”, he was steadfast in exercising his ability to remain silent.  However, he ultimately had a moment of weakness; after three hours, he answered only one substantive question, and that answer was used against him at trial, where he was found guilty.  The Court held that the right to remain silent was not implicitly raised simply by seemingly exercising it, i.e.  his continuing refusal to answer the many questions asked to him.  They further held that by answering that one substantive question, he adequately waived his right to remain silent, and gave up his protection.

Thus, the holding seems to be that the right to remain silent must be explicitly raised, but the waiver does not.  So, the rule to take from this case is: speak to remain silent, but say one word, any word, and it will be considered a waiver.

Berghuis v. Thompkins, — S.Ct. —-, 2010 WL 2160784 (2010).

In U.S. v. Comstock, the Supreme Court held that federal officials can indefinitely hold inmates that are considered “sexually dangerous”, even after their prison terms are complete.  In overruling the lower courts decision, the court determined that the statute is a “necessary and proper” exercise of federal authority when Congress enacted the Adam Walsh Child Protection and Safety Act, authorizing civil commitment of sexually dangerous federal inmates.

In order to meet the definition of “sexually dangerous”, there must be clear and convincing evidence that, because of a mental disease or defect, the prisoner, if released, would have serious difficulty refraining from sexually violate conduct or child molestation, and there must be a showing that neither the state in which he was confined, nor the state in which he was tried is willing to accept custody over him.

The main issue in the case what whether the Constitution grants Congress the power to issue civil commitments.  Under the 10th Amendment, the states are reserved any power that have not been granted to the federal government, either specifically or impliedly.  Implied powers arise when the federal government must take certain actions that are “necessary and proper” to effectuate one of the express powers given.

One of the express powers given to Congress is the power to imprison those convicted of federal crimes, and to establish a system of criminal justice to punish offenders.  The petitioners in Comstock argued, however, that the relevant Act is only applicable after completion of their applicable sentence, and in some cases a finding of sexual violence warranting increased confinement may arise out after a conviction for a crime that was not sexual in nature.  However, the Court determined that the power to confine prisoners in the first place also carried the implied power to take account of other safety issues regarding their release back into society.  It cited, for example, the power of the federal government to maintain custody over a prisoner who has communicated a disease that threatens others.

U.S. v. Comstock, 2010 WL 1946729.

Legal Issue: How does the Sixth Amendment’s guarantee for effective assistance of counsel affect a non-citizen where on advice of his criminal defense attorney he pleads guilty to a charge that will cause mandatory deportation in-spite of the attorney’s assurance that deportation was not a consequence.  Does this advice amount to ineffective assistance of counsel and allow the setting aside of the guilty plea?

(This case was heard by the Supreme Court in October of 2009 and should be decided in 2010).

Pertinent Law:

6th Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Legal Issue: What is the scope of jurisdictional stripping provision of 8 U.S.C. Section 1252(a)(2)(B)(ii) and does this statute remove jurisdiction from federal courts to review rulings on motions to reopen by the Board of Immigration Appeals?

Pertinent Law:

8 U.S.C.S. § 1252(a)(2)(B) states that no court shall have jurisdiction to review any action of the U.S. Attorney General the authority for which is specified under the subchapter of the statute to be in the discretion of the Attorney General.

A motion to reopen removal proceedings must state the new facts that will be proven at a hearing to be held if the motion is granted, and must be supported by affidavits or other evidentiary material. 8 U.S.C.S. § 1229a(c)(7)(B). The motion to reopen must be filed within 90 days of the date of entry of a final administrative order of removal. § 1229a(c)(7)(C)(i). Among matters excepted from the 90-day limitation are motions to reopen asylum applications because of changed conditions in the country of nationality or removal.

When a statute is reasonably susceptible to divergent interpretation, a court adopts the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review. The court applies that interpretive guide to legislation regarding immigration, and particularly to questions concerning the preservation of federal-court jurisdiction. Because the presumption favoring interpretations of statutes to allow judicial review of administrative action is well-settled, the court assumes that Congress legislates with knowledge of the presumption. It therefore takes clear and convincing evidence to dislodge the presumption.