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Thread: Supreme Court overturns on Right to Counsel

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    http://scienceblogs.com/dispatches/2...rns_rule_o.php

    "Posted on: May 30, 2009 9:16 AM, by Ed Brayton
    The U.S. Supreme Court has overturned a landmark 1986 ruling that forbid the police from questioning suspects without their attorney present. The 1986 case, Michigan v Jackson, was overturned on Tuesday in a 5-4 ruling (PDF) in a similar case, Montejo v Louisiana.

    As I reported last month, the Obama administration had sided with the state of Louisiana in that case and argued for overturning the prior case.
    Michigan v Jackson established the rule that if someone accused of a crime has an attorney or has requested the appointment of an attorney by the court, police may not question them without that attorney being present even if the accused agrees to waive the right to have their attorney present during that particular session of questioning. Under Jackson, any waiver of that right was presumed to be invalid because it was not made with the advice of counsel.
    Justice Scalia, writing the majority opinion joined by Chief Justice Roberts and Justices Alito, Thomas and Kennedy, said "the marginal benefits of Jackson (viz., the number of confessions obtained coercively that are suppressed by its bright-line rule and would otherwise have been admitted) are dwarfed by its substantial costs (viz., hindering "society's compelling interest in finding, convicting, and punishing those who violate the law." (citations omitted)
    This provoked an angry response from the dissenting justices, led by Justice Stevens, who took the unusual step of reading his dissenting opinion aloud from the bench. The majority, he wrote, "flagrantly misrepresents" the issues of the case and has "overrule[d] Jackson to correct a 'theoretical and doctrinal' problem of its own imagining." Such tough language is usually aimed by Justice Scalia, not at him.
    A group of 19 former judges, prosecutors and law enforcement officials, including prominent conservatives like former FBI Director William Sessions and former Bush administration Deputy Attorney General Larry Thompson, filed an amicus brief (PDF) arguing strongly against overturning Jackson.
    Their brief argues that the Jackson ruling "provides an easily enforceable rule governing post-arraignment custodial interrogations," that the "simplicity and clarity of the rule facilitate[s] the training of police officers" and "provides judges a straightforward, objective standard to determine whether those confessions are admissible."
    "Absent such a clear test," they argue, "law enforcement personnel, prosecutors, and trial judges will have to start anew in developing a common law from particularized decisions reflecting inherently subjective assessments of the tactics as well as the intent of investigators, the timing as well as the content of interrogations, and the understanding as well as the free will of defendants."
    Their brief also argues that the purpose of the Sixth Amendment goes beyond merely preserving the adversary process and that the Jackson rule protects crucial Fifth Amendment due process protections that help ensure a fair trial and public confidence in the integrity of the criminal justice system:
    Third, Jackson links two key criminal procedural rights -- the Sixth Amendment right to counsel under Gideon v. Wainwright and the Fifth Amendment rights of an accused under Miranda -- which are fundamental to the adversary process and maintain public confidence in our criminal justice system. Discarding Jackson would undermine both rights. Allowing the police to initiate interrogation of a represented defendant and to use any resulting statements would strip away protections the attorney can provide, interfere with the relationship between counsel and client, and undercut the integrity of criminal trials...To abandon a rule that safeguards them would erode the public confidence they foster. It would signal that enduring legal principles and important constitutional rights are no longer so enduring nor so important.
    Just another example of the Obama administration adopting Bush administration positions and undermining constitutional protections. "


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    Im happy about this one. Just another way criminals had extra protection.
    Freedom isn't free, but this is America! We will find a way to outsource it and save some money - Jeremy

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    All the more reason to shut up until you do get to talk to a lawyer. I doubt most people will do this in practice though.

    -ljp

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    Regular Member Statesman's Avatar
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    Legba wrote:
    All the more reason to shut up until you do get to talk to a lawyer. I doubt most people will do this in practice though.

    -ljp
    +1

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    jeremy05 wrote:
    Im happy about this one. Just another way criminals had extra protection.
    So everyone that gets arrested and questioned is a criminal?

    Protections are in place to protect the innocent against abuse of power, not protect the guilty (that's what defense lawyers are for ). Perhaps we should do away with the 5th amendment, and force people to talk to police?

