In a perhaps not-all-that-important decision this morning, the Supreme Court overruled a landmark case involving the Sixth Amendment right to counsel. Although it seems like a big deal, today’s decision doesn’t really seem to change anything. Criminal procedure is not likely to change. The upshot is that the police still can’t initiate questioning after you’ve asserted your right to counsel.
Interestingly, both sides probably saw it as a loss. The government clearly lost, no question about that. Technically, the defendant won, as he got the government’s win reversed and remanded. But the defendant lost in his bid to get the Supreme Court to announce a new rule imposing an indelible right to counsel that attaches automatically at arraignment.
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In Michigan v. Jackson, 475 U.S. 625 (1986), the Burger Court ruled that police cannot start questioning a defendant after that defendant has appeared in court and requested a lawyer. “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.”
This morning, a 5-4 Supreme Court overruled Jackson.
Writing for the majority, Justice Scalia found that the Jackson rule is simply unworkable. And anyway, the existing rule of Edwards v. Arizona, 451 U.S. 477 (1981) already provides the necessary protections, so the Jackson rule is unnecessary in the first place. Scalia summed it up this way:
This case is an exemplar of Justice Jackson’s oft quoted warning that this Court is “forever adding new storeys to the temples of constitutional law, and the temples have a way of collapsing when one storey 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 storey of prophylaxis.
The defense got the reversal it wanted, but not the rule it sought. The defense didn’t want Jackson overruled — it wanted the case to be interpreted as meaning the police can never seek to interrogate a defendant once counsel is assigned, whether the defendant asked for it or not.
Instead, the Court said we already have “three layers of prophylaxis” that protect defendants here, and we don’t need another one. Under the rules of Miranda, Edwards and Minnick, a defendant can tell the police he doesn’t want to speak to them without a lawyer present, and that shuts down any questioning. And the police cannot re-start it later by trying to Mirandize him again in the hopes that this time he waives the right to counsel. These protections already exist without Jackson, so the overruled case “is simply superfluous.”
The overruling wasn’t really a surprise. Sure, the briefs didn’t really talk about it, but it was strongly hinted at during oral argument back in January. More on that in a minute.
The state of Louisiana clearly lost, and its high court got reversed. But the defense didn’t get the outcome it wanted, and the Court isn’t about to make that rule any time soon, now. The defendant does get a second bite at the apple, however — the defense relied understandably on Jackson and not Edwards in its appeal below, so the Court felt it was best to remand and give the defense the chance to argue based on the Edwards rule.
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In today’s case, Montejo v. Louisiana, Jesse Montejo was suspected of the robbery and murder of his former boss. Montejo waived his Miranda rights, and admitted killing the victim during a botched burglary. He indicated that he’d thrown the murder weapon into a lake.
This happened in Louisiana, which requires a preliminary hearing called a “72-hour hearing,” the purpose of which is the appointment of counsel. At that hearing, Montejo was charged with the murder, and the court ordered the appointment of a lawyer. Shortly after the hearing, but before the Indigent Defender was assigned, the police Mirandized Montejo again, and took him out to help them find the murder weapon. During the trip, Montejo wrote a letter of apology to the victim’s widow.
At trial, the letter of apology was admitted into evidence over the defense’s objection. Montejo was convicted and sentenced to death.
Montejo appealed, arguing that Jackson required that the letter be suppressed. The Louisiana Supreme Court said no, the Jackson rule only protects defendants who actually requested a lawyer at the hearing — it doesn’t shield defendants from questioning if, like Montejo, they just stand mute and the court orders the appointment of counsel sua sponte. The court felt that the real issue was whether he’d waived his right to have counsel present during the excursion, and Montejo had done so when he was Mirandized that second time.
Montejo filed for cert, arguing that the right to counsel, guaranteed by the Sixth Amendment, goes into effect upon the appointment of counsel, whether the defendant affirmatively asked for it or not. The other four states which had considered this, as well as the 11th Circuit, had ruled his way. And it made more sense to have a bright-line rule like this than to have a case-by-case analysis to determine whether a defendant said the magic words at arraignment which would grant him the right to counsel. A rule requiring defendants to affirmatively accept the appointment of counsel would simply not be administrable, he argued. One thing the briefs did not request was that Jackson be overruled.
