Please, just don’t say anything.
Posted By admin on May 28, 2009
The Supreme Court destroyed a fundamental federal protection of a criminal defendant’s right to counsel on May 26, 2009. In a deeply divided 5-4 decision, the SCOTUS overruled its 1986 decision in Michigan v. Jackson, which prohibited police from interrogating a criminal defendant once he had invoked the right to legal counsel. Under Tuesday’s decision in Montejo v. Louisiana, police may now – under certain circumstances – initiate the interrogation of a suspect without the defendant’s attorney being present.
The rule in Jackson states simply that “an accused person in custody who has expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” (Michigan v. Jackson, 475 U.S. 625) This basic rule was overturned on Tuesday.
The story goes like this – the defendant, Jesse Montejo, was arrested for the robbery and murder of Lewis Ferrari. Montejo waived his Miranda rights and allowed himself to be interrogated before being brought before the court, where an attorney was appointed to represent him.
After an attorney was assigned to him, the police requested that Montejo go with them to search for the murder weapon. While on this little driveabout, Montejo wrote a letter of apology to Ferrari’s widow, implicating himself in the murder. It was only after Montejo returned from this trip that he was able to meet with his court-appointed attorney, who was – reasonably so – furious that the police had interrogated Montejo in his absence.
The letter written by Montejo during this little side trip ended up being the central piece of evidence at his trial, and he was subsequently found guilty and sentenced to death.
How, exactly, did this happen? Well, Montejo’s little side trip and interrogation without the presence of counsel was based on a quirk of Louisiana state law – in a nutshell, in order to enjoy the protection of representation, you have to ask for it:
“Under the rule adopted by the Louisiana Supreme Court, a criminal defendant must request counsel, or otherwise “assert” his Sixth Amendment right at the preliminary hearing, before the Jackson protections are interrogation in the absence of counsel. But if the court on its own appoints counsel, with the defendant taking no affirmative action to invoke his right to counsel, then police are free to initiate further interrogations provided that they first obtain an otherwise valid waiver by the defendant of his right to have counsel present.” (2009 U.S. Lexis 3973)
Justice Scalia, in the majority opinion, finds the Louisiana rule to be a bit quirky – and if allowed to stand, it would give defendants in some states far fewer rights than defendants in other states under the Jackson standard, which established that the police can’t interrogate a defendant who has or has been assigned an attorney unless the attorney is present. He argues that the rule in Jackson was unreasonable because some states appoint public defenders automatically, while other states require the defendant to request representation. He further argues that the Sixth Amendment right to counsel, which Jackson protected, is guarded well enough by the Fifth Amendment right to counsel as laid out in Miranda v. Arizona, Edwards v. Arizona, and Minnick v. Mississippi.
However, the Fifth Amendment protections in these cases are limited to custodial interrogations, and are not applicable in non-custodial defendants or defendants interacting the police in a non-interrogation situation. Further, the reason that a defendant should have an attorney present during questioning is that even an innocent person can make their situation legally more complicated by saying something out of turn, and the likelihood of a defendant doing that increases exponentially as their stress level increases. An attorney is able to coolly evaluate the situation, and advise the defendant on when to speak and when to shut up, and advise the defendant of the ramifications of their words.
An attorney is the defendant’s zealous advocate, acting as the intermediary between the defendant and the justice system. The attorney works in these situations day in and day out, and is not easily intimidated by the police. A defendant, on their own, has to have the wisdom, knowledge, and courage to stay quiet – and is much less likely to do so without an attorney present to act as a buffer.
So, instead of tightening the rules, Scalia decides to simply make it fair for everyone and do away with them altogether. Jackson is overturned by Montejo, and now the police can question you without your attorney being present. Fun, huh?
Scalia goes even further by saying that there was little chance a defendant will be badgered into waiving the right to have his attorney present during police-initiated questioning. In regards to the Jackson rule, he says: “The considerable adverse effect of this rule upon society’s ability to solve crimes and bring criminals to justice far outweighs its capacity to prevent a genuinely coerced agreement to speak without counsel present.”
Yep. Uh-huh.
Justice John Paul Stevens – author of the 1986 Jackson decision and the only member of the ’86 court who is still sitting, obviously and vehemently disagreed with Scalia. He argues that “once an attorney-client relationship has been established through the appointment or retention of counsel, as a matter of federal law the method by which the relationship was created is irrelevant: The existence of a valid attorney-client relationship provides a defendant with the full constitutional protection afforded by the Sixth Amendment.”
Stevens goes further and states: “The majority’s decision to overrule Jackson rests on its assumption that Jackson’s protective rule was intended to “prevent police from badgering defendants into changing their minds about their rights”, but scathingly continues by stating that “the majority’s analysis flagrantly misrepresents Jackson’s underlying rationale and the constitutional interests the decision sought to protect. While it is true that the rule adopted in Jackson was patterned after the rule in Edwards, the Jackson opinion does not even mention the anti-badgering considerations that provide the basis for the Court’s decision today. Instead, Jackson relied primarily on cases discussing the broad protections guaranteed by the Sixth Amendment right to counsel — not its Fifth Amendment counterpart. Jackson emphasized that the purpose of the Sixth Amendment is to protect the unaided layman at critical confrontations with his adversary by giving him the right to rely on counsel as a ‘medium’ between himself and the State.”
Stevens reiterates the flawed reasoning of the majority, stating that: “the Court rejects the interests of criminal defendants with the flippant observation that any who are knowledgeable enough to rely on Jackson are too savvy to need its protections, and casts aside the reliance interests of law enforcement on the ground that police and prosecutors remain free to employ the Jackson rule if it suits them. Again as a result of its mistaken understanding of the purpose behind Jackson’s protective rule, the Court fails to identify the real reliance interest at issue in this case: the public’s interest in knowing that counsel, once secured, may be reasonably relied upon as a medium between the accused and the power of the State. That interest lies at the heart of the Sixth Amendment’s guarantee, and is surely worthy of greater consideration than it is given by today’s decision.”
The decision in Montejo is a major step backwards in defendant’s rights – and reflects a growing trend in the SCOTUS to take rights that we have held firm to for years and discard them on the cutting room floor. Just remember the old adage – anything you say can and will be used against you. Keep your trap shut, and insist that your attorney be present.
