With today’s decision in Berghuis v. Thompkins the Supreme Court has once again reversed the U.S. Court of Appeals for the Sixth Circuit in a habeas case. Indeed, this is the fifthsuch reversal this year. In each case, a panel of the Sixth Circuit granted a prisoner’s habeas corpus petition. In each case, the Supreme Court reversed. Three of these decisions were unanimous (Berghuis v. Smith, Smith v. Spisak and Bobby v. Van Hook), one was 6-3 (Renico v. Lett). Today’s decision was 5-4. Overall, this means the Circuit could only muster 7 of 45 available votes in support of its decisions.
It’s hardly unheard of for a single circuit to be reversed five or more times in a single term. The number of cases up for review in any given year is a sufficiently small and unrepresentative sample to preclude drawing any sweeping conclusions. Still, it is unusual to see a circuit fare so poorly in a single area of the law in a single term, and in such a uniform direction.
The spate of reversals is also notable because the Sixth Circuit has been so divided in habeas cases of late. As I’ve chronicled over the past several years (see, e.g., here, here and here), the judges on the Sixth Circuit are deeply split over the proper standard of review in habeas cases, particularly when the death penalty is involved. Indeed, the Circuit released yet another divided panel decisionin a habeas case this morning. The uniformity of the reversals suggest that one side in the Sixth Circuit’s habeas disputes has the better of the argument, at least under existing law. If current law is too restrictive on this score — and it may well be — then it is up to the Court or Congress to make things right, not a handful of judges on a single Circuit. With these five decisions, the Supreme Court seems to be sending a message. Time will tell whether the judges on the Sixth Circuit heed it.
UPDATE: It’s been suggested to me that it’s unfair to blame the Sixth Circuit for today’s reversal. In Berghuis v. Thompkins the Sixth Circuit was not only reversed for failing to apply the proper standard to review of a habeas petition denial. On the petitioner’s Miranda claim, the five-justice majority revised the standard for what constitutes a waiver of one’s Miranda rights. Thus, the Court did not hold that the Sixth Circuit failed to apply pre-existing precedent, and there is a reasonable argument that the Sixth Circuit’s decision on this question was on solid ground at the time of the decision. This was not the only basis upon which the Sixth Circuit afforded Thompkins with habeas relief, however. The panel below also found that Thompkins had received inadequate assistance of counsel, and here the Court majority found the Sixth Circuit had not applied the proper standard under AEDPA. (The dissent did not address this issue, as the dissenting justices would have granted relief on the Miranda claim.) Interestingly enough, because today’s decision was 5-4, if one ignores Berghuis v. Thompkins, the Sixth Circuit appears to be more of an outlier, as the combined vote to overturn is habeas decisions would be 33-3.
Frank says:
It comes as no surprise that Judge Eric Clay was in the majority for all but one of those Sixth Circuit decisions. I would expect that he must be among the judges most frequently overturned by the Supreme Court.
June 1, 2010, 11:11 amSuperSkeptic says:
Could it be something so simple (and cynical) as a couple of judges do not like the death penalty?
June 1, 2010, 11:23 amSoronel Haetir says:
What possible reason do the losing 6th circuit judges have to mend their ways? It’s not like anyone is going to punish them for being wrong, even flagrantly and repeatedly wrong. This sort of thing, IMO, points out one of the major weaknesses of our government’s structure. Judges are /too/ independent and the threat of impeachment all but illusory. “Good behavior” should be a higher standard than “not criminal” which is what it currently takes for impeachment to even be considered.
June 1, 2010, 11:23 amGreg Dodge says:
I tend to agree that the Supreme Court is sending a message that habeas deference really means deference, and that finding violations on habeas should be rare. That said, I think the judges on the Sixth aren’t flat making things up — indeed, the Court has sent mixed signals with cases like Wiggins and Rompilla where the deference calculus swings a bit, and whenever Kennedy swings to the liberal side you tend to see almost no deference given to, well, deference in his opinions. So the judges on the Sixth who keep losing have opinions and language to cite.
