Day: June 22, 2009

On May 26, 2009, the Supreme Court handed down another important decision pertaining to Constitutional procedure.Almost everyone is familiar with “Miranda” rights. These are the warnings that police give suspects upon arrest. They are derived from the Supreme Court’s decision in Arizona v. Miranda, in which the Supreme Court held that suspects are entitled to know that they have a right to have the assistance of a lawyer before they are subjected to interrogation. A closely related decision is Edwards v. Arizona, in which the Supreme Court held that if a suspect requests the assistance of a lawyer while being interrogated, no further interrogation may occur until a lawyer has been made available. Following Edwards v. Arizona the Supreme Court’s decided Michigan v. Jackson, in which the Supreme Court held that if a defendant requests that the court appoint him a lawyer at his initial court appearance, then law enforcement may not initiate any further interrogation.?In Montejo v. Louisiana, the defendant did not actually request that a lawyer be appointed but stood passively in court while a lawyer was appointed. Shortly thereafter, law enforcement approached him again in jail. After having been advised one more time that he had the right to have his lawyer present, he incriminated himself in relation to a murder that ultimately resulted in him receiving the death penalty. The Louisiana Supreme Court held that Michigan v. Jackson did not apply because Montejo did not specifically request a lawyer, but merely accepted the appointment of a lawyer passively. Because Jackson v. Michigan did not apply the Louisiana Supreme Court reasoned, Montejo could, and did, voluntarily waive his right to have counsel present during the interrogation.The U.S. Supreme Court agreed to hear the case. The Supreme Court was concerned about extending Michigan v. Jackson to Montejo’ situation, because Montejo had never actively sought the intervention of a lawyer. The Supreme Court believed that the rational in Jackson was that when a defendant asks for the assistance of a lawyer, a presumption is created that he does not want to be subjected to further interrogation without the assitance of that lawyer. The Supreme Court did not think the presumption made sense when the defendant automatically is appointed a lawyer such as in Montejo’s case. On the other hand, the Supreme Court was concerned that in states where the defendant has to affirmatively do something in order to be appointed a lawyer, the defendant is entitled to more constitutional protection than in those states where no such request need be made in order to have a lawyer appointed. The Supreme Court decided, in a five to four decision, that the best solution was to overrule Jackson v. Michigan. Thus, whether a state automatically appoints the defendant a lawyer, or whether the defendant has to actually request the appointment of a lawyer, the appointment of a lawyer to the defendant does not create a presumption that incriminating statements made after the appointment of a lawyer, and outside the presence of that lawyer, were involuntarily made.The ramifications of this case are probably limited to cases in which the defendant has been appointed a lawyer rather than retained a lawyer. If the defendant has hired a lawyer, the courts should still presume to be involuntary any subsequent waivers of the right to counsel made pursuant to contact that was initiated by law enforcement. Where the court appoints the defendant a lawyer, however, law enforcement will now attempt to contact the defendant after the appointment of the lawyer, outside the presence of the lawyer, and hope that the defendant waives his right to have counsel present and then incriminate himself. All court appointed counsel should do their utmost to insure that their clients understand the importance of continuing to invoke their right to remain silent when law enforcement officers come to interrogate them outside the presence of their attorneys. On every court appointed case, counsel would be advised to send a letter to law enforcement advising them of their client’s wish to remain silent.

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