MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh, and you're listening to These Days on KPBS. This is the time of year when the U.S. Supreme Court is busy. Just yesterday the justices agreed to hear arguments challenging the order to release thousands of inmates held in California prisons. And recently the court made an important change in a suspect’s Miranda rights. On this Legal Update, we’ll be speaking about those two major legal stories and a curious case from New York about the perils of being too pretty. Joining us for the discussion is These Days legal analyst Dan Eaton.
DAN EATON (These Days Legal Analyst): Hi, Maureen. We like to mix it up a little bit, don’t we?
CAVANAUGH: Pretty as always.
EATON: Oh, thank you very much. So are you. Anyway…
CAVANAUGH: Let’s start with this change in Miranda.
EATON: Right.
CAVANAUGH: You have the right to remain silent. I mean, virtually every American knows that that is the first part of the Miranda warning…
EATON: Right.
CAVANAUGH: …that law enforcement officers are required to give suspects who are in custody before they’re questioned or interrogated. Now just this June first, a closely divided Supreme Court issued a ruling clarifying what a suspect must do to assert that right. So, Dan, what can you tell us about the background of this case?
EATON: Yeah, let’s look at the facts because that’s very important to understand what the ruling was. You had a suspect by the name of Van Chester Thompkins in Michigan. He was in custody and he was read his Miranda warnings, then the police started to question him for two hours and 45 minutes. He said essentially nothing. He confirmed that he understood his Miranda warnings but refused to sign something affirming it but, nonetheless, it was clear he understood. And he said nothing except occasionally for a couple of yes and no’s and so forth but only on really incidental questions, nothing substantive until two hours and 45 minutes into the interrogation. And that’s when the police decided to try a different tack, and they said, do you believe in God? And he answered yes. And then they asked him, do you pray to God? And he answered, yes. And they report that tears were welling up in his eyes and then they asked—and I want to read this because I want to get it exactly right. An officer said, quote, do you pray to God to forgive you for shooting that boy down, closed quote. Thompkins said yes, and looked away. So obviously the question was whether he could – they could use that confession, as it were, in his criminal prosecution or whether he effectively had asserted his right to remain silent and that question was inappropriate. They should’ve stopped the interrogation.
CAVANAUGH: Because his lawyer, Mr. Thompkins’ lawyer…
EATON: Umm-hmm.
CAVANAUGH: …basically said that he, by sitting there for such a long time silent, that he did assert his right to remain silent.
EATON: That’s exactly right. There were two related questions, Maureen, that the Supreme Court had to confront, one, whether he had asserted his right to remain silent and whether, two, he had waived his right to remain silent by answering the officer’s questions as he did. And that was really the question before the court and it was a split decision, a five-to-four decision.
CAVANAUGH: What did they decide?
EATON: The five-to-four majority ruled that Thompkins had not effectively asserted his right to remain silent. It was an opinion by Justice Kennedy, who’s often the swing vote in these cases, and that he had waived or voluntarily given up his right to remain silent by answering the officer’s questions toward the end of the questioning.
CAVANAUGH: So in other words they made the point that Thompkins actually had to say that he wanted to remain silent, he had to verbally assert that right.
EATON: You have to speak, said the court, to assert your right to remain silent, just as you have to speak, as the court had previously held in a case called Davis, to assert your right to counsel. In either case, if you do speak and say either I’m not talking period, or I want counsel, the interrogation ends. And said no, the right to remain silent has to be asserted by some words indicating I don’t want to talk or I’m not talking, hard stop, and then you can end the interrogation. Otherwise, it’s fair game, even for an interrogation that went as long as almost three hours before he said something substantive in response to their questions.
CAVANAUGH: But there’s actually even more to the issue, isn’t there? He didn’t say he wanted to remain silent but he also specifically didn’t waive that right either, so how did the court decide on that?
EATON: He did not. There’s no question that Thompkins did not say I waive my right to remain silent. What the majority concluded, Maureen, is that he had indirectly given up his right to remain silent. Why? Because he indicated he understood his right to remain silent. Second, he answered the officer’s question about whether he prayed for forgiveness for shooting the victim rather than saying I’m not talking. And third, there was no evidence of any kind of coercion. So for those three reasons they said, you know, he obv – he had waived his right to remain silent. Moreover, the police were not required to obtain Thompkins’ affirmative waiver, to get him to say ‘I waive my rights’ for waiver to be deduced from all of the circumstances. So the Supreme Court said, you know, you didn’t assert it by staying silent and you didn’t – and you effectively waived by answering these questions.
