Jim Dey: Right to be silent while in police custody is golden

Jun. 13—Motorocyclist Michael Pinkett was walking out of a Walmart bathroom in Pike County when a sheriff's deputy arrested him.

Sgt. Matt Frazier told him "'We need to walk out of this store without making a scene,' and he did it no problem," Frazier later testified.

Charged with speeding and fleeing from police, Pinkett pleaded not guilty.

When his case went to trial in 2018, the prosecutor argued that Pinkett's silence in the face of the admonition not to cause trouble was proof of his guilt. He was convicted and sentenced to two years in prison.

A state appellate court overturned his conviction, and then, earlier this month, the Illinois Supreme Court unanimously affirmed the appellate court's decision.

What did the state do wrong?

Over defense objections, prosecutors argued that Pinkett's silence proved guilt. But both courts of review found that silence doesn't prove anything and Pinkett's compliance was improperly turned against him.

"The state's improper comments informed the jury that (Pinkett) was silent not as an exercise of his right to remain silent or as compliance with Frazier's orders, but because he was guilty," wrote Justice Mary Kay O'Brien.

The appellate and high courts ruled that trial Judge Jerry Hooker should have declared a mistrial after the prosecutor's initial improper comment.

Instead, the judge was persuaded that the state was free to invoke the silence issue, one the prosecutor repeatedly raised.

An arrestee's right to remain silent is fundamental. The Fifth Amendment to the U.S. Constitution states that no person "shall be compelled ... to be a witness against himself."

The U.S. Supreme Court's groundbreaking decision in the 1966 case Miranda v. Arizona created a bright-line rule requiring police to inform those in custody that they have a right to remain silent.

Illinois rules of evidence written before the Miranda ruling state "evidence of silence is not relevant to the question of guilt" and is off limits as evidence except under narrow circumstances.

Those rules make it necessary for judges and prosecutors to tip-toe carefully around this legal third rail.

But Pinkett's prosecutor couldn't wait to bring it up, telling jurors that his police witnesses would testify that "at no point" did Pinkett challenge his arrest.

That was proof, the prosecutor argued, of Pinkett's consciousness of guilt. When the defense objected, prosecutors relied on People vs Givens to argue that Pinkett's silence was not constitutionally protected, and the trial judge allowed it, even though the facts in the Givens case were unlike those in Pinkett's.

With the runway clear, the prosecutor repeatedly raised the silence issue.

Questioning a police officer, the prosecutor asked, "Did he, at any point, ask why he was being detained?"

During closing arguments, he said Pinkett "has the right to say nothing. But you have to ask yourself, what would a normal person who had — if that's his argument — nothing to do with this, what that normal person would have said when they're suddenly detained in the bathroom of Walmart."

Prosecutors argued that their error — if it was one — was harmless, and that the evidence against Pinkett was overwhelming.

But the high court said the error was far from harmless because evidence that Pinkett was fleeing from police was not overwhelming. (Pinkett conceded his conviction on speeding charges). The court found references to Pinkett's silence "flavored the entirety of the proceedings."

The high court's unanimous ruling reveals it was not a close case. So why take it for review after the appellate court overturned Pinkett's conviction?

Perhaps the Illinois Supreme Court wanted to send a message to prosecutors and judges in all 102 counties to avoid foolish mistakes.