The barriers, hurdles, hoops and mazes erected by the Constitution of the United States, and by most of the relevant court rulings of the past 50 years, are clearly there to impede the government, not the individual.
So when a bare majority of the U.S. Supreme Court makes it harder for suspects to maintain their Fifth Amendment rights, it is hard to grasp why the court's majority is still described as either conservative or restrained.
The 5-4 ruling written -- as most 5-4 rulings are these days -- by swing Justice Anthony Kennedy, engages in a troubling leap to conclude that a suspect who has said nothing for nearly three hours, in the face of constant police questioning, should not be judged by law and by common sense to have made it quite clear that he ain't talking, see.
The case involved one Van Chester Thompkins, convicted in Michigan of first degree murder and sentenced to life without parole. The conviction was based, in large part, on police testimony that after more than two and a half hours of virtual silence -- saying only that his chair was hard and that he did not want a piece of candy -- Thompkins answered a snuffled "Yes," to the question, "Do you pray to God to forgive you for shooting down that boy?"
Thompkins still refused to sign a waiver of his Miranda rights or a written confession. His lawyer tried to get the incriminating answer excluded from the trial, but the judge allowed it to be introduced as evidence.
The Constitution explicitly bars the government from compelling any person from being "a witness against himself." The famous 1966 Miranda v. Arizona ruling of the Supreme Court correctly held that this protection has no meaning if suspects don't know about that right, or if police have any incentive to beat, threaten, bribe or just outlast a suspect into saying something self-incriminating.
Whenever a criminal defendant is freed, or even has evidence excluded, under Miranda, the oft-heard complaint is that a criminal got off "on a technicality." This new ruling now makes it possible for suspects to be convicted on an overly technical reading of the law.
Because Thompkins never said that he was refusing to speak to police, Kennedy concluded, he could not later claim his constitutional right to remain silent. Instead of the burden being on the government to prove that it had acted properly, the standard in any government of laws, it now falls to the unschooled and unlawyered individual to figure that out on his own.
The court's dissenters -- led, for the first time, by Justice Sonia Sotomayor -- were much closer to the mark.
"Today's decision turns Miranda upside down," the newest justice said. "Criminal suspects must now unambiguously invoke their right to remain silent -- which, counter-intuitively, requires them to speak."
Counter-intuitive, indeed. Counter to the idea that the Constitution exists to restrain the government, not entrap the individual, for sure.