CAVANAUGH: So what is the bottom line that comes out of this court’s decision about Miranda?
EATON: Well, the bottom line is—and I’ll just read from the summary of Justice Kennedy’s opinion. He said, quote, a suspect who has received and understood the Miranda warnings and has not invoked his Miranda right – rights, waives or gives up the right to remain silent by making an uncoerced statement to the police. And those were – that’s what the court found here, and so that statement could be used against Mr. Thompkins and it was used against him in convicting him.
CAVANAUGH: It, like so many decisions that we’ve seen recently, it was five-to-four. What did the dissenting justices say?
EATON: Maureen, this is why it’s significant because it’s Justice Sotomayor’s first significant dissent and, of course, she was a former DA in New York. She actually wrote for the four more liberal members of the court, herself, Justice Stevens, Justice Ginsburg and Justice Breyer, and she said, look, the court majority is turning this up – Miranda upside down. At least it’s counterintuitive that a suspect, to assert his right to remain silent, has to speak and, certainly, the police – we’re not changing the Miranda warning to require the police to say you have to speak to assert your right to remain silent, and she said in her dissent, the police have every reason not to let the suspect know that he has to speak to assert his right to remain silent because, of course, after all, they want this information. So that’s why they’re saying, well, it’s unlikely they’re really going to know this. She wrote that the court’s new requirement the suspect make a clear statement to police that he intended to assert his right to remain silent, quote, invites police to question a suspect at length notwithstanding his persistent refusal to answer questions in the hope of eventually obtaining a single incriminating statement, which is what they did.
CAVANAUGH: So, in other words, if someone doesn’t know about this ruling and they just prefer to stay silent after the Miranda warning, the question – the police can continue to question them.
EATON: Absolutely right. And – But, of course, he wasn’t completely silent. There were intermittent uh-uhs and yeses and so forth but not really substantive to anything like, for example, do you want a peppermint, and I think he said no or something. But the bottom line is, it was three hours. And the New York Times in its editorial, for example, unsurprisingly did not agree with the decision but also said maybe the Supreme Court ought to have put some sort of time limit in it. That sounds more like a legislative than a judicial act but, nonetheless, that is where the court came down, a five-to-four decision that had the effect actually of at least making it clear under what circumstances a suspect has to assert his right to remain silent.
CAVANAUGH: Now what are some of the other big rulings the Supreme Court is expected to hand down in the next few weeks before the justices conclude this term at the end of the month?
EATON: Maureen, why won’t they just cooperate and hand down the big decisions on the Monday before I’m on this show so I don’t have to say, well, coming up is… You know, I mean, there’s so many big blockbuster decisions that are going to start coming down starting this Thursday. Now they’re going to start handing down decisions twice a week. One, of course, involves whether the conviction of Jeff Skillings (sic), the former chairman of – and CEO – the former CEO of Enron, has to be overturned because the law under which he was convicted, the Honest Services Law, is unconstitutionally vague. The questioning suggested that the justices may believe that that particular law—and there are two other cases raising the same issue—is unconstitutionally vague, which means that his conviction may very well be overturned…
CAVANAUGH: Overturned, wow.
EATON: …which is huge because, of course, Enron is a totem for all of this – the business ethics things that went on in the last decade. Another case that we are closely watching is whether the Second Amendment right to keep and bear arms was an individual right that the court recognized a couple years ago, applies limits to the rights of cities and states to regulate the right to keep and bear arms as opposed to just the federal government or federal entities like the District of Columbia. And then another issue that is coming up is whether the Ontario, California police department violated an officer’s reasonable expectation of privacy in checking text messages when at least his immediate supervisor said they wouldn’t if he paid for a certain – any text messages over the amount that they were given with their general plan, so those…
CAVANAUGH: You’ve spoke about that on this show a number of times, a couple of times, yes.
EATON: I have spoken, yes, and CNN Headline News actually, so I’ve gotten around on this particular case. And I said all right, it’s going to come down on Monday, right? And then nothing.