But in the end it is time to curtail some of those opinions. I think it’s also had the unintended effect of making some of the more unreasonable decisions from the other side of the Sixth fly by unnoticed, because the Court is so busy sending this message.
June 1, 2010, 11:30 amspo says:
This was a close case in terms of SCOTUS votes, so I am not sure that it’s fair to hold this against the Sixth Circuit. Personally, I think Sotomayor’s opinion is a bit daft. Although she makes a good point at the end, i.e., that, as a practical matter, defendants are going to have to expressly say something to ensure that a court won’t find an implied waiver, and that’s a bit odd given that it’s a right to remain silent, the bottom line is that she’s arguing for some awfully fine distinctions to be made. The issue is voluntariness, and there’s certainly nothing here to suggest a lack of it.
June 1, 2010, 11:35 amPhatty says:
If a defendant wants to ensure that a court won’t find an implied waiver, he should just keep his mouth shut and not answer any questions. The real question in this case is how long can the police continue to interrogate a witness that is keeping quiet.
June 1, 2010, 11:56 amKent Scheidegger says:
We at CJLF have long referred to the 6th at the 9th upside down. Today’s decision is different from the others, though. The Supremes did not spank the 6th for misapplying AEDPA, although they could have. The Court addressed the issues de novo and moved the goalposts somewhat on the Miranda question.
I wouldn’t count this case as a rebuke, but the others are, and the others are plenty to make this term a dismal one for the 6th.
June 1, 2010, 11:56 amspo says:
Judge Clay ate a pretty embarrassing reversal in Bobby v. Bies.
June 1, 2010, 12:06 pmGuy says:
Habeas cases would be simpler if judges didn’t have to look to case law interpreting laws setting rules for how to interpret case law interpreting other laws. But that’s only the most annoying problem with AEDPA.
June 1, 2010, 12:15 pmruuffles says:
Why doesn’t the 6th circuit make an effort to take these en banc, as the 9th does?
June 1, 2010, 12:32 pmc.s.b. says:
Just because a court of appeals is overturned doesn’t mean that it misconstrued “existing law.” Particularly when all four dissenting SCOTUS justices accuses the majority of misconstruing its precedent.
I think it’s uncontroversial to say that the Supreme Court’s jurisprudence on Miranda rights has ebbed and flowed significantly. Thompkins reflects these changes at least as much as it reflects any views of the Sixth Circuit.
Also: spell-check much?
June 1, 2010, 12:40 pmGreg Dodge says:
ruuffles says:
Two things. One, the Sixth does have plenty of en banc cases, so it’s not like that never happens. Second, habeas cases exist in kind of an odd realm for revisiting the issues: habeas cases turn on the “reasonableness” of what the lower court did, and in the context of ineffective assistance of counsel you tend to get “double reasonableness” review. As a result almost all decisions are distinguishable in one way or another, and there are so many most cases have little precedential value (they may get cited, but the judges tend to take a “I know it when I see it” approach and quote language from the two or three Supreme Court cases on point). As a result taking cases like these en banc ends up being little more than error correction, especially since neither side of the Sixth Circuit debate feels compelled to abide by the others’ rulings, to say nothing of who has the better argument.
Of course, all the above makes the Supreme Court’s decision to review and reverse so many Sixth Circuit habeas cases this term striking, though as spo points out this one is a bit different (especially since the Miranda issue was reviewed essentially de novo).
June 1, 2010, 12:42 pmNunzio says:
The evidence against the defendant was strong, even putting aside the “confession.”
June 1, 2010, 1:25 pmKent Scheidegger says:
There is a much simpler alternative rule for federal habeas for state prisoners. It is the rule Congress enacted for D.C. when it set up a state-like court system for local cases there. See Swain v. Pressley, 430 U.S. 372 (1977).
This alternative was proposed as AEDPA was moving through the Senate, but it was not adopted. Congress might want to consider it again if and when persons of sense are ever back in control.
