Posts Tagged ‘right to counsel’

Extending the Right to Counsel?

Thursday, March 3rd, 2016

In the “class participation” section of my comic, commenter G. T. Bogosian this morning asked:

Why does the supreme court keep guaranteeing that we have a right to counsel, but only in situations that almost never come up in real life? Is there some guiding constitutional interpretive philosophy that explains all or most of this? Or does the supreme court just really want to sound like they are pro-defendants’ rights without actually jeopardizing law-enforcement?

To which I hastily replied over my morning coffee:

They just haven’t extended the rule far enough yet.

Originally, the right-to-counsel clause of the Sixth Amendment was intended to allow you have a defense attorney. It was a reaction to the English rule prohibiting defense counsel.

The English prohibition started out as a well-intentioned policy. Originally, criminal trials didn’t involve lawyers on either side. The victim or his family presented their case, and the defendant defended himself. A criminal trial was a “battle of amateurs,” and so judges would strictly enforce the prohibition on defense counsel to be fair. Lawyers were also seen as an impediment, preventing the court from getting all the evidence it could have heard.

But by the time of the American Revolution, the rule had become unfair. Defendants had to deal with the intricacies of procedure, complexities of law, and now the government was using lawyers to prosecute cases. The Sixth Amendment was meant to fix that unfairness.

But the focus then was only on the trial itself. The framers of the Bill of Rights were really only thinking about trial. The Amendment’s rights apply “in all criminal prosecutions,” and at the time, that meant “at trial.”

Over time, however, prosecutions got longer, and more procedures came to be seen as being part of the case. Defendants had to face professional lawyer adversaries earlier and earlier, and confront witnesses at pretrial and preliminary hearings. The Supreme Court responded by extending the right to counsel, letting it take effect sooner.

The rule became that the right to counsel “attaches” at all “critical stages” of a prosecution before trial.

And that’s what the Court was thinking when it talked about interrogations and lineups. The Court was trying to be expansive, to say these investigative procedures were in fact “critical stages” of a prosecution, requiring the assistance of counsel.

But the right is still only about “criminal prosecutions.” And there is no prosecution until the defendant has been formally charged. A prosecution does not begin with a police investigation. A prosecution does not begin with an arrest. It begins with arraignment in court on a complaint, an indictment by a grand jury, and similar court procedures formally accusing the defendant of a crime.

It would be a leap of language — but not of logic — to extend the rule of the Sixth Amendment sooner, to extend it to police investigations. Remember, police weren’t a thing when the Sixth Amendment was written. They have since become an important part of the government’s prosecution of a case. The Court already recognizes that the investigative stage is a critical stage of the prosecution; it just hasn’t recognized that the investigative stage precedes the filing of an accusatory instrument.

Right now, however, that is where they’ve drawn the line. They’ve adhered to the words of the Amendment rather than the principle they’ve recognized. And this rule has become “well-settled” by the passage of time.

So the short answer to your question is they’re trying to protect defendants, but haven’t yet seen that to do that they need to extend the meaning of “criminal prosecution” to include police investigations.

It’s not impossible. They did that with self-incrimination, as we saw in the previous chapter, extending the right to pre-prosecution interrogations. Nevertheless, challenge to get the Court to extend the right to counsel meaningfully would have to overcome the inertia of stare decisis, would have to present a powerfully principled argument, and would have to rigorously unknot the Court’s perpetual confusion over what to do about police given (also covered in the previous chapter) that the law never contemplated the roles that police have taken on.

But now it’s later in the morning, I’m at work, having a coffee break, and I’m pondering a couple of things. My thoughts are disjointed, and perhaps writing them down will bring clarity.

We’ve already extended the right to counsel beyond the charging instrument to the police investigation, in the self-incrimination context. Is there really much of an obstacle to applying the same reasoning to other contexts where the Court recognizes the need for counsel’s protection? Would a rule like Miranda work in something like eyewitness identifications?

I don’t think it’s that much of a stretch. Yes, there are very different policies in play, but as a practical matter the rule would seem to work.

