On Monday, the Supreme Court will hear argument in the habeas case of Berghuis v. Thompkins. SCOTUSblog has its preview here.
These are the two issues in the case:
(1) whether a defendant waives his right to remain silent when he is given a Miranda warning and orally acknowledges that he understands his rights, but he neither invokes nor waives them explicitly.
(2) whether the Sixth Circuit accorded sufficient deference to the state court when it held that Thompkins’s lawyer was ineffective for failing to seek a limiting instruction specifying that a testifying witness’s acquittal in a separate trial based on the same crimes could only be used to make credibility determinations
My initial sense here is that this case represents another situation in which the Supreme Court granted cert. in order to slap around the Sixth Circuit a little.
If I were to take on the substance, I fear that question (1) is going to drift into Musladin territory.* There's a good chance that the debate here will be over whether the Sixth Circuit's conclusion sits upon "clearly established law" from the Supreme Court. In other words, is the law clearly established that the defendant's actions here did not constitute a waiver of his right to remain silent?
*Musladin = ever-shrinking definition of what constitutes clearly established law.
The facts were that the defendant never explicitly waived his rights and then during the subsequent interrogation was not particularly cooperative with the officers or responsive to questioning.
The Sixth Circuit relied upon the following two statements from the Supreme Court: “[t]he courts must presume that a defendant did not waive his rights; the prosecution’s burden is great"; and “[A] valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” The Sixth Circuit acknowledged that a waiver can be implied under Supreme Court precedent, "but a suspect’s uncooperativeness or refusal to sign even an advice of rights form certainly has relevance to determining whether Thompkins waived his rights."
I know I am not giving it a full treatment here, but the Sixth Circuit's reasoning doesn't seem particularly assailable, at least in so far as they relied upon law that was clearly established. While the Supreme Court may end up disagreeing with the Sixth Circuit on whether the state courts unreasonably applied the law to the facts, I am hoping that the Sixth Circuit did enough to insulate the analysis here from Musladin.*
*Why is this important? As I have said around here before, Musladin is dangerous. The expansion of Musladin can potentially swallow up the "unreasonable application" part of the standard of review in a good deal of cases.
As for the ineffectiveness claim, it sounds like the typical Respondent whine (with associated feet stomping), "The federal courts didn't give the state court's enough deference!"
I have read the decision and the Sixth Circuit seemed to be "doubly deferential" on the ineffectiveness claim. At least, it used all of the proper deferential language. I am guessing that that probably won't be good enough for the Supreme Court. The Court will probably reverse the lower court on this point because, despite the language, the Circuit wasn't really being deferential.
Based on the way that the Court has had it in for the Sixth Circuit lately in habeas cases, it's not hard to predict how this one's going to come out. Let's just hope that it's not a horrendously bad decision for habeas petitioners.