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    jeremy05 wrote:
    Im happy about this one. Just another way criminals had extra protection.
    Good job, hope you get stopped open carrying and say something stupid.

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    Regular Member Gunslinger's Avatar
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    jeremy05 wrote:
    Im happy about this one. Just another way criminals had extra protection.
    No it's not. An axiom dating back to English common law is "better 99 guilty go free than one innocent be punished." This was a bad decision, although narrow in scope.
    "For any man who sheds his blood with me this day shall be my brother...And gentlemen now abed shall think themselves accursed, they were not here, and hold their manhoods cheap whilst any speaks who fought with us on Crispin's day." Henry V

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    Regular Member AZkopper's Avatar
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    Honestly, it only makes sense.

    If you advise someone of their Miranda Rights, and they invoke a right to council, you stop questioning. If however, since 1986, they recant that request to council, and want to talk to you, they could not. They had wiaved their choice to give a statement or cooperate, regardless of what they said afterwards. Now, they have the individual right, as adults, to recant a request for council and be questioned.

    For those of you not in law enforcement, you'd be amazed how many people initially invoke their right to council, but then when they realize their "side" is not being heard, want to give "their side". I am not advocating people should give up their right to council, I am saying they should have the choice at all times.

    It is Individual Rights at best--people making decisions for themselves.

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    This goes beyond someone being able to revoke their right to remain silent until they confer with counsel. This allows the police to continue an interrogation even after someone invokes their right to remain silent, before counsel arrives. A suspect remaining silent does not impose a duty on the police to remain silent. The conviction rate will likely rise in the wake of this, as people get cajoled into "telling their side" in the interest of "cooperation" and "setting the record straight."

    Anything you say can and will be used against you in a court of law.

    That is the one thing you can absolutely take at face value from the police. They can and will lie about the facts, they will conjecture about unknowns in unfavorable ways, they will promise "deals" they have no legal authority to make and which are not binding on any prosecutor or judge, etc, ad infinitum. Go hang out in a courtroom if you think this doesn't happen every day.

    -ljp

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    AZkopper wrote:
    For those of you not in law enforcement, you'd be amazed how many people initially invoke their right to council, but then when they realize their "side" is not being heard, want to give "their side".
    And how often does telling "their side" get them deeper in trouble, or at least do them no good, rather than clearing them? Does it ever put them in a better position?

    That is reason enough to not question someone without an attorney present. That is, if you're more interested in justice than in finding something to nail them with.



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    Campaign Veteran deepdiver's Avatar
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    My initial reaction agrees with AZkopper that this is a matter of personal freedom to change your mind and personal responsibility if someone makes a decision to revoke their right to counsel even after first invoking it. However, Legba makes a good point that it could open up a suspect to ongoing coercion or interrogation by LEO trying to get the suspect to revoke his decision to ask for counsel.

    I'm torn seeing wisdom on both sides of the issue. It seems that the easiest solution is to rule that if the suspect invokes counsel, the interrogation stops, period. However, if the suspect on their own decides to revoke that decision they can do so. It seems so simplistic which is why I think I am really missing something here.
    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    I am sure that someone on here will find the case but one of the famous ones was where a kidnapping suspect had invoked his right to council and refused to talk. Two LEO were carrying him to jail in the back seat of the patrol car. The two LEOin the front started talking about how the little girl was probably going to die her parents were so worried etc. They did not go straight to the station but took a side trip or two. After awhile the suspect in the back seat finally told them where the little girl could be found. If I remember correctly the girl was dead by then.

    The court threw out the evidence that he told them where the girl was as even though they did not directly ask any questions of the suspect they did coerce him into telling them where she was by their actions. He was set free.

    If anyone can find this case and set the facts straight I would appreciate it.

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    Regular Member AZkopper's Avatar
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    Legba wrote:
    This allows the police to continue an interrogation even after someone invokes their right to remain silent, before counsel arrives.
    I did not get that out of the decision. I'll have to re-read it. If you are correct, I disagree with the court's decision. Once a suspect invokes, badgering him/her for statements is wrong. If he recants voluntarily, well, GAME ON.

    The dissenting opinion is right on one thing, regardless: This decision takes a clear line and muddies it. Now, instead of a clear Invoke=no talk, it becomes a matter of was the "revoked invoke" voluntary or coerced.