During oral arguments, however, Scalia, Roberts and Alito asked whether the Jackson rule ought to be overruled. They suggested that the rule was overbroad, in that it would not allow defendants to voluntarily waive their Sixth Amendment right to counsel after getting a lawyer.
The state, which had submitted very thin briefs relying largely on dicta, didn’t do well at oral argument. Scalia and Kennedy quickly pointed out the absurdity of requiring “a formality on top of a formality” here, and the state only compounded the absurdity by seeming to suggest that defendants would have to keep requesting counsel every time the police sought to question them after arraignment.
The state also made the classic blunder of arguing with a Justice who had lobbed a softball question, in the attempt to help out the lawyer. Alito and Roberts both offered softballs to get the state to point out that Jackson prevents the police from initiating contact without the presence of counsel, but allows the defendant to initiate discussions. Instead, the state’s lawyer fought them, insisting that Jackson is only supposed to make sure the police don’t “badger” defendants who have a lawyer. The state then made the absurd argument that the Sixth Amendment protections ought to vary from state to state — states that make defendants ask for counsel would have Sixth Amendment protections, but states that appoint counsel whether a defendant asked for it or not would not have Sixth Amendment protections.
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Given what happened at oral argument, today’s decision is hardly suprising. Writing for the majority, Scalia said “we agree that the approach taken [by the Louisiana Supreme Court] would lead either to an unworkable standard, or to arbitrary and anomalous distinctions between defendants in different States. Neither would be acceptable.”
Louisiana’s distinction between defendants who assert their right to counsel and those who do not “is extremely hazy when applied to States that appoint counsel absent request from the defendant. . . . How does one affirmatively accept counsel appointed by court order?”
Requiring some sort of questioning at every preliminary hearing would be impractical. Those hearings are typically rushed, aren’t even transcribed in many states, and it would be unworkable to try to monitor each defendant’s reaction to the appointment of counsel, if the defendant is even present (which isn’t always the case). Furthermore, how would the police be expected to know what the defendant’s reaction had been, as they can’t be expected to attend these proceedings. Courts would then have to adjudicate whether the police ought to have been able to approach a defendant, which simply adds to the impossibility. So this solution just could not work.
However, even though the Louisiana Supreme Court’s application of Jackson “is unsound as a practical matter,” Scalia couldn’t go along with Montejo’s proposed rule that, once a defendant is represented by counsel, police would not be allowed to initiate any further interrogation. “Such a rule would be entirely untethered from the original rationale of Jackson.”
What Jackson did was to apply the rule of Edwards v. Arizona, 451 U.S. 477 (1981) to the Sixth Amendment. (Edwards involved a defendant who asked for a lawyer when he was Mirandized, so the police stopped questioning, but then the police tried to Mirandize him again, and this time the defendant confessed. The Edwards rule says the police can’t badger the defendant into waiving his rights after he’s asserted them.) All together, the cases mean that if a defendant asserts his right to counsel, and he later waives that right in a subsequent interaction with the police, then that waiver is presumed to be involuntary.
In a situation like Montejo’s, where the defendant was appointed counsel without ever asking for it, this rule simply doesn’t apply. There was no initial assertion of the right to counsel, so there can be no presumption that a subsequent waiver is involuntary. There is no initial decision that is being changed. There is no indication that the police are overriding the defendant’s free will.
So Montejo’s proposed rule just doesn’t fit with the purpose of the existing law. Instead, it “would prevent police-initiated interrogation entirely once the Sixth Amendment right attaches, at least in those States that appoint counsel promptly without request from the Defendant.”
Instead, wrote Scalia, the existing law we already have under Miranda, Edwards and Minnick is sufficient:
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 warnings. 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 presence” 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.
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SO WHAT DOES THIS MEAN?
Here’s a comparison of how the law looked yesterday, and how it looks today:
The right to counsel is triggered…
Yesterday — when you’ve been formally charged, are being interrogated, and now invoke your right to counsel.
Today — when you’ve been formally charged, are being interrogated, and now invoke your right to counsel.
If you invoke your right to counsel…
Yesterday — further discussions are per se excluded, unless you initiate the new contact (Jackson).
Today — further discussions are per se excluded, unless you initiate the new contact (Miranda-Edwards-Minnick).