June 1, 2010, 1:26 pmDave N. says:
I was going to make the same comment, but Kent beat me to it.
While dressed in habeas garb, this case is really a conservative-liberal dispute over how to apply Miranda. The rule now appears to be that a suspect must affirmatively say, “I don’t want to talk” rather than simply remaining mostly silent.
Interestingly (at least to habeas nerds), the Court also addressed the IAC claim under a de novo analysis, even though the dissent didn’t address the issue. I am puzzled as to why the Court did so for that issue (other than to remain logically consistent) since the case did nothing to change the IAC playing field.
June 1, 2010, 2:24 pmKenvee says:
Nowhere in the Constitution does it mention the “right to remain silent.” It’s the right not to be “compelled in any criminal case to be a witness against himself.” The statement “I do not wish to answer questions” — or “I’m not talking to you,” “I take the Fifth,” or any other colloquialism — is not compelling you to be a witness against yourself and hence does not violate the Fifth Amendment in any way.
If tell someone they have the right not to talk to you, they understand that they have the right not to talk to you, and then they talk to you, there’s no reason why that shouldn’t be good enough. And if you want to look at it another way, if the suspect is read his rights (including “you have the right to terminate this interview at any time”) and then asked if he waives those rights, couldn’t he think that he’s waived his right to terminate the interview and think he has to keep talking? That makes more sense than half the Miranda arguments out there.
June 1, 2010, 2:38 pmspo says:
kenvee, I disagree with Sotomayor’s conclusion, but at the end of the opinion, she does have a point.
June 1, 2010, 4:19 pmKenvee says:
spo, I still don’t think she does. Leaving aside that the “right to remain silent” is nowhere in the Constitution, the courts have recognized for a long time that the right only covers such speech as could be considered bearing witness against yourself, or testimonial speech. You can still be compelled to, for example, provide a voice exemplar or give book-in information. How is a statement that you don’t wish to answer any questions the slightest bit different from that? It only sounds contradictory because of the court’s own poor phrasing of the actual rule, not because of the rule itself.
June 1, 2010, 5:24 pmSub Specie AEternitatis says:
Unfortunately none at all. Even in the far-long-ago when this writer clerked for another judge on that circuit, the Hon. Clay–while perfectly competent in cases not triggering his ideological patellar reflex–was almost as well-known for lawless judging in death penalty cases as for the misery his law clerks appeared to suffer with great regularity.
June 1, 2010, 5:25 pmRodger Lodger says:
For over 30 years I’ve taught that, as Miranda itself says, just answering questions after being read one’s rights will not demonstrate waiver. Something about a willingness to talk must be uttered. Do I now have to contact thousands of former students with a correction?
June 1, 2010, 6:20 pmDave N. says:
Since Michigan doesn’t have a death penalty, in this case the answer is clearly “No.”
June 1, 2010, 7:00 pmspo says:
Kenvee, that ship has sailed. I am all for getting back to the text, but the bottom line is that the answer to the question: “When the cops question you while you are in custody, do you have the right to remain silent?” is yes.
June 1, 2010, 7:10 pmspo says:
Sub Specie, Judge Clay is an evil man. The bottom line is that in death cases there is a victim’s family that is entitled to have judges apply the law in a neutral manner, not tip the scales because they don’t like the death penalty. When they tip the scales, they wreak unconscionable pain on people who did not ask to be in the situation that they are in.
As for his “competence”, read his concurrence in the en banc denial of rehearing in Bies v. Bobby. He’s an embarrassment to the federal bench.
At least Reinhardt is smart.
