SJC says head shake is suspect’s legal right

A simple shake of the head is sufficient for a suspect to invoke the right to remain silent and end a police interrogation under the Massachusetts Constitution, the state Supreme Judicial Court ruled yesterday, giving more protection to state citizens than federal law.

Massachusetts judges will not be bound by federal judicial rulings that require defendants to clearly announce they don’t want to be interviewed, said Justice Barbara Lenk, writing for the unanimous court.

“Both the text and history of [Article 12 of the state Declaration of Rights] support the view that it provides greater protection against self-incrimination than the Fifth Amendment,’’ Lenk wrote.


Lenk observed that “given the nature of the right at issue - the right to remain silent - it seems sensible to recognize that a suspect may well communicate through conduct other than speech.’’

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Suffolk District Attorney Daniel F. Conley harshly criticized the SJC’s conclusions, saying the court had introduced uncertainty over what police need to do while questioning suspects.

“The Supreme Court and other states nationwide have adopted clear standards to establish when a defendant invokes or waives his right to silence,’’ Conley said. “This opinion does the opposite. It doesn’t help police do their jobs better. It confuses what’s expected of them and sets the table for even more litigation down the road.’’

The SJC’s ruling grew out of the Oct. 10, 2008, arrest of Brandon M. Clarke by two MBTA Transit Police officers investigating a groping incident in a subway station.

Clarke, who is in his 20s, was taken to Transit Police headquarters, where Officers Christopher Ahlborg and Audrina Lyles began their interrogation by giving him his Miranda warnings as required by federal and state courts.


Clarke, according to a transcript included in the SJC’s ruling, asked whether he was required to answer the officers’ questions. He was told that the decision was his and that nothing would happen to him if he invoked his constitutional rights.

“I just want to go home,’’ Clarke said.

“You just want to go home?’’ Ahlborg told him. “So you don’t want to speak?’’

At that point, according to the courts, Clarke “shook his head back and forth in a negative fashion.’’

Ahlborg later told Boston Municipal Judge James W. Coffey that he concluded the head-shaking by Clarke meant that he wanted to stop the questioning. But Lyles, his partner, testified that she thought Clarke misunderstood the situation and that the suspect wrongly assumed he would be released with no charges being filed against him.


She pressed ahead with the interrogation, eventually obtaining incriminating statements against Clarke that were used to charge him with indecent assault and battery and other charges for allegedly brushing his hand against a man while riding a subway car.

After a hearing, Coffey concluded that Clarke’s head-shaking should have ended the questioning, according to court records.

The SJC said Coffey, a former Suffolk County homicide prosecutor, was correct.

“The right to remain silent is the right to refuse to provide compelled testimony against oneself - the essence of the privilege against self-incrimination,’’ Lenk wrote.

“To require a suspect, before a waiver, to invoke his or her right to remain silent with the utmost clarity, as called for by [federal rulings], would . . . provide insufficient protection for residents of the Commonwealth under Article 12,’’ she added.

In a telephone interview, Rebecca A. Jacobstein, Clarke’s court-appointed appellate attorney, welcomed the ruling.

“If you invoke your right to remain silent, even if it’s not of the utmost clarity, then it’s going to be respected in this state,’’ said Jacobstein, of Watertown. “And the police can’t trample on your rights.’’

MBTA spokesman Joe Pesaturo said Transit Police are reviewing the ruling but no disciplinary action is expected.

“The chief of police will review the decision and then determine an appropriate course of action,’’ he said. “I can tell you unequivocally that any course of action he takes will not include disciplinary measures.’’

Conley said in a statement that even though prosecutors can no longer use Clarke’s statements against him, they still have enough evidence to go forward.

“We intend to pursue this case,’’ Conley said in the statement.

John R. Ellement can be reached at Martin Finucane can be reached at