 

With self-incrimination, the policy is to prevent the government from forcing you to give evidence against yourself. There’s a waiveable right to counsel at a custodial interrogation in the hopes of ensuring that self-incrimination is voluntary. (That’s not how it works, but that’s not the point.)

With identifications, however, the policy is to prevent the government from interfering with a witness’s memory. Not overcoming your free will, but tampering with the evidence. Would a waiveable right to counsel insure against such tampering?

The Court has already recognized the need for counsel at post-indictment lineups and showups, to ensure minimal messing with minds. So it seems easy to extend that protection pre-indictment. (It hasn’t been extended to photo arrays, though, which can be just as dangerous and are much more common. But let’s just pretend those are included, for the sake of argument, and because I can dream, can’t I?)

But when would it attach? At first glance, the “custody” requirement of Miranda doesn’t make sense here. Custody is important to Miranda because it implies compulsion. But compulsion isn’t an issue in IDs.

Still, it couldn’t attach at the outset of a police investigation. Even though that’s arguably when the police can do the most damage to witness memory, by careless questioning and suggestion. Because there’s no suspect yet. Who’s the defense lawyer defending? Plus requiring a lawyer to be looking over the cop’s shoulder during the preliminary stages would be time-consuming, wasteful, and a serious impediment to collecting evidence.

Arrest, on the other hand, is too late. Often, the arrest isn’t made until after the ID procedure we’re trying to protect.

So on second thought, custody seems to be a meaningful bright line to draw. It’s already understood by police and counsel, for one thing. But it’s a workable line between when a lawyer is useful or not. Once the suspect is in custody, there’s someone whose rights can be defended. The preliminary stages of the investigation are over, so a lawyer is less of an impediment.

As showups usually require custody, they would have to wait until counsel could be obtained, unless counsel was waived. That could be a problem. Most showups are quick-and-dirty “did we get the right guy” scenarios shortly after the crime. Requiring counsel would require a lot of delay. In a drive-by ID, I reckon counsel would have to be in the car with the witness and the detective, to make sure nothing too suggestive was said, and that could be physically difficult to arrange. The logistics aren’t insurmountable, but they’re awkward.

But lineups and photo arrays are easy. While the detectives are setting everything up, they bring in the lawyer as well. Logistically not a problem. And even in showups, the lawyer isn’t an impediment. Police actually do want to do these things right, and a lawyer’s role would be to ensure that they do.

If the right’s waiveable, what would the warnings look like? “An eyewitness is going to look at you, to tell us if they recognize you as the person who committed a crime. You have the right to have an attorney present during this procedure. If you cannot afford to hire an attorney, one will be appointed to represent you. Do you wish to have an attorney present at this time?” Again, awkward. But not terribly so.

Would it even be waived? This isn’t like confessions, where suspects often want to tell their story, and will gladly waive their rights in order to do so. A suspect has nothing to gain from waiving here, so I imagine few rational suspects would say “nah, go ahead, I don’t need a lawyer for this.”

As a practical matter, I don’t see it being waived all that often. So a defense lawyer would be required at most ID procedures. In interrogations, invoking the right to counsel simply means “no interrogation.” They don’t go round up a lawyer. Would a right to counsel in identifications essentially mean “no identifications?” I don’t see any court agreeing to that, if that’s the case.

And yet, with both interrogations and identifications, the courts have recognized the great potential for injustice, and have stated that a lawyer’s protection is the remedy. And perhaps the risk of losing identifications isn’t that high. It’s not as if the police would decline to conduct ID procedures just because a lawyer would be watching. It’s not the same as interrogations, where any lawyer would simply advise her client not to answer any questions. Here, a lawyer would only be watching to make sure the police did their job right. It’s a very different dynamic. I imagine that it wouldn’t reduce the number of ID procedures meaningfully.

So to answer my own questions, I’m starting to convince myself that a rule analogous to Miranda might actually work in the ID world. Once a suspect is in custody, he has a waiveable right to an attorney at any ID procedure. It seems doable, and consistent with the way our law’s been trending over the past 75 years or so.

