Source: Houston Chronicle
Author: Brian Rogers
Date: April 16, 2013
Photo Credit: Houston Chronicle
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"You have the right to remain silent."
That may be the one phrase every American knows about the criminal justice system. It is repeated thousands of times a day as someone is arrested, on television and in real life, explicitly telling that person that he has a basic right to stay quiet - all the way through a trial - and it will not be used against him.
But when that right actually kicks in will be a question for U.S. Supreme Court justices on Wednesday as they hear a Houston case about a man who refused to answer a question posed by police before he was told about his right to not say anything. That silence, however, was later used to help convict him of murder.
"It's a very important case," said Neal Davis, the attorney who argued 46-year-old Genovevo Salinas' case through two levels of state appellate courts before the U.S. Supreme Court agreed to hear the issue.
"It has to do with whether a person has the right to remain silent and not have it used against them if police question them before they're arrested."
Two brothers, Juan and Hector Garza, were killed with a shotgun at a party in December 1992.
A month later, Salinas emerged as a suspect and investigators went to his home, where he showed them his shotgun and agreed to answer questions at the police station.
During an hourlong interview, before he was arrested or taken into custody, Salinas answered every question Houston police detectives had except one. When asked if forensic evidence for the shotgun that Salinas owned would match evidence from the scene, Salinas was silent.
Arrested years later
A detective testified that "he looked down at the floor, shuffled his feet, bit his bottom lip, clinched his hands in his lap, began to tighten up."
He was released but not charged. The shotgun shells from the crime scene did match the shotgun and an informant told police Salinas confessed to him. He was charged with murder but fled authorities and was not arrested until 2007.
Salinas was convicted in 2009 after a prosecutor during closing arguments focused on his silence.
As the law stands, the right to remain silent, which is guaranteed by the Fifth Amendment of the U.S. Constitution, starts when a suspect is taken into custody - typically an arrest by a police officer who actually reads the suspect his "Miranda" rights.
Those rights, which begin with that famous seven-word warning, was named after another Supreme Court case, Miranda v. Arizona.
In this case, the Supreme Court will have to weigh whether a person's silence, before he is in custody, can be used against him at trial.
Prosecutors from the Harris County District Attorney's Office will argue that a statement, or silence, before a person is arrested is a voluntary statement that can be admitted in court.
"The bottom line is whether this defendant voluntarily gave this information without any coercion by police," said Harris County District Attorney Mike Anderson. "There will be ancillary issues that I'm sure people will argue, but that's the primary issue."
Anderson will sit second chair to Alan Curry, the head of the office's appellate division who will be fielding questions from the nine justices on the highest court in the land.
The Supreme Court hears a tiny percentage of cases they are asked to look at, generally to settle constitutional law questions that are being decided in different ways around the country.
Davis said he expected the high court to hear Salinas' case because courts around the country have been split on the issue.
As the case rose through the appeals process, Jeffrey Fisher, a Stanford Law professor who runs a Supreme Court litigation clinic at the school, volunteered to help. Fisher, who has experience before the court, is expected to argue the case.
"If people can't legitimately remain silent in the face of law enforcement's accusations, we'll have backslid quite significantly toward the inquisitorial system of criminal justice that the Constitution is designed to reject," Fisher said. "We're here to make sure the court understands that any kind of police questioning, whether it's after a formal arrest or not, raises the same concerns that the Fifth Amendment is designed to deal with."
At the table with Davis and Fisher will also be noted Houston attorney Dick DeGuerin.
Davis and DeGuerin worked together on the original appeal. Davis has since opened his own practice.
"This case will have national implications," DeGuerin said. "It could become as well-known and as frequently cited as Miranda."
DeGuerin said some courts have spoken about the "cruel trilemma" of either telling the truth, lying or staying silent. When prosecutors tell jurors they can consider that someone did not answer a question, then the silence is being used against them, DeGuerin said.
Because the Supreme Court does not typically make sweeping rulings, lawyers could be answering questions that parse the issue in a lot of ways, including whether gestures, like in Salinas' case, are "silence" or "statements."
Whatever happens, Davis said, he was awed by the opportunity to travel to Washington and argue before the court.
"It's every lawyers' dream to appear before the U.S. Supreme Court," he said. "You're lucky to get there once in your lifetime.