Constitutional rights aren’t reserved for sympathetic figures. They apply as well to those accused of the most heinous crimes, and it’s hard to imagine facts worse than the ones presented in the case of S.S., a New Jersey father accused of making his four-year-old daughter perform oral sex on him. It’s been nearly a decade since that allegedly happened, and the courts of New Jersey still are trying to figure out what to do about a series of statements S.S. made to the police when they first questioned him in 2009.
Three times the police tried to get S.S. to explain why he thought that his little girl would make up such a horrible lie about him. And three times S.S. refused to do so. The first time the police pressed him he said: “No, that’s all I got to say. That’s it.” The second time the cops pushed, he said: “I don’t know. That’s all I can say.” When the police finally asked: “Anything you want to tell us?” S.S. answered “No.” These exchanges are chronicled in the court record of the case and in the briefs filed by the attorneys for New Jersey and the defendant, whose name is being withheld to protect the identity of his daughter.
But shortly after he uttered that last “no” in a Hudson County interrogation room S.S. broke down crying and admitted that his daughter was not a liar and that he had been drunk on the day in question. He then proceeded to describe the crime. Prosecutors used that incriminating statement at S.S.’s trial and a jury quickly convicted him. He was sentenced to 15 years in prison and that would have been that, except that the conviction was overturned on appeal — on an issue relating to S.S.’s sexual proclivities with his wife, of all things. Now, in the run-up to a second trial, there’s a big fight over whether S.S. successfully invoked his constitutional right to remain silent during the interrogation.
There are countless cases in which lawyers and judges argue over whether defendants have, indeed, exercised their constitutional “right to remain silent.” What makes this dispute unusual are the arguments marshalled for and against S.S. and the role that video of the long-ago interrogation has played in shaping the case. The essential question is this: Can a suspect’s tone and demeanor when talking to the police — captured on a grainy video seen years later — mean more to a reviewing judge than the actual words that come out of the suspect’s mouth?
That’s essentially what an appeals court concluded last year: that S.S. didn’t really mean what he said because his body language and flat affect during the questioning belied a plausible interpretation of his words. To the appellate judges, S.S.’s “words and silences, when witnessed on the videotape, did not require exploration by the officers, or that the questioning stop. It is clear from the defendant’s level of unchanged tone when he responded that he meant he had no explanation for his daughter’s conduct. He had said what he was going to say about that subject.” (Emphasis added)
Even when S.S. said “no” that final time, the appeals court concluded, “it seems clear that defendant was only denying culpability, not that he was expressing the desire to stop the questioning.” If the state supreme court justices agree — the argument in the case took place late last month — then S.S.’s second trial will include his incriminating statement and he will almost certainly be convicted again. Defense attorneys say those appellate judges are applying the state’s standard incorrectly and that no jury should hear what S.S. said after he said “No.”
If S.S. were being tried in a federal court, his appeal would probably not have made it this far. In 2010, in Berghuis v. Thompkins, the U.S. Supreme Court reaffirmed the federal principle that a suspect must unambiguously invoke his or her right to remain silent and that if a suspect says nothing, or utters an ambiguous statement, the police have no duty to seek clarification; they are free to use whatever is subsequently said at trial. New Jersey’s rule goes beyond that — to the benefit of defendants. If a person even ambiguously invokes the right to remain silent, the police have a duty to seek clarification. And then judges are permitted to use a “totality of the circumstances approach that focuses on the reasonable interpretation” of both a suspect’s “words and behavior.”
The trial judge who handled S.S.’s first trial, a jurist who saw the defendant speak at length during the course of the case, watched the same video his appellate colleagues watched and concluded that S.S. had invoked his right to remain silent. That “no” really meant “no” inside that room. The appellate judge, however, concluded that S.S. had not invoked his right — even ambiguously — and so police were not obliged to stop their questioning of S.S. to seek clarifIcation about what he meant.
State attorneys say that the appeals judges got it right. Not just because S.S. failed to specifically demand his right, but because the trial judge did not give due weight to the suspect’s demeanor on the videotape. “When a reviewing court is considering findings that are based solely on a videotape, and the reviewing court is in a position to view the same evidence and make independent findings, the reviewing court should not be handcuffed to a two-dimensional transcript,” New Jersey’s lawyers wrote in their briefs.
S.S.’s attorneys argue that “the right to remain silent is constant, objective, and universal” and that S.S. repeatedly invoked his rights in a way that should have halted that interrogation. The police, the defense contends, “were relentless. They ignored [S.S.] when he gave the [first] invocation. They ignored him when he told them ‘That’s all I can say,” and when he bluntly told them that ‘No,’ he did not have anything to say. And when words failed him, they ignored his silence too.” They have told the state supreme court that the trial judge was best situated to evaluate S.S.’s intentions in that interrogation room.
The ACLU of New Jersey, meanwhile, takes the defense argument even further. The appellate court’s “tone” test, the organization argues, creates equal protection problems. S.S. is black, and, say the ACLU lawyers, suspects of color don’t necessarily talk the way white judges do. (One of the judges on the appeals court is white, the other Hispanic. The trial judge is black). The “evenness of tone” that S.S. displayed that day when questioned by the police “may reasonably have been a response” by him as a young black man “to encounters with law enforcement.” The need for “black men to interact with police in quiet, measured tones is widely acknowledged in academic and popular commentary,” the ACLU brief asserts, and “when a court looks beyond an explicit invocation of a right to determine meaning by tone, it risks misinterpreting a defendant’s statement according” to race.
Both sides want an “explicit” test of whether a suspect has asserted the right to be silent. They cannot agree on whether S.S. was as explicit as he needed to be when he was asked repeatedly by the police why his little girl would lie about such a horrible thing.