But I also think there is a danger in overreading the opinion. This case dealt with a defendant who did not even request counsel at his 72-hour hearing. An attorney was appointed, but there's no indication that the defendant had spoken with him or even knew that he'd been appointed. The Supreme Court held that we won't presume that his Sixth Amendment waiver of counsel was involuntary just because counsel had been appointed at arraignment. That's it. The case doesn't even say that the waiver in Montejo was valid, it remands for the state courts to make that determination.

Will it be held valid? Probably. But we don't know what effect a police officer's representations about the status of that representation will have on that waiver. There are also cases that have invalidated the Sixth Amendment waiver where police knowingly interfered with an existing attorney-client relationship. This case didn't reach those. Will it? Again, probably.

True, there is all sorts of language to suggest where this holding should lead. But we are also getting ready for a change in the make-up of the court. Can I have confidence that the swing vote won't be persuaded to keep this case from toppling Brewer, applying Burbine to the Sixth Amendment, or somehow factoring the request for counsel at arraignment into the question of whether the waiver was voluntary and valid? I don't know. I should feel confident, but Kennedy's dissent (joining Alito) demonstrated a devotion to power politics rather that gives me pause. And don't even get me started on Kennedy v. Louisiana.

My concern about the interplay with this case and the ethical rule isn't about whether the evidence comes in or not. I don't think the defense bar could turn around and say (assuming this is even an ethical violation) that the evidence should be suppressed based on that ethical violation. Rather, I anticipate the use of a claimed ethical violation to chill prosecutor behavior. And maybe I'm falling for that tactic. I don't know.

Where I'm caught is the place all lawyers get caught. Do I moderate my behavior to focus on winning a grievance, or do I try to avoid it all together? Ethics are aspirational, and it's the areas we think are black and white that always end up being kind of gray. That's why I'm generally much more cautious, maybe even unreasonably so, about such things. I am very pleased about Scalia's push for recognizing the importance of gathering evidence, the validity of confessions, and holding defendant's responsible for their own choices. Indeed, there's nothing dirty about obtaining a confession, and it's refreshing to see that idea championed by the Supreme Court. That's definitely not a lesson I would fail to teach.

But I don't think it's unreasonable to express concern about the propriety of telling officers they can go ahead talk to a defendant even though they know he's requested counsel and established an attorney-client relationship. I also don't think it's unreasonable to question the propriety of teaching officers that they no longer need to check to see if the defendant is represented before questioning him. Finally, I don't think it's unreasonable to remind officers of the cases that have surpressed confessions after officers interacted with a defendant they know is represented have not been overruled. Yet. But that's just me, speaking for myself.

This opinion is a great opinion, but it's also complicated. Consequently, I don't think that ethical concerns (which are usually even more complicated) can be easily shrugged off. That is why I'm very grateful that you took the time to explain your thought process. I particularly like your argument regarding Burbine and teaching Miranda. I may find myself relying upon it in the future, and I certainly learned a lot from reading it.

I teach a lot on the subject of confessions. And I find that the constant litigation of confession issues and the resulting creation of layers upon layers of rules has unfortunately caused law enforcement to believe that there is something inherently immoral about investigating a case through an interview of the defendant. This has been the myth of Miranda.

And that dirty feeling has been extended to prosecutors, who advise law enforcement. David, your comments, I think reflect some of that myth-making.

Forgotten in all of this is that the defendant is personally responsible for his decision to talk to police. He can ask for assistance in that decision -- that's the original point of the right to counsel. But, only the defendant can ask for that assistance. So long as the choice to talk is voluntary, what constitutional harm has occurred?

A defendant who has been appointed an attorney, particularly if he has received that appointment after an express request before a magistrate, still gets to make a choice about whether to talk to police with or without that lawyer.

True, the examination of a post-appointment waiver of Miranda may involve some new challenges regarding the clarity of the waiver, but the standard is still whether or not a waiver occurred.

For me, here is the more interesting result: the Montejo decision is likely to make it more and more obvious that court-appointed lawyers sometimes fail to go see their clients in a timely manner. How many times have you heard a defendant complain to the judge on the second, third and fourth setting that his lawyer hasn't been to visit him?

I have no doubt that defense attorneys and bloggers will attack these comments as blasphemous. The internet has made it easy to attack a point of view in a manner that would not be tolerated in court or in face-to-face conversation or debate. Often, such attacks against prosecutors quickly escalate into threats of grievances or leaks to the media. But, if we are to retain the freedoms that attorneys so readily invoke for their clients, including the First Amendment right to free speech, we should not hesitate to present our opinions.

After all, if a prosecutor had been so audacious as to argue before Montejo that a defendant could waive his Sixth Amendment Right to Counsel after magistration, he no doubt would have been accused of committing constitutional suicide. And, on that note, you might want to go back and re-read CCA Presiding Judge Keller's dissent in Pecina v. State.

Thanks for the comments, David. It has been fun to kick this around. My mind remains open to seeing how all of this plays out, but it does help to express some opinions and see how they are received. Now the judges get to figure it all out.
[This message was edited by JB on 05-30-09 at .]

[This message was edited by JB on 05-30-09 at .]

[This message was edited by JB on 05-30-09 at .]

quote:

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Originally posted by JB:
David, your comments, I think reflect some of that myth-making.

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Well, I prefer to think of myself as more of a dream weaver, but since I'm a big George Lucas fan, I guess I'll go with that.

