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You Have No Right To Remain Silent

The three men who sat in the seat on the Supreme Court of the United States prior to its current embarrassment were giants – true giants – of judicial integrity. As the Great Depression ravaged the economy and the morale of cities across America, Frank Murphy was an incredibly effective Mayor of Detroit. When he was elected Governor of Michigan in the late 1930’s, he supported workers in their quest for justice as against the state’s biggest employers. As Attorney General in the Roosevelt Administration, he established a Civil Rights Unit in the criminal justice department. And when he was appointed to the high court in 1940, he spent the rest of his life seeking to protect individual rights, especially of the most vulnerable. When Justice Murphy died unexpectedly, Truman appointed Tom Clark.


Just as Murphy served Roosevelt as Attorney General, Clark served Truman in the same capacity. In that role he chose Eunice Kennedy to head a commission on juvenile delinquency in an effort to focus attention on rehabilitating young people who had made some bad choices, usually because they were dealt a terrible hand. He was also instrumental in obliterating restrictive covenants in real estate. Again, he worked on behalf of the most vulnerable and not the most connected. As a Supreme Court Justice he came to believe that the Constitution was not a dead relic, but instead a living, breathing instrument of governance with the capacity to grow and change with a growing and changing nation. When his son was appointed Attorney General, he stepped down from the Court so as to avoid any appearance of a conflict of interest.


When that happened, the incomparable Thurgood Marshall became the first Black Justice of the Court (incidentally, Tom Clark was the first – and only – Texan ever appointed to the high court). It is impossible even to summarize who Marshall was and his brilliant mind, but we get a glimpse in some of his powerful dissenting opinions. For, in dissent, the fire can either smolder or flare up – sometimes both – in ways a majority opinion rarely does. It is Justice Marshall’s dissenting opinion fifty years ago this week that bears reviewing.


DISSENTING OPINION RABBIT HOLE: There were two independent dissents – both excellent. The other was written by the wonderfully cantankerous William O. Douglas. His starts off by pointing out that the Grand Jury, despite its noble beginnings, is nothing more than a tool for prosecutors. Here is just a snippet about the Grand Jury:

It was secured at Runnymede from King John as a cornerstone of the liberty of the people. It was to serve as a buffer between the state and the offender. For no matter how obnoxious a person may be, the United States cannot prosecute for a felony without an indictment. The individual is therefore protected by a body of his peers who have no axes to grind or any Government agency to serve. It is the only accusatorial body of the Federal Government recognized by the Constitution.

The remainder of the dissenting rant is no less magnificent. His point is that – contrary to the Court's view today – the protections of the Fifth Amendment as against self-incrimination are expansive and do not depend on the “testimonial” nature of the evidence. These precious guarantees – already eroded – positively vanish in light of the majority’s opinion. I mean, it is stunning.


The case was United States v. Dionisio, 410 U.S. 1 (1973) (decided with United States v. Mara, 410 U.S. 19 (1973)). In that matter, a grand jury subpoenaed voice exemplars of 20 different people in relation to accusations of gambling activities. The defendant argued that producing such a voice exemplar violated both his Fourth and Fifth Amendment rights. The Court disagreed. This is why grand juries are endowed with such tremendous powers to obtain otherwise unobtainable evidence to this day. But Justice Marshall had concerns.


He begins by taking issue with the constrained view of the right prohibiting forced self-incrimination. He reminds us that an early case talked about not being compelled to “furnish evidence” against oneself (which, incidentally, is the exact language of the Massachusetts Constitution pt. 1 art 12 which should, in my opinion be interpreted significantly more broadly than the Fifth Amendment privilege, but I digress.) Indeed, the accusatory system in place in the United States puts the entire burden of proof on the government – that is kind of the point. If the mighty state with the power to restrain liberty or even cause death, accuses someone of any infraction, it is on its own to gather the evidence needed to convict him of a crime. It cannot solicit the assistance of the accused.


It is in this light that Justice Marshall looks to the origin of the “testimonial” nonsense in regard to the Fifth Amendment – and it turns out it comes from nothing more than dicta in an older case. The Court then took that aside by Justice Holmes and created a whole theory related to “testimonial evidence” out of it (the Court is even more notorious for this sloppy idiocy today which does not make it valid or right, but sadly does make it the law.)

Then Justice Marshall holds our hand as he guides us down the slippery slope of an offhand comment into the sorrowful pit at its bottom where rights go to die. It is a masterfully written cautionary tale.


The dissent continues, however, to note the problems with the Court’s interpretation of the Fourth Amendment when it comes to evidence produced to the Grand Jury. He demonstrates that to reach its convoluted conclusion, the majority opinion employed slight of hand. It distracted the reader with an analysis of search and seizure which, while not exactly wrong, also did not apply to the question presented to the Court. The Court reasoned that presenting evidence to a Grand Jury was not so much of an inconvenience as to spark concerns related to unreasonable searches and seizures. But, as Justice Marshall illuminates, that is not only untrue, it is also not the point of holding the guarantees of the Fourth Amendment to the power of the Grand Jury. He says it better than I ever could,


Whatever nice legal distinctions may be drawn between police and prosecutor, on the one hand, and the grand jury, on the other, the public often treats an appearance before a grand jury as tantamount to a visit to the station house. Indeed, the former is frequently more damaging than the latter, for a grand jury appearance has an air of far greater gravity than a brief visit ‘downtown’ for a ‘talk.’ The Fourth Amendment was placed in our Bill of Rights to protect the individual citizen from such potentially disruptive governmental intrusion into his private life unless conducted reasonably and with sufficient cause. Id. at 44.


As always with the Fourth Amendment, reasonableness is the touchstone. Therefore, the Grand Jury, of course, can investigate. But the demands it makes must be reasonable. This is especially true as the line between prosecutor and grand jury has blurred to the point of not existing, providing the grand jury with extensive subpoena powers – far beyond what would be reasonable for police to obtain via warrant. This has obliterated its initial intended function which is not to serve the state or the accused, but to serve the people.


As the current Court takes on monumental cases, some humility is in order. The nine members, whether intelligent or not, learned or not, politically driven or not, have limited knowledge. Past members have crafted opinions nearly out of whole cloth while claiming they were merely adding to the existing canon. But few, if any, Courts have done what the present one aims to do which is overturn precedent after precedent after precedent until no one knows what anything means anymore. Doing this in the name of “original intent” or “textualism” or whatever other made up poppycock it wants to claim makes it no less ill-advised or dangerous. The person who now sits in the chair once held by Justice Marshall and Justice Clark and Justice Murphy – all imperfect men, but men of extraordinary knowledge and humility and curiosity and grace and intellect – is nowhere close to their class in any capacity. His compatriots on the bench are not much better.


Fifty years ago this week, the Court made a mistake. It ignored how the grand jury operates in the real world and gifted to prosecutors far more power to obtain evidence from individuals than the Framers intended. The dissenting opinions explained why this was the road to tyranny. They had no idea what havoc the next half century would wreak.

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