Article 25

Ask an Unemployed Lawyer

In Uncategorized on 07/11/2013 at 9:07 am


Be Silent, and Know that Your Government is God

By U.L.

Dear Unemployed Lawyer:

I found it ironic that the long-silent Clarence Thomas wrote an opinion saying a defendant’s silence can now be used against her at trial. What gives? I thought we had the right to remain silent.
Chatty Cathy


 Dear Chatty:

 You have a right to remain silent? Justice Samuel Alito would like to disabuse you of such terrorist thinking.

“Popular misconceptions notwithstanding, the Fifth Amendment guarantees that no one may be compelled in a criminal case to be a witness against himself,” Alito wrote in last month’s Salinas v. Texas. “It does not establish an unqualified right to remain silent.”

In this case, your silence can be used against you to convict you of murder.

The facts

In January 1993, Houston police asked Genovevo Salinas to come to the station to talk about a couple of murders, “to clear him as a suspect.” Salinas was at a party where two men were later found shot to death; there were no witnesses. Police did not give him his Miranda warnings (“You have the right to remain silent …”), and told him he was free to leave at any time.

As police asked questions, Salinas answered them, until police asked whether the shotgun from his home would match the shells they found at the murder scene. Salinas shut up. Fidgeted. He had already given the police his shotgun for testing.

At closing argument of the murder trial with little evidence, the prosecutor used Salinas’ silence to succor sentimentality. He told the jury stuff like, “An innocent person would have said … ‘What are you talking about? I didn’t do that. I wasn’t there!’” But Salinas, the prosecutor said, “didn’t respond that way. … He wouldn’t answer that question.”

Wait a minute, you say (NSA pause tape here), a prosecutor is urging a jury to find you guilty because a non-guilty person would have said something – and you didn’t? That’s banana republic stuff. A logical fallacy. The government can’t do that, can they?

Yes we can

The question before the court was this: Whether the Fifth Amendment prohibits the prosecutor from eliciting and commenting on the evidence concerning the defendant’s silence.

This was not the question the court answered. And by not answering the question, the plurality of the court said, yep, what the prosecutor did there was just fine.

This gets even sillier when you know that six of the nine justices did answer the question before the court, with 4-2 voting in the affirmative, that the Fifth Amendment prohibits such conduct.

However, it was the three justices who refused to answer the question who won the day. How does that happen? Well, for the purposes of upholding the decision of the lower Texas court, the three who don’t want to answer the question joined with the two vehemently opposing such Fifth Amendment protections, making the final vote 5-4.

Brown man’s burden

Just as recent Fourth Amendment cases have moved the burden from the police showing they had a valid warrant to the defendant proving the police’s warrantless search was “unreasonable,” so now goes the Fifth Amendment.

We’ve gone from Miranda warnings, during which police are required to inform a person in custody of his rights, to Salinas, where a person is not only assumed to know his rights, but he must affirmatively invoke the Fifth Amendment – this applies in all situations, of course, because Salinas was not under arrest when he was “silent.” He was being cooperative. Until he wasn’t. He must pay.

That’s why Chief Justice Jon Roberts and justices Alito and Anthony Kennedy didn’t answer the question before the court: They held that they didn’t need to, because Salinas failed to tell police he was invoking his Fifth Amendment right against self-incrimination.

That’s right: You have to tell police why you are silent. Otherwise, how can they do their jobs?

Any other result “would needlessly burden the government’s interests in obtaining testimony and prosecuting criminal activity,” the court explains.

Later: “A contrary result would do little to protect those genuinely relying on the Fifth Amendment privilege while placing a needless new burden on society’s interest in the admission of evidence that is probative of a criminal defendant’s guilt.”

And: “Insisting that witnesses expressly invoke the (Fifth Amendment) privilege assures that the government obtains all the information to which it is entitled.

Emphasis added, since they’d rather you not notice.

Judicial porn

On the far-right idealistic end of the spectrum, we have justices Clarence Thomas and Antonin Scalia. Thomas the Textualist wrote a concurring opinion (which Scalia joined) insisting that the Fifth Amendment literally only bars a defendant from being forced to testify against himself. Using a defendant’s silence to convince a jury he’s guilty is just peachy.

I’ll save my rant on literal readings of any text for another time, save this: Why is Clarence Thomas allowed more than three-fifths of a vote?

The neoconservative group – justices Alito, Kennedy, Roberts – understand and appreciate the value of appearing moderate when pushing the judicial branch further right. That’s why they didn’t answer the question. Plural opinions are also much more difficult to report – see the Obamacare decision. And because the media could report a unanimous decision about genes that sounded pretty important, released the same day, they could ignore the more complex case involving your civil rights.

The neoliberal wing – justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan – well, who cares what they think? Three crazy bitches and a pint of ice cream. The “liberal wing,” the media calls them.

I’m not of the tin-foil hat crowd, Chatty, but look at what we have here: The National Security Agency could legally use their meta-data to connect you to visiting a website deemed dangerous to the government. Police could show up at your door, ask you questions, and if you refuse to answer, use that against you at a trial.

“Why would someone named Chatty Cathy say nothing, if she’s not guilty?” the prosecutor would ask the jury. “Chatty talks all the time … unless she is trying to hide something!”

George Orwell didn’t have it quite right in 1984 (“War is Peace, Freedom is Slavery, Ignorance is Strength”). Instead, in 2013, our legal system has given us: a Corporation is a Person, Money is Speech, and the Bill of Rights is for Police Protection.

Never take the advice of an Unemployed Lawyer. Always consult with an attorney for any legal advice in your situation. If, however, you want to ask, write to


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