June 1, 2010, 7:20 pmSuperSkeptic says:
Thanks Dave N., I was not aware of that. I’m actually kind of glad that my cynical response turned out false – at least in this case. However, Kentucky, Ohio, and Tennessee apparently still do have the death penalty. And Van Hook and Spisak were Ohio cases, so perhaps there is still some room for cynicism on the whole…
June 1, 2010, 8:24 pmAnonymous comment says:
Is it just me, or does it not read like a typical Kennedy opinion? It almost sounds like an unpolished bench memo in places: “The warden of a Michigan correctional facility is the petitioner here, and Van Chester Thompkins, who was convicted, is the respondent.” “The relevant state-court decision here is the Michigan Court of Appeals’ decision affirming Thompkins’s conviction and rejecting his Miranda and ineffective-assistance-of-counsel claims on the merits.” “There is no basis in this case to conclude that he did not understand his rights; and on these facts it follows that he chose not to invoke or rely on those rights when he did speak. First, there is no contention that Thompkins did not understand his rights; and from this it follows that he knew what he gave up when he spoke.”
June 1, 2010, 9:16 pmrjs says:
It would be better for the suspect to state “I want to remain silent” or “I don’t want to talk to the police.” According to Thompkins, if he had said either of those two things, “he would have invoked his right to cut off questioning.” Slip Opinion at 10 (quotation marks omitted). Waiver then never becomes an issue and the suspect doesn’t have to listen to any more questions.
June 1, 2010, 9:20 pmMnZ says:
IANAL, but I wonder if some suspects might misunderstand their rights after hearing the prescribed Miranda warning. In other words, they might think their choices are: (i) complete silence or (ii) they have answer every question thrown at them. One could imagine situations in which a suspect might want to tell the police some information but not self-incriminatory information.
June 2, 2010, 12:07 amMichael says:
Well put. Now if only I can get some of my non-lawyer friends to grasp that, maybe they’ll stop their Chicken Little routine. They literally believe they no longer have the “right to remain silent.” Reason just doesn’t reach some people.
June 2, 2010, 1:35 amwhit says:
they would have to be the stupidest and most isolated suspects in the USA.
they watch, for instance, tv and have seen literally scores of examples of people talking and answering some questions and then asking for a lawyer, or saying i’m not going to say anything more and doing so.
heck, i’ve had that personally happen DOZENS of times.
in reality, reading somebody miranda is merely ritual. if there is any sentient being over the age of 12 who doesn’t know miranda, he’s hiding somewhere.
i’ve had 8 yr old kids recite miranda to me PERFECTLY word for word.
iow, even w/o the reading of the rights, you’d be hard pressed to find anybody who didn’t know that they have the right to remain silent, bla bla bla
June 2, 2010, 5:32 amSub Specie AEternitatis says:
No doubt–whenever there is a conflict between what Judge Clay wants to be the outcome and the law, the law does not stand a chance. When I said that he was otherwise competent, I merely meant that in cases where he does not care about the outcome–a dispute about contract interpretation between two major corporations, let’s say–he (or perhaps his law clerk) is capable of writing a perfectly fine opinion. It is too bad he does not use that capability when it matters.
As for Clay being evil, I cannot claim to have looked into his heart and judged that. But if I had to pick one federal judge for that epithet then, based on some professional and personal experience, I’d pick him.
June 2, 2010, 6:15 amMnZ says:
That may be, but you can still have evidence excluded if a suspect is not read his rights. So, why couldn’t a suspect have evidence excluded because the prescribed Miranda Rights are a bit confusing? If I were ambitious criminal defense attorney, I would look for a situation where you could test this.
Perhaps one could find a gang member who both incriminated himself and flipped on his fellow gang members. One could argue that he only sought to protect his family from reprisal when he cooperated with the police. He didn’t understand that he could have just flipped on the gang members and left his participation in criminal activities out.
June 2, 2010, 7:06 amKenvee says:
Really, this opinion doesn’t even affect the right to remain silent. If Thompkins had actually remained silent, then there wouldn’t be an issue. You can sit there silently all day long and no one can make you do otherwise. What it affects is the right to stop the questioning. Until you say “I don’t want to talk to you,” then the police can keep asking you questions. Period. It doesn’t mean you have to answer.
