Where Do Parents Rate?

Parents that have ever been on the receiving end of an investigation by social worker or agent of the local child services organization, or Department of Job and Family Services in Ohio, will describe their desperate feeling of helplessness.  The great amount of statutory extra-judicial authority given these departments is nothing short of shocking to parents confronted with demands from the child services agents.  They are exponentially outraged when they discovery their children have been interviewed by such agents without parental consent.

Child services across the nation are now re-evaluating their child interview practices in light of the decision of the Federal Ninth Circuit Court of Appeals in Camreta v. Greene. In the case, the Oregon Department of Human Services received a report of alleged abuse against a nine-year old child by a parent.  A department caseworker and local police officer decided to interview the child at school, without parental consent or a warrant. The charges against the child's father, Mr. Greene, were dismissed.  The family then filed a Section 1983 lawsuit against the caseworker and officer for violating her daughter's Fourth Amendment right against unreasonable search or seizure   The Ninth Circuit Court of Appeals found a violation by applying the traditional probable cause warrant requirement as opposed a reasonableness balancing test.  Camreta, the social worker, claimed the analysis should instead be the reasonableness balancing test which has been the analysis where the invasion is something less than an arrest, for instance a less intrusive Terry stop which only requires reasonableness.

It is certainly exciting that the United States Supreme Court had agreed to hear the case, in other words, it granted certiorari which is an order to the lower court that it shall review the decision.  Oral arguments were had before the high court on March 1, 2011.  The actual oral argument recording can be heard at http://www.oyez.org/cases/2010-2019/2010/2010_09_1454/argument.  Those hoping for an opinion from the Court on the merits, may be disappointed.  A great portion of the dialogue in the case addressed the question as to whether the opinion had an current justiciable claim or a live case or controversy. It seems the Greene family and the child had since moved from the state of Oregon.  Some members of the Court wondered how the Court might dispose of the case if there is no longer a case pending below as the lower court found in favor of sovereign immunity for the social worker.

Should the Court reach a decision on the merits, the opinion could be far reaching.  There were multiple questions which specifically inquired about at what length of time does an interview amount to a seizure and at what age a child has a capacity to consent to the seizure.  In Ohio, the police are permitted to interview children without a Miranda waiver executed by both the child and the parent, which is known elsewhere as the “independent advice/interested adult standard.”  If the Court issues an opinion on the merits, the reasoning of the Court will certainly have a remarkable effect on other such standards relating to investigations involving children.

When a One Act “Course of Conduct” Can Amount to a Miranda Waiver.

American criminal law seems to  discuss “a course of conduct” whenever it needs to include facts that damage the defense.  It was only a matter of time that one action during one encounter with one law enforcement official would become a “course of conduct.”  The United States Supreme Court found as much last year when it decided the Miranda  case of Berghuis v. Thompkins (2010), 130 S.Ct. 2250 in a 5-4 vote.  At its heart, Berghuis was deciding whether suppression was required where a suspect made a statement but neither invoked nor waived his Miranda rights.  The Miranda  question accepted by the Supreme Court was specifically: Whether the Sixth Circuit expanded the Miranda rule to prevent an officer from attempting to non-coercively persuade a defendant to cooperate where the officer informed the defendant of his rights, the defendant acknowledged that he understood them, and the defendant did not invoke them but did not waive them.  It was the “did not invoke them but did not waive them” that drove the opinion and really makes the case so significant.

Thompkins was arrested as a suspect in a murder.  He was Mirandized, but declined to sign the form and there was conflicting evidence as to whether he verbally confirmed he understood his rights.  Id. at 2256.  Sadly, the Court seems to overlook that the officer gave conflicting testimony during the suppression hearing testifying that the defendant read the rights back to him, but at trial testifying that he did not recall whether he had asked him to verbally acknowledge whether he understood his rights.  On evidence so critical, the officers changing position received only a parenthetical – literally it was only a parenthetical in the opinion.

For two hours and 45 minutes of the interrogation, Thompkins remained silent and refused to answer any question, but never verbally invoked his right to remain silent.  Critics will obviously argue that remaining silent would be sufficient evidence of invoking the right to remain silent.  After two hours and 45 minutes of silence, in an 8 by 10 room and subject to repeated questions by the investigators, he answered this question, “do you believe in God?”   Then he answered, “do you pray to God?”  Then, of course, he answered “yes” to “do you pray to God to forgive you for shooting that boy down?”  The conviction soon followed.  

The opinion does reference the acquittal of a co-defendant and some other conflicting testimony about co-defendants.  This is ultimately the danger of every criminal case.  If it was inappropriate as a matter of law to allow into evidence the statements recovered after nearly three hours of interrogation and this evidence led to a wrongful conviction, that is the real tragedy everyone in the criminal justice system should hope to avoid.

 

The United States Supreme Court analyzed whether Thompkins had invoked his right to remain silent.  The Court acknowledges that for the two hours and 45 minute interrogation he remained silent.  This might sound like a “course of conduct” to the lay reader.  That said, he ultimately did answer those three questions about his faith.  Instead of relying on the two hour and 45 minute course of silence to find a course of conduct that invoked the right to remain silent, the Court found the answers to the three questions as a “course of conduct” which would waive the right to remain silent.  The Court found “[t]he fact that Thompkins made a statement about three hours after receiving his a Miranda  warning does not overcome the fact the he engaged in a course of conduct indicating waiver.”  Id. at 2263.  

The Court itself acknowledged the plain language of Miranda which directs that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the facts that a confession was in fact eventually obtained.”  Id. at 2261, citing Miranda v. Arizona (1966), 384 U.S. 436, 475.  The Court went on to also emphasize the settled case law that from Miranda that the “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently” made a waiver.  Berghuis at 2261, citing Miranda at 475.  Despite this settled law, the Court found a waiver after three hours of silence.

Now, three simple “yes” answers after three hours of silence under interrogation can amount to a “course of conduct” which indicates the suspect’s intelligent decision to waive his Miranda rights.  The Court rejected the dissent’s position that three hours of silence was a course of conduct evidencing that the suspect was invoking his right remain silent.  As the dissent described it, a defendant “who wishes to guard his right to remain silent against such a finding of “waiver” must, counterintuitively, speak[.]”