Supreme Court overturns rule on right to counsel

Supreme Court overturns rule on right to counsel May 30, 2009

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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