CAVANAUGH: Yeah, well, we’ll talk about it again.
EATON: Yes, we will.
CAVANAUGH: And, well, as the term ends, the focus actually shifts for the people who are Supreme Court watchers to the confirmation hearings of Elena Kagan. And one case Kagan will consider if she is, indeed, confirmed this summer is a ruling by California federal judges ordering the release of 46,000 state inmates to relieve overcrowding in California prisons. What is this case about?
EATON: This is a very big case, Maureen, and very important for California. This arises out of an August 2009 ruling of a special three judge federal panel and what that court said was that they applied a 1996 law called the Prison Litigation Reform Act, which limits the power of federal judges to issue a prison release order. But the judges here said, look, these prisoners were claiming that they unconstitutionally were being deprived of their right to mental and other medical care. That particular unconstitutional – that particular constitutional violation is, said the judges, primarily caused by overcrowding, which was a finding they needed to make under the Prison Litigation Reform Act. They also said that that problem could be addressed by relieving the – by forcing the release of nearly 25% of our prison population of 165,000. And they also said that, look, public safety will not be hurt. Why? Because there are ways that you can address this through parole reform and through rehabilitation reform, and they have to make all those findings to issue this rather broad prison release form – prison release order. And so what the Supreme Court said in granting review is, not so fast. And the state has hired some very high powered Supreme Court advocacy for – to argue this. A man by the name of Carter Phillips is one of the top Supreme Court advocates in the country, so that’s going to be a closely watched case.
CAVANAUGH: And when it is argued, it’s my understanding that the argument is not going to be about whether or not California prisons are, indeed, overcrowded. It’s about the legal technicality of whether this federal judge panel had the authority to order the release, is that right?
EATON: Well, and it’s not a technicality because Congress intended to limit the power of federal judges to issue it. That’s right, Maureen. Look, no one disputes that the prisons are overcrowded. The question is whether they are overcrowded to the degree that they are violating prisoners’ constitutional rights, and that’s what this panel found. Even under the court’s August 2009 order, realize that all the court said within the next two years, through December of 2011, you have to reduce it, not so that it’s not overcrowded at all but so that it’s only 137.5% of capacity rather than the substantially greater overcapacity that exists currently in the prison system. So nobody’s disputing it’s overcrowded. What the state is saying is we’re doing our best. The Prison Litigation Reform Act requires that we be given reasonable time. We have some concerns about public safety being addressed through this order. These – This court here in California went too far, Supreme Court, you need to reverse this decision even as we continue our efforts to relieve the overcrowding that everybody acknowledges exists.
CAVANAUGH: Okay, so arguments won’t take place on – before the Supreme Court until the fall. What happens to the order in the meantime?
EATON: It’s stayed. There is no effect on – The order does not go into effect right now. Nobody is going to be released until the Supreme Court ultimately disposes of this particular issue. So…
CAVANAUGH: And when can we expect a decision?
EATON: The end of this year or early next year. The Supreme Court is expected to hear oral arguments sometime this fall with the new justice, as you pointed out, whether it’s Elena Kagan or someone else, and the court then will issue a decision either at the very end of next year – of this year or sometime in the early part of 2011.
CAVANAUGH: Okay, so now we go from the serious to the sensational. There’s a case that’s been getting a lot of national media attention. I wonder why. Because it concerns a woman who apparently looked very good to her male coworkers in New York City. What can you tell us about this case, Dan?
EATON: I’ve sort of shorthanded this case, Maureen, it’s a case of Beauty and the Bank, all right? So that’s what we’re talking about. This concerns a case of a woman named Deborah Lee Lorenzana. And I have read her complaint. Her attorney sent it to me, actually, and I reviewed news stories. And she’s making two basic points, Maureen. First in her sex discrimination case, she is claiming that certain male supervisors at Citibank, which was her employer, prohibited her from wearing clothing they found distracting on her even though they let other people wear that and even more provocative clothing, other women at the bank wear that and other more provocative clothing. Bottom line is she is saying for sex discrimination is that she would not according to – they required her to dress so that they wouldn’t be distracted, and that is sexually discriminatory because she wouldn’t dress to please her male supervisor, and whether it was because she was homely or because she was especially good-looking, it’s sex discrimination because it objectifies women. But the bank has a fairly strong counter – and also, by the way, she is claiming she was retaliated against when she complained about the sex discrimination. She’s saying she was given inferior assignments that prevented her from meeting her numbers, that is to say the number of new clients that she was expected to bring in and so forth. And then she says she ultimately was fired because she complained about this treatment. But the bank has a pretty strong response to this.
