Today, the SCOTUS overruled Michigan v. Jackson (prohibiting interrogation of a defendant who invoked right to counsel at arraignment). The Court said, "What matters for Miranda and Edwards is what happens when the defendant is approached for interrogation, and (if he consents) what happens during the interrogation -- not what happened at any preliminary hearing."

This means that the problem created by the recent Rothgery case (magistration seeming to trigger automatic protection under Sixth Amendment Right to Counsel) is resolved. Police are free to approach for custodial interrogation a defendant who has been arrested and appeared before a magistrate at the jail, even if counsel was appointed, so long as officers first read Miranda warnings and get a waiver of counsel as they must do under standard Miranda rules.

To read the opinion, click here

This is a major victory for law enforcement. The opinion clearly decided that the Jackson prophylactic rule was too harsh, as it resulted in the suppression of otherwise voluntary confessions for a purpose that was already sufficiently protected by application of Miranda rules. In other words, a majority of SCOTUS gave greater weight to the public's right to have law enforcement pursue confessions (and thereby resolve criminal cases effectively) than an overly protective rule.

[This message was edited by JB on 05-26-09 at .]

Am I reading this wrong or does this only change things in states where an attorney is appointed automatically without any request from the defendant?

It is my understanding that in Texas the defendant makes an affirmative request for appointed counsel in the 15.17 (Rothgery) hearing so, if I am reading this correctly, this decision doesn't change our processes.

Alex, I made that mistake when I was first reading through it. I found this decision a little hard to parse through. But that was actually the holding of the Loiusiana Supreme Court. SCOTUS upheld the result but not the rationale.

Basically, Montejo seems to recognize the basic premise that saying "I want a lawyer at trial" is NOT the same thing as "I want a lawyer before I'll talk to the police." As long as a subject is properly warned and waives his rights, the police can talk to him, even if he's requested a lawyer at arraignment. I'll need to reread this more to see how it gells with the Rothgery problems, but I agree with JB that it seems to resolve much of the headache there.

The Court said, "What matters for Miranda and Edwards is what happens when the defendant is approached for interrogation, and (if he consents) what happens during the interrogation -- not what happened at any preliminary hearing."

True, the Lousisiana case didn't involve appointment of counsel at the request of a defendant. But, Scalia makes it very clear that a rule dependent on that distinction would have different outcomes in different states as to the admissibility of a confession. That is an unfair, inconsistent rule.

So, the court examined the personal nature of the right to counsel and focused on the most consistent question to ask in ALL states: whether the defendant, when faced with custodial interrogation, invoked his right to counsel after hearing Miranda warnings.

An important acknowledgement that, nationally, not everything is black and white. Procedures are simply not the same in every state, and we should not all be painted with the same brush.



JAS

Interesting that the Court didn't even mention or discuss Rothgery. But it sure makes that case easier to accept and incorporate into training for police officers.

Tangentially interesting: The logic in explaining why they are overturning Michigan v. Jackson shows that Scalia is willing to accept a relatively high level of results-based judicial activism.

Scalia is a tactician as well as constitutional originalist.

Kind of seems to vindicate Keller's position in Pecina v. State. She seemed to stake out ground similar to that described by AndreaW above.

So the police may initiate questioning when even though the suspect has requested an attorney unless the suspect either (1) requested an attorney to be present during questioning or (2) previously asserted his right to remain silent. Attempts to initiate questioning after either of those are may still be "badgering" but that will be determined by on a case-by-case basis instead of with a bright-line rule.

Just because a suspect wants a lawyer doesn't automatically mean he can't also waive the right to have the lawyer present during questioning.

Is that close?

Welcome to the TDCAA Bulletin Boards. The discussions in these user forums are for the benefit of prosecutors and their staff members, although we welcome relevant and appropriate input from other members of the criminal justice and government lawyer community. These forums are NOT a source of legal advice for citizens. Call the State Bar of Texas (1-800-204-2222) for information on seeking legal advice.

"The Supreme Court has overturned a long-standing ruling that stops police from initiating questions unless a defendant's lawyer is present, a move that will make it easier for prosecutors to interrogate suspects."

Details.

[Dang, that Scalia is amazing. Did he know he was making it easier for "prosecutors" to get confessions? As usual, the media has done some deep thinking on this one.]

Even the Washington Post posted the above AP version of the story (click here). Does anyone proofread this stuff anymore?

[This message was edited by JB on 05-26-09 at .]

I guess the headlines could have read "Supreme Court creates police state" or "Suspects' rights slashed."

It is wonderful to have some balance restored so that law enforcement can now pursue the unmitigated good of obtaining uncoerced confessions.

JAS

[This message was edited by JAS on 05-26-09 at .]

quote:

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Originally posted by JB:
"The Supreme Court has overturned a long-standing ruling that stops police from initiating questions unless a defendant's lawyer is present, a move that will make it easier for _prosecutors_ to interrogate suspects."

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What's the problem? That's how it always happens on Law & Order, the primary source of most reporters' legal knowledge.

So here is a question that's come up among lawyers and officers from other states on a listserve I'm on.