Now that's more like the David Newell I have come to know.

quote:
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Originally posted by JB:

Ahh, they are just disappointed.
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Just for the record, the group to which I referred to start this whole ethics vs. opinion discussion did not involve any sort of breakfast cereal, defense attorney, or other type of prosecutor opposition -- just a bunch of cops and prosecutors from across the nation who voiced a concern that I found to be worth considering.

Thanks for the clarification and bringing the topic up in the first place.

Thinking about Lisa's comments re: advising law enforcement officers whether or not to interview represented defendants. Having only briefly read the opinion, I think there are some serious potential ethical issues. For example, in a case where there is a written order appointing counsel, and the prosecutor gets a copy of the order, it looks to me like the prosecutor can instruct their investigator to get down to the jail ASAP (in an attempt to get there before the appointed attorney), and interview the defendant whom the prosecutor knows to be represented - under Montejo - but I would NOT want to explain to a disciplinary committee why I thought that was okay. True, Lisa's comments were more directed to advising "law enforcement" but DA investigators would, at least under my reading of the opinion, be treated the same. I am all for seeking proper confessions in a proper manner, I just don't know that seeking to avoid communicating with a suspect/defendant that you know to be represented by counsel through that attorney by doing an end-run around "which" constitutional right to counsel has been invoked is the best way to do that. My 2 cents.

Montejo establishes that even the 6th Amendment Right to Counsel is a personal right of the defendant that must be personally invoked following delivery of Miranda warnings by an investigator, even if the defendant earlier was appointed an attorney. The SCOTUS says that courts will no longer indulge in the presumption that a request for appointment of counsel communicates to an officer that the defendant wishes to have counsel present during custodial interrogation. The officer, after all, may not even be aware of the appointment of counsel.

If a prosecutor is aware of the appointment of counsel, Rule 4.02(a) may well come into play should that prosecutor be asked by an officer whether he/she can go to the jail and talk to the defendant. But consideration should be given as to whether the provisions of article 38.22 (confession statute), the duties of a prosecutor (to investigate crimes) and the Montejo decision itself are laws authorizing a prosecutor to educate a police officer on the process for contacting a represented defendant and determining whether that defendant wants to invoke his right to counsel for the purpose of the interrogation.

For years, prosecutors have educated law enforcement that a defendant may initiate contact with police, even if the defendant is represented by counsel. How is that different?

It's also interesting that the SCOTUS recently addressed a case in which prosecutors were sued for allegedly failing to train. Someone has to educate officers about Montejo. Surely there is no ethical violation for training officers on the latest SCOTUS case law on Miranda rights.

Scalia expends a fair amount of ink reiterating that the existing protections against "badgering" remain in place even though Michigan v. Jackson is being overturned.

So I think now the trial courts, when considering whether evidence was obtained in violation of the sixth, will no longer consider a previous request for an attorney to automatically trump a subsequent waiver of the implied right to have an attorney present during questioning, but the effectiveness of the waiver remains subject to allegations of badgering. I think thats what Scalia says.

I agree. And courts may well apply strict scrutiny to a waiver that follows appointment of counsel, but the defendant still may waive that right to counsel for the limited purpose of facing interrogation.

Moi aussi, mon ami. I read the opinon to say that if a police officer approaches a defendant who has been appointed counsel (regardless of whether the defendant requested it) at arraignment, a valid Miranda waiver should also validly waive the defendant's Sixth Amendment right to counsel. That is, of course, barring the defendant's invocation of the right to the police or potential misrepresentations to the defendant about the status of appointment.

If I merely explain the law to an inquiring officer, am I causing or encouraging him to contact someone? I think not. If I call the officer and say, hey go talk to this guy I know to have counsel, that is wrong. If the officer calls me for advice on a situation like this, all I can do is say the law, not advise him to do it, suggest questions, whatever. Right?

[This message was edited by JohnR on 06-01-09 at .]

Yeah, I see what you mean. My concern would be prefacing the legal explanation with "I'm not telling you to do this." I mean, I guess that's okay, the comments say I don't have to discourage that communication. But saying to an officer "I'm not telling you to do this, but here's the law" seems like it could be interpreted as me trying to get around the rule even if I'm not.

JohnR, you state it the way I see it. Also, as I think JB observed, I wonder if the ethical concerns aren't overstated given that the SCOTUS no doubt was aware of the ethical implications of its opinion. The majority or, if not it, the strong dissent certainly could have made much of the ethics.
Why can't the ethical rules now be tempered in light of this opinion? The SCOTUS ratcheted down its position, let the Bars follow suit. (I would assume the original ethical rules were drawn up in light of existing SCOTUS precedent and that has now changed).
Meanwhile, I think some caution is required in the level of advice we give until a state appellate court, AG, or the state bar wants to offer more guidance.

JAS

I do have to say that I took a lot of pleasure in Scalia basically giving the ABA the finger in the opinion.

I think it is proper for a prosecutor to update the police generally and tell them that a new court decision allows them to speak with a defendant in custody even if they have an attorney. It might be a different question, for disciplinary purposes, if the prosecutor made a specific request of a police officer to go visit a specific defendant known to be represented.

Decided today.

Hughen v. State

The SCOTUS will clarify two issues regarding custodial interrogation and the Fifth Amendment in Maryland v. Shatzer, No. 08-680 and Florida v. Powell, No. 08-1175. In Shatzer, the Court will determine whether a suspect�s initial invocation of his right to counsel effectively bars the commencement of custodial interrogation two and a half years later. Powell presents the issue of whether under Miranda v. Arizona investigators must explicitly advise a suspect that he has the right to have counsel present during custodial interrogation, as opposed to only notifying a suspect that he has the right to speak to counsel before answering questions while in custody.

JAS