June 2, 2010, 9:44 amSCOTUSblog » Wednesday round-up says:
[...] the Volokh Conspiracy, Jonathan Adler observes that Thompkins is the fifth Sixth Circuit habeas case that the Supreme [...]
June 2, 2010, 9:55 amspo says:
Kenvee, Sotomayor’s point is that in order to avoid the implied waiver, the guy would have to speak up, and that’s odd in the context of a right to remain silent. Look, I don’t think her opinion is all that hot, but she makes an effective point there.
“As for Clay being evil, I cannot claim to have looked into his heart and judged that. But if I had to pick one federal judge for that epithet then, based on some professional and personal experience, I’d pick him.”
People that use their authority to dump on murder victims’ families, particularly where they have a sworn duty to be fair, are evil. And given Clay’s performance in Bobby v. Bies (Bies v. Bobby at 6th Circuit) any claim to competence needs to be met with laughter. The guy’s a joke.
June 2, 2010, 10:57 amKenvee says:
spo, you keep saying that, but you don’t say why it’s an effective point. I’ve said several times why I don’t think it’s effective at all, so I need a little more than just “but it is”. My points, repeated:
(1) There is no “right to remain silent”. There is a right not to be forced to incriminate yourself. Saying “I don’t want to answer questions” is in the same category of non-testimonial statements that have been repeatedly approved by SCOTUS and numerous lower courts.
(2) The illogic is not in thinking that you have to not be silent to exercise your right to be silent. The illogic is in thinking that when you tell someone that they CAN remain silent and they DON’T, that somehow means that they haven’t shown that they don’t want to remain silent. It’s just plain common sense that if you do something you know you don’t have to, you have chosen to do it.
(3) There wouldn’t be a question of waiver — implied, express, or otherwise — if he had actually exercised his right to remain silent. There flat-out wouldn’t be a statement to use against him. But he spoke. He did not remain silent. Thus, the question was not whether he had a right to remain silent. It is whether the police could keep asking him questions in the face of that silence. And requiring someone to actually say “I don’t want to be questioned anymore” is no more strange or contradictory than requiring him to say “I want a lawyer”.
June 2, 2010, 11:24 amChris Travers says:
I note that Orin has not used his 9th Circuit Smackdown category since he set it up. Perhaps you could fix the problem by setting up a 6th Circuit Smackdown category and then the problem will go away ;-)
June 2, 2010, 11:52 amspo says:
Kenvee, I am not interested in debating the “right to remain silent”—the bottom line, whether you like it or not, is that there IS such a right in the face of police interrogation. SCOTUS, in Miranda and its progeny, has seen fit to require a waiver of that right, which cannot be presumed simply because of a warned statement. So what Sotomayor is saying is that in order to show that he has not waived his Miranda right, he has to affirmatively say so–which is odd given that what we are talking about is the right to remain silent.
I get that there’s an artificiality to this whole thing that is tedious, and I get that the guy can simply say “I don’t want to talk to you”, and that will avoid all the problems. But if you accept Miranda’s rule that there has to be a waiver (I get that you don’t, but the Court does, at least for the time being), then Sotomayor makes an effective point. Not one that carries the day, by any stretch, but still effective.
I don’t like Miranda too much either–but it isn’t going anywhere anytime soon (see Dickerson). And pointing out the flaws in Miranda isn’t difficult–it’s been done before. I have no interest in rehashing them.
June 2, 2010, 12:19 pmKent Scheidegger says:
I boldly predict the 9th Circuit Smackdown category will be needed again relatively early in the next term.
Okay, that’s not really all that bold.
June 2, 2010, 12:22 pmspo says:
This one, http://www.scotuswiki.com/index.php?title=Belleque_v._Moore , seems like it will be 9-0. There are hints that the Ninth played a little loose with the record–see also Mirzayance and Wong v. Belmontes.
