Supreme Court Rules For Police On Interrogations : The Two-Way The Supreme Court ruled that police can now continue to question criminal suspects in some instances even after they've asked for a lawyer. It was a five to four
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Supreme Court Rules For Police On Interrogations

The Supreme Court in Washington, Tuesday, May 26, 2009. AP Photo/Susan Walsh hide caption

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AP Photo/Susan Walsh

The Supreme Court ruled that police can now continue to question criminal suspects in some instances even after they've asked for a lawyer. It was a five to four decision, the typical split in cases where the court's conservative majority lines up against its liberal bloc.

But those on the political left who would rail against the court's conservatives should keep in mind that the Obama Administration was on the same side as the court's conservatives on this one.

As NPR's Laura Sullivan reports:.

The decision was close - five to four -- and the result is that suspects waiting for a lawyer can still be questioned by authorities. The decision overturns a 23-year old ruling that once a suspect asks for an attorney, all bets are off until a lawyer arrives.

In writing for the majority, Justice Antonin Scalia said that old ruling was quote "poorly reasoned." He argued that a suspect can sit silently if he chooses to. But just because a suspect's waiting for an attorney, doesn't mean police have to remain silent.

The ruling comes in the case of Jesse Montejo, a Louisiana man convicted of murdering an acquaintance who volunteered information before his attorney arrived. In his dissent, Justice John Paul Stevens said the ruling will "diminish the public's confidence in the reliability and fairness of our system of justice. "

And this is how Lyle Denniston reported the court's decision on Scotusblog.

Splitting 5-4, the Supreme Court on Tuesday overruled its 23-year-old ruling in Michigan v. Jackson on the rights of a criminal suspect in police custody who has asked for a lawyer. The Court did so in Montejo v. Louisiana (07-1529), in an opinion written by Justice Antonin Scalia. After Scalia announced the decision, Justice John Paul Stevens spoke orally for the dissenters -- a somewhat unusual gesture. Stevens was the author of the 1986 decision that was cast aside; he was the only member of the Court then who is still sitting.

The Court had signaled in late March that it was considering overruling the Jackson decision, a decision designed to assure that the right to a lawyer is not lost during police questioning of a suspect they are holding, resulting in a confession to the crime. The Court ruled there that, once a suspect has claimed the right to a lawyer, any later waiver of that right during questioning would be invalid, unless the suspect initiated communcation with the officers. Among others calling for it to be overruled was U.S. Solicitor General Elena Kagan, who argued it was no longer necessary to protect the rights of those in police custody.

Montejo vs. Louisiana is intriguing. It basically turns on the question of when is a defendant really represented by a lawyer. Put another way, just because a criminal defendant asks for a lawyer doesn't mean that in the eyes of the law he has really asked for a lawyer.

As David Muraskin writes on Scotuswiki:

The Sixth Amendment provides a right to counsel at each "critical stage" of a criminal proceeding. This case addresses whether a defendant must affirmatively accept the appointment of counsel to receive the protections of that right, particularly the protection not to be interrogated by the state without counsel's presence or consent.

The Supreme Court opinion provides this background:

Petitioner Jesse Montejo was arrested on September 6, 2002, in connection with the robbery and murder of Lewis Ferrari, who had been found dead in his own home one day earlier.

Suspicion quickly focused on Jerry Moore, a disgruntled former employee of Ferrari's dry cleaning business. Police sought to question Montejo, who was aknown associate of Moore. Montejo waived his rights under Miranda v. Arizona, 384 U. S. 436 (1966), and was interrogated at the sheriff's office by police detectives through the late afternoon and evening of September 6 and the early morning of September 7. During the interrogation, Montejo repeatedly changed his account of the crime, at first claiming that he had only driven Moore to the victim's home, and ultimately admitting that he had shot and killed Ferrari in the course of a botched burglary. These police interrogations were videotaped.

On September 10, Montejo was brought before a judge for what is known in Louisiana as a "72-hour hearing"--a preliminary hearing required under state law. Although the proceedings were not transcribed, the minute record indicates what transpired: "The defendant being charged with First Degree Murder, Court ordered N[o] Bond set inthis matter. Further, Court ordered the Office of Indigent Defender be appointed to represent the defendant." App.to Pet. for Cert. 63a.