CAVANAUGH: And what is the bank’s response?
EATON: The bank response is that Ms. Lorenzana was fired not because she had the looks of a model but because she lacked the skills of a banker. The fact is, she wasn’t making her numbers and the fact is that there were other issues of attendance and tardiness as well. And whether you could say that – even if you could argue that somehow that her appearance had a role in her discharge, the fact is that that is not a protected class. Beauty, and homeliness for that matter, are not a protected classification. Ms. Lorenzana is going to have to show a connection between either her gender and her termination and some of the other things that she says happened to her or she will have to show a connection between her complaints about sex discrimination, even if she can’t show that it was actual sex discrimination, and her termination.
CAVANAUGH: Let’s take this back one step.
EATON: Sure.
CAVANAUGH: Is it legal for an employer to tell an employee how to dress?
EATON: Yes, even in California you can tell an employee how to dress. As you know, I practice in this, defending and advising California employers, and California employers, under state law, are allowed to tell employees how to dress professionally and so forth as long as employers allow employees to dress consistent with their gender identity under California law.
CAVANAUGH: And so if this were a California case, could the bank have fired Ms. Lorenzana for the way she dressed, separate and apart from her job performance?
EATON: Well, could have, the short answer is yes, under a doctrine that’s called At Will, meaning that an employer can fire anyone at their will and an employee can quit at their will for good reason or no reason at all. But as a practical matter, I will tell you from experience, they don’t generally say that, yes, we fired her for looks. Employers will say that it has something to do with job performance. When you’re accused of discrimination, when an employer is accused of discrimination, Maureen, they have to come back with some facially valid nondiscriminatory reason for firing. Now firing someone because of the way they dress, maybe that’s technically nondiscriminatory but it’s probably not going to go over very well with a jury, so you’re going to want to come up with more than that. And the fact is, there are documented performance problems with Ms. Lorenzana. The key is, though, she claims those are all tied to the fact that her – she would not dress to please her male supervisors and, therefore, that it is all tied to sex discrimination and cannot be separated.
CAVANAUGH: Now, finally, you made the point that, you know, being good luck – good looking is not a protected class but…
EATON: It’s a burden but it’s one we all learn to live with, right?
CAVANAUGH: It’s one we learn to live with. Do good looking people have a legitimate complaint that they’re subject to discrimination in ways that more average looking people are or not?
EATON: Very interesting. Actually a Minnesota case that my former supervisor – my former assistant, Suzanne Mascarena, uncovered, and I talked about in February of 2007 on this show, said that, yeah, there was a woman who complained about this and said, no, alas, good looking people don’t have any – are not protected unless you can show by the way the dress standards were applied differently for women and men. But the bottom line is that there is some scholarly study that says that, yes, beauty can be an impairment, especially for women. And a new book, by the way, called “The Beauty Bias” argues that personal appearance ought to be a protected classification. It’s written by a wom – a Stanford legal scholar by the name of Deborah Rhode. It’s only illegal, by the way, in about a half a dozen places and only one state, the state of Michigan, which says that you can’t fire someone or take adverse action because of personal appearance. But, yeah, there are scholars that say that physical attractiveness, quote, complicate the work setting for women. Successful women’s opinions about whether their physical beauty is a help or hindrance in their careers are inconsistent. Some women believe that good looks are actually a disadvantage because it keeps them from being taken seriously.
CAVANAUGH: Okay, well, we’ll just have to soldier on, Dan.
EATON: Yes, we will, Maureen. Those of us who are good looking are just going to have to make the best of it.
CAVANAUGH: Dan, I want to thank you so much.
EATON: Thank you, Maureen.
CAVANAUGH: And if you’d like to comment on what you’ve heard, go online, KPBS.org/thesedays. I’ve been speaking with These Days legal analyst Dan Eaton. Coming up, a memoir about migraines as These Days continues here on KPBS.