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    In the interest of full disclosure, I have not read the opinion as such. My information is from an attorney explaining it on a radio interview. He said that a suspect invoking the right to remain silent does not bar the police from continuing their questioning until counsel does arrive. Clarification would be helpful, if this is incorrect or if there are other implications not mentioned. It was a 5-4 decision, IIRC.

    If someone voluntarily waives their rights, then too bad for them, I agree. I saw a woman on Cops (or a similar "reality" police show anyway) who was convinced by the police to consent to search of her apartment. Her boyfriend was a supposedly a coke dealer and the police told her that he had dragged other women down with involvement in his dope dealing in the past, and it would be good for her to be rid of the guy. Consenting to the search would be the best way to get rid of him and dissociate herself from his criminality, they explained. Well, she relented and they found the expected contraband, but in such quanitities and in such a manner that they decided that she must have known about this, to the extent that she was considered an accomplice. She ended up getting a 10 year prison sentence. I don't pity her, but she might have avoided all this if she had told both the boyfriend and the police to go to hell and stay out of her place. Just say no indeed.

    -ljp

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    At a preliminary hearing required by Louisiana law, petitioner Montejo was charged with first-degree murder, and the court ordered the appointment of counsel. Later that day, the police read Montejo his rights under Miranda v. Arizona, 384 U. S. 436, and he agreed to goalong on a trip to locate the murder weapon. During the excursion,he wrote an inculpatory letter of apology to the victim’s widow. Uponreturning, he finally met his court-appointed attorney. At trial, his letter was admitted over defense objection, and he was convicted andsentenced to death. Affirming, the State Supreme Court rejected his claim that the letter should have been suppressed under the rule of Michigan v. Jackson, 475 U. S. 625, which forbids police to initiateinterrogation of a criminal defendant once he has invoked his right tocounsel at an arraignment or similar proceeding. The court reasoned that Jackson’s prophylactic protection is not triggered unless the defendant has actually requested a lawyer or has otherwise assertedhis Sixth Amendment right to counsel; and that, since Montejo stood mute at his hearing while the judge ordered the appointment ofcounsel, he had made no such request or assertion.


    It seems that the defendant in fact never did request a lawyer or invoke his right to remain silent. This puts a little different light on this case rather than the police continuing questioning after requesting an attorney. Seems as if this is one time when keeping his mouth shut didn't work.

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    Legba wrote:
    In the interest of full disclosure, I have not read the opinion as such. My information is from an attorney explaining it on a radio interview. He said that a suspect invoking the right to remain silent does not bar the police from continuing their questioning until counsel does arrive. Clarification would be helpful, if this is incorrect or if there are other implications not mentioned. It was a 5-4 decision, IIRC.

    If someone voluntarily waives their rights, then too bad for them, I agree. I saw a woman on Cops (or a similar "reality" police show anyway) who was convinced by the police to consent to search of her apartment. Her boyfriend was a supposedly a coke dealer and the police told her that he had dragged other women down with involvement in his dope dealing in the past, and it would be good for her to be rid of the guy. Consenting to the search would be the best way to get rid of him and dissociate herself from his criminality, they explained. Well, she relented and they found the expected contraband, but in such quanitities and in such a manner that they decided that she must have known about this, to the extent that she was considered an accomplice. She ended up getting a 10 year prison sentence. I don't pity her, but she might have avoided all this if she had told both the boyfriend and the police to go to hell and stay out of her place. Just say no indeed.

    -ljp
    I scanned through most of this and it appears that the attorney on the radio is correct but very misleading. In this case at the hearing the defendant was assigned a lawyer and informed of his miranda rights. During the entire time he did not say anything. The court basically ruled that since he never said that he wanted a lawyer, never said that he wanted to remain silent never said to the judge that he accepted the court appointed attorney then he could still be questioned.

    If you tell the police that you want a lawyer and will not answer any more questions then they have to stop questioning you. This was repeated several times in the ruling. However you must indicate that you want to remain silent. The attorney on the radio from what you interpreted is that when you ask for a lawyer they can still continue until the lawyer arrives. That was not what happened in this case.

    BTW, the court ruled with the LA Supreme Court but told the defendant that he had a different avenue to proceed with for a new trial if he wanted to costing the state another quarter million dollarswhen we already know he is guilty of murder.


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