Later that same day, two police detectives visited Montejo back at the prison and requested that he accompany them on an excursion to locate the murder weapon (which Montejo had earlier indicated he had thrown into a lake). After some back-and-forth, the substance of which remains in dispute, Montejo was again read his Miranda rights and agreed to go along; during the excursion, he wrote an inculpatory letter of apology to the victim's widow. Only upon their return did Montejo finally meet his court-appointed attorney, who was quite upset that the detectives had interrogated his client in his absence.

At trial, the letter of apology was admitted over defense objection. The jury convicted Montejo of first-degree murder, and he was sentenced to death.

The Louisiana Supreme Court affirmed the conviction and sentence. 06--1807 (1/16/08), 974 So. 2d 1238 (2008). As relevant here, the court rejected Montejo's argument that under the rule of Jackson, supra, the letter should have been suppressed. 974 So. 2d, at 1261. Jackson held that "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." 475 U. S., at 636.

Citing a decision of the United States Court of Appeals for the Fifth Circuit, Montoya v. Collins, 955 F. 2d 279 (1992), the Louisiana Supreme Court reasoned that the prophylactic protection of Jackson is not triggered unless and until the defendant has actually requested a lawyer or has otherwise asserted his Sixth Amendment right to counsel. 974 So. 2d, at 1260--1261, and n. 68.

Because Montejo simply stood mute at his 72-hour hearing while the judge ordered the appointment of counsel, he had made no such request or assertion. So the proper inquiry,the court ruled, was only whether he had knowingly, intelligently, and voluntarily waived his right to have counsel present during the interaction with the police. Id., at 1261. And because Montejo had been read his Miranda rights and agreed to waive them, the Court answered that question in the affirmative, 974 So. 2d, at 1262, and up-held the conviction.

Among his arguments supporting the court's decision, Justice Antonin Scalia, who wrote the majority opinion, said the court's prior ruling known as Michigan v. Jackson or sometimes just Jackson, was simply unnecessary because of other legal protections, including the Miranda ruling which requires police to read defendants their rights.

These three layers of prophylaxis are sufficient. Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warn-ings. At that point, not only must the immediate contact end, but "badgering" by later requests is prohibited. If that regime suffices to protect the integrity of "a suspect's voluntary choice not to speak outside his lawyer's pres-ence" before his arraignment, Cobb, 532 U. S., at 175 (KENNEDY, J., concurring), it is hard to see why it would not also suffice to protect that same choice after arraignment, when Sixth Amendment rights have attached. And if so, then Jackson is simply superfluous.

Scalia added this flourish:

This case is an exemplar of Justice (Robert) Jackson's (no relation to the Jackson case) oft quoted warning that this Court "is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added." Douglas v. City of Jeannette, 319 U. S. 157, 181 (1943) (opinion concurring in result). We today remove Michigan v. Jackson's fourth story of prophylaxis.

The judgment of the Louisiana Supreme Court is vacated, and the case is remanded for further proceedingsnot inconsistent with this opinion.

Justice John Paul Stevens, author of the 1986 Jackson decision, not surprisingly disagreed strongly with Scalia. He argued his conservative colleagues should have reversed the Louisiana court instead of whacking the Jackson precedent:

Today the Court properly concludes that the Louisiana Supreme Court's parsimonious reading of our decision in Michigan v. Jackson, 475 U. S. 625 (1986), is indefensible.Yet the Court does not reverse. Rather, on its own initiative and without any evidence that the longstanding Sixth Amendment protections established in Jackson have caused any harm to the workings of the criminal justice system, the Court rejects Jackson outright on the ground that it is "untenable as a theoretical and doctrinal mat-ter." Ante, at 6. That conclusion rests on a misinterpretation of Jackson's rationale and a gross undervaluation of the rule of stare decisis. The police interrogation in this case clearly violated petitioner's Sixth Amendment right to counsel.

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