June 2, 2010, 12:42 pmKenvee says:
spo, how do you reconcile the “right to remain silent” with all of the subsequent opinions pointing out that it’s NOT the right to simply be silent in all circumstances? I’m not debating whether Miranda is right or wrong, but saying that the shorthand of the rule is being turned into the rule itself. You have the right to remain silent… except when you don’t. The courts have recognized many, many times when you don’t in the past, such as providing a voice exemplar, doing field sobriety tests, identifying yourself, answering book-in questions, etc. etc. etc. I don’t see any distinction between those other exceptions and an exception that saying “I don’t want to answer questions” also is not a testimonial statement and thus doesn’t implicate Miranda.
Trying to simply say “you can remain silent, it’s WRONG to make you say anything at all!” is ignoring all of the caselaw since Miranda as well as basic common sense. Discussion of whether a waiver should be implied is one thing, but it’s not simply a matter of “Miranda says so.” Because it doesn’t.
June 2, 2010, 2:32 pmwhit says:
as to your first paragraph, i agree. but i was talking about what suspects KNOW about miranda rights in regards to a previous post. you are talking about something completely different… admissibility of statements in regards to miranda
as to the gang member who flipped. regardless of whether he understood his miranda or NOT, or it wasn’t read or whatever, the OTHER gang members have no standing in that regards. at least that’s how standing works everywhere i’ve been a cop.
iow, if you do not read a guy miranda (or somehow violate it etc.) where a court later rules it should have been read, then nothing the suspect says can be used against HIMself. it most definitely can be used against somebody he “flipped” on because they have no standing in regards to HIS rights.
similarly, as i understand it, if a search of person X’s pockets was later deemed unconstitutional, but you also found evidence that could be used against person Y, that evidence is usable against person Y because he has no standing for X’s rights.
or at least that’s the case where i work(ed)
June 2, 2010, 2:49 pmwhit says:
i have a problem with the way miranda is worded in many agencies.
they have miranda cards that say “you have the right to remain silent. anything you say can and will be used against you in a court of law ”
that’s simply FALSE.
lots of stuff you say can’t be used AGAINST you and may be used iN YOUR FAVOR. it assumes and tells the suspect that ANYTHING he says is incriminating, when in fact that is simply false. if what the suspect says, for example, provides a rock solid alibi (he was in dubuque and the crime occurred in phoenix), then that stuff he said CAN’T be used AGAINST him.
it’s part of the cult of miranda, that even the people who design the language of the miranda cards presuppose that it’s ALWAYS a bad idea to talk to the cops, which is simply rubbish
June 2, 2010, 2:52 pmwhit says:
i think part of the point is that the court is saying if the guy has been read miranda, says he understands it, and then starts answering questions, that’s it’s a de facto waiver. whether or not the court said that explicitly, that’s what they are saying.
it’s kind of like the case law surrounding two party consent in my state. we (anyone, actually) needs consent from the other person in a PRIVATE conversation if recording it. it’s been established that if you tell somebody “i’m turning on the tape recorder and what you are saying is being recorded” after you turn it on, and the person continues to talk, that they have given a “waiver”. same concept.
June 2, 2010, 2:57 pmWednesday round-up | theConstitutional.org says:
[...] the Volokh Conspiracy, Jonathan Adler observes that Thompkins is the fifth Sixth Circuit habeas case that the Supreme [...]
June 3, 2010, 1:58 amFriday round-up :SCOTUSblog says:
[...] the Volokh Conspiracy, Jonathan Adler observes that Thompkins is the fifth Sixth Circuit habeas case that the Supreme [...]
June 4, 2010, 8:27 amIs the Sixth Now the “Most Reversed” Circuit? | theConstitutional.org says:
[...] of Appeals for the Sixth Circuit has gone 0–5 before the Supreme Court this term. As I noted here, all five cases were pro-prisoner habeas cases. The article discusses the role of the Michigan [...]
June 5, 2010, 12:10 pmDave M. says:
Oh, Whit, you have SO MUCH to learn: http://www.youtube.com/watch?v=6wXkI4t7nuc …
July 10, 2010, 3:12 pm