Welp, coffee break’s over. I’m done rambling. It’s been fun, but back to work.

New 14-Day Rule in Miranda-Edwards Cases

Wednesday, February 24th, 2010

 

The Supreme Court heard a very important argument this week in the case of Maryland v. Shatzer. It was one of those situations where the oral argument makes a huge difference in the outcome of the case. We read the briefs earlier this month, and remarked to colleagues that both sides’ arguments seemed eminently reasonable. So reasonable that we couldn’t form a strong opinion either way.

But the oral arguments convinced us thoroughly: Both sides are stupid.

So we wrote back on October 8, when this case was argued. This morning, the Supreme Court issued its decision.

While Shatzer was in prison on another conviction, allegations arose that he’d molested his son. A detective went to the prison to interrogate him. Shatzer invoked his Miranda right to counsel, and the detective ended the interrogation and left. Shatzer went back into general population, and the investigation was closed. Three years later, another detective began investigating again, went to the prison to interrogate Shatzer, and this time Shatzer waived his Miranda rights and incriminated himself. The Maryland Court of Appeals said his statements should have been suppressed, because there was no break in custody between his invocation of his right to counsel and his subsequent interrogation, because he’d stayed in prison the whole time.

At oral argument, Maryland proposed an idiotic rule that any break in custody, no matter how short, would end the Edwards presumption that the invoked rights were still invoked. That would just allow catch-and-release until the suspect broke down and waived his rights.

Shatzer’s position was even more idiotic — that invoking the right to counsel in one case now, counts as an invocation of the right to counsel in all future cases he may ever have, even in other jurisdictions decades later.

We suggested a simple rule:

1) If a suspect was in custody, was read his Miranda rights, and invoked his Fifth Amendment right to have a lawyer present during questioning…

2) And if there was a break in custody, so that an objectively reasonable person would have felt free to leave his questioners…

3) Then there is a rebuttable presumption that his invoked right to counsel continues to be invoked with respect to any subsequent questioning about the same underlying allegations.

4) The state can rebut this presumption with facts that demonstrate, by clear and convincing evidence, that the suspect no longer desired the presence of counsel during questioning. (This will necessarily be extremely rare, though not at all inconceivable.)

The rule could be streamlined even further, by deleting the phrase “there is a rebuttable presumption that” from #3, and deleting #4 altogether.
This rule provides all the protections that defendants, law enforcement and the courts require. At the same time, it avoids the absurdities of the existing bright-line rule, and of the more extreme bright-line rules proposed by the parties in this case

In today’s decision, the Supreme Court agreed with us that the positions taken by both sides are absurd. But they didn’t impose a new rule. Instead, they merely focused on what counts as “uninterrupted Miranda custody” for the purposes of Edwards.

First, the Court imposed a bright-line rule, in the hopes of preventing catch-and-release tactics. They said that, once a person has been released from police custody, a period of 14 days must elapse before he can be said to have waived his Miranda rights voluntarily. So if a suspect invokes his rights, ending the interrogation, and he is released from custody, he cannot be interrogated again for 14 days. Once that fortnight has passed, the Court felt that enough time had passed for the suspect to shake off the coercive effects of custody and get back to normal life.

That’s a bright-line rule, and so that’s going to create injustices on either side of the line for suspects who are more or less able to shake off the coercive effects of custody. Which can be truly traumatizing.

The Court has always liked bright-line rules for police conduct, of course, because it leaves less room for police judgment or discretion, which makes it easier for the police to know what they’re allowed to do. The thinking goes that the less gray area there is, the less likely police will be to cross the line, and the more likely individuals will not have their rights violated. That may be true so far as it goes, but only at the cost of new injustice for those whose individual circumstances would move the line. What’s reasonable for me may not be reasonable for you.

Scalia tries to avoid this interpretation by reassuring us that (more…)

Defense Wins by Losing: Supreme Court Overrules Michigan v. Jackson

Tuesday, May 26th, 2009

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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.

* * * * *

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.

* * * * *

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.

* * * * *

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.

* * * * *

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).