Near as I can tell, it looks like SCOTUS has said that the police can initiate contact with and take a run at talking to a suspect/defendant, even if he is represented by counsel, so long as he clearly and unequivocally waives his right to silence and counsel. Right?

I, probably like everyone else on this board, get asked pretty regularly by officers to weigh in on whether they can take a run at interviewing a suspect/defendant. And if the guy is known to be represented, the standard answer is, of course, that he's absolutely off limits (unless he should happen to initiate the contact himself, but that's a whole 'nuther issue). Now, under Jackson, it seems that the standard answer must change.

But, here's where it seems to get tricky:

Disciplinary Rule 4.02 says that we cannot communicate or cause or encourage another to communicate with a person we know to be represented by counsel about the subject of that representation unless it is consented to by the representing lawyer or is "authorized by law"....

So how does that factor in? It seems to me that if we advise an officer that it's now ok to take that run at that suspect that we know is represented, we might just be running afoul of 4.02, or does the "authorized by law" language kick in and permit it?

So if an officer approaches us for advise, would our safest bet just be to tell them that we cannot advise them what to do but direct them to Jackson?
Calling Chip, the Ethics Guru!

With the change by SCOTUS, the contact is now authorized by law. The constitution and SCOTUS opinons are certainly the law, even in Texas, which is still part of the Union.

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

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

That was my thought too, but I figured I'd throw it out there -- there's a fairly high degree of concern about it amongst the other discussion group.

Ahh, they are just disappointed.

You're always such a bomb thrower.

I agree, they are probably all disappointed. However, all snark aside, that disappointment could translate into using the ethics rules to challenge the behavior, particularly because Scalia was nice enough to point it out in the opinion. His statement that ethics rules don't make police officers into lawyers does suggest to me that he's not only not considering ethics implications, but also that he's not considering the situation where police officers acting at the behest of prosecutors. Because the ethics rules cover all kinds of things not covered in the law, I'd certainly be very leary of telling an officer in a specific case to question a suspect that he knows is represented by counsel. (Which kind of raises the question of whether Brewer and Holloway are still good law. Does Burbine now apply to the Sixth Amendment?)

I also think you also have to be mindful of ethical considerations too when you instruct law enforcement generally about the law in training seminars and such because the way that rule would play out in that type of circumstances is a lot more gray, but also a lot more attenuated. And of course, that doesn't mean you don't discuss the case with them at all.

But like Lisa, I'd really like to hear what Chip thinks.

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

I think we can all agree that the new SCOTUS case does authorize an officer to contact a suspect who may or may not have been appointed an attorney, so long as the officer complies with the Miranda Rule. The Miranda Rule reminds the defendant of his ability to exercise his privilege against self-incrimination and gives him an opportunity to invoke or waive it. That, in short, is the current state of the "law" as it applies to contacting a suspect.

And, without any hesitation from the defense bar, such "law" is frequently invoked when it assists in the suppression of evidence. The constitutional exclusionary rule obviously relies upon SCOTUS opinions as a form of law. And, not surprisingly, the Texas statutory exclusionary rule applies to any violation of various federal or state "laws". Those laws have always included constitutional rules and statutes.

Interestingly, the CCA has clearly held that "laws" does NOT include rules and regulations such as those promulgated by state agencies, including the State Bar disciplinary rules. See Pannel, 666 SW2d 96. So, even if a violation were established, it would NOT result in suppression of evidence.

Furthermore, it would be rather odd to consider every statute and state case opinion a "law" and exclude a SCOTUS opinion as "law." Last time I checked, SCOTUS was the supreme law of the land.

In addition, a State Prosecuting Attorney has made the additional argument that prosecutors have the duty under law to investigate criminal cases, adding yet another "law" that justifies contacting or advising an officer to contact a suspect in a criminal case. See footnote 2 in Heinrich, 694 SW2d 341. That argument was left unaddressed as it was not necessary to the decision of the case.

And none of this is any different from what we faced in Burbine. In that case, defense attorneys wanted to argue that they could independently assert a defendant's personal privilege against self-incrimination. Again, the SCOTUS held that the lawyer couldn't do it on behalf of the defendant. The suspect had to invoke the right by himself. So, a letter faxed to the police station did not prevent an officer from talking to a suspect. Indeed, a complaint from the suspects mother, priest or wife would not trigger constitutional problems.

And prosecutors have been teaching officers how to apply that SCOTUS opinion for some time now without ethical conflict. This new case is no different. It establishes a clear rule on how the defendant's 6th Amendment Right to Counsel is to be addressed during custodial interrogation. It matches the rule with the same rule we have all been using for the defendant's 5th Amendment Right to Counsel.

Frankly, Scalia hit upon something even more important. He asserted that confessions are an important part of the criminal justice system and that society had a strong interest in the lawful pursuit of confessions. Prosecutors, who are being told more and more that they have the duty to train and assist law enforcement, likewise have a strong interest in law enforcement obtaining lawful confessions.

Some in society, however, would have us all believe there is something dirty about getting a confession. To the contrary, a proper confession is a powerful tool of investigation. We should not be afraid to teach that lesson.