Some significant Supreme Court decisions seem to fly under the radar. The Court’s May 26, 2009 decision in Montejo v. Louisiana is, I think, one of these. It was a typical 5-4 vote with Kennedy siding with the Court’s 4 radical conservatives: Scalia (who wrote the opinion), Roberts, Alito, and Thomas. At issue was the meaning of a defendant’s right to counsel. The result was a marked departure from stare decisis and the explicit overturning of Michigan v. Jackson (1986) which on 6th Amendment grounds prohibited interrogations of defendants who have requested counsel at arraignment, unless they themselves initiate conversations with police or until they have spoken with counsel.

The issues in this case principally involve the roles of the 5th and 6th Amendments in criminal prosecutions. I will try to unravel these and explain the meaning of the result.

The facts are these. Following a murder during the course of a burglary, Jesse Montejo was brought in for questioning. He was read and waived his Miranda rights. During his interrogation, his story kept changing and he was arrested for 1st degree murder. Louisiana has a requirement for a preliminary hearing within 72 hours of arrest for the purpose of appointing counsel. In Montejo’s case, the court automatically appointed the Office of Indigent Defender to represent him. Later that day and before Montejo had seen his court appointed counsel. He was re-interrogated by police. He again waived his Miranda rights. This interrogation had two results. First, Montejo agreed to go with police to hunt for the murder weapon (which had been thrown in a lake). Second, during this expedition Montejo wrote an incriminating letter in which he apologized to the wife of the murdered man. Upon his return to the jail, he was met by his legal representative who protested the police’s actions. Based on this evidence, Montejo was convicted and sentenced to death. Montejo’s attorneys appealed citing his lack of 6th Amendment legal counsel.

Now to understand what is going on in this case we have to go back and look at the basis of Miranda and Miranda rights. Miranda v. Arizona (1966) was argued on 5th Amendment grounds, the relevant portions of which are that no person:

shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law

The result was the Miranda warning which contains some variant of the following:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights?

You may ask how the “right to an attorney” during questioning got in there since it is not mentioned in the 5th Amendment. The Court thought the Miranda warning had to be more than just empty words:

“YouverightremainsilentAnythingyosayaginstyoincourtolaw. So Lenny, why did you do it?”

To this end, it provided the right to an attorney during questioning as a procedural safeguard to make sure “the Fifth Amendment’s privilege against self-incrimination” had teeth. This means that from the moment a suspect invokes his right to an attorney the interrogation must stop (until the attorney is present and has been consulted.) But there has also been this inherent tension in Miranda, as it was even argued at the time, that it assumes defendants and suspects can intelligently assess their legal options under Miranda without an attorney.

So to recap, point one then is that Miranda is a 5th Amendment case. Point two is that the 6th Amendment has something to say about the right to counsel too and does so explicitly:

In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.

If you will notice, this is a much broader guarantee than what came out of Miranda. The 6th Amendment protection applies to all aspects of a person’s defense. The 5th Amendment applies to only one, custodial (i.e. while in police custody) interrogation. There is a natural, if sometimes uncomfortable, overlap between the two, and between the two and the desires of the police to interrogate suspects with as a wide a latitude as possible. Michigan v. Jackson (1986) comes into this because it put a cutoff point for lawyerless interrogations at arraignment and was argued on 6th Amendment grounds. Or more precisely, when the issue of representation came up at arraignment and the defendant invoked his/her right to an attorney, this revoked the waiving of Miranda, and police interrogation could not proceed until counsel had been consulted.

Scalia’s majority opinion eliminates Michigan v. Jackson (1986) from the equation. The opinion is vintage Scalia which is to say it is specious beyond belief. He suddenly sees it as mysterious how the court and defendant come to an agreement concerning the defendant’s legal representation. If the defendant is automatically appointed an attorney by the court, he/she may not get the chance to invoke the right to counsel and so trigger Jackson. Oh my, state laws differ. How can we ever come up with an approach that will reconcile them all (something that Supreme Court decisions routinely do)? Better not to try. Then Scalia erroneously asserts that under Jackson “once a defendant is represented by counsel, police may not initiate any further interrogation.” Now this simply isn’t true. Interrogation cannot resume until the defendant has consulted his attorney. That’s all. Once this has been done, the defendant can refuse to participate in any further interrogation, can accept interrogation but only if counsel is present, or can accept interrogation and waive the right to counsel’s presence. Depending on the circumstances, a competent attorney will advise one of the first two, but this does not preclude the defendant’s choosing the third.

Rather than address the core 6th Amendment protection of a defendant’s right to counsel to assist in their defense or in other words the accused’s right to adequate legal representation, Scalia changes the subject. He says the real issue is police badgering of suspects and he asserts that 3 Court decisions already afford defendants sufficient protections in this area. In addition to Miranda, Scalia cites Edwards v. Arizona (1981) which says that once a defendant invokes his/her right to counsel, interrogation must stop and Minnick v. Mississippi (1990) which states that no subsequent interrogation can continue until counsel is present. Scalia in an unusual move for him even suggests that Montejo might try an appeal on these grounds.

He finishes with a lame defense about how his overturning of Jackson really isn’t an assault on stare decisis. First, although Jackson has been on the books for some 23 years, Scalia has decided that it is unworkable and so can’t be settled law. Second, it hasn’t been on the books long enough, only “two decades.” Scalia does not tell us how many years a decision needs to be around before he considers it settled law worthy as serving as precedent. But the question that comes immediately to my mind is if Jackson was not settled law after 23 years, then is Roe v. Wade after 36 years? Scalia then argues bizarrely that overturning Jackson won’t make much difference anyway because police and prosecutors have already been trained to follow it. Scalia doesn’t seem to notice that this undercuts his workability argument. If law enforcement can work within Jackson, then it is clearly workable. The question is its application to all states and this is, as I noted above, precisely what Supreme Court decisions do. When the Court ruled in Brown versus the Board of Education, it wasn’t saying something just about the schools in Kansas. Scalia’s last point on the legal reasoning in Jackson revolves around its costs versus benefits. He asserts that “society’s compelling interest in finding convicting, and punishing those who violate the law” is somehow too compromised by Jackson. But is it? How many stories have you read in the last 23 years about felons getting off because of police violations of Jackson? Didn’t Scalia just argue that, despite being unworkable, police and prosecutors already have worked Jackson considerations into their procedures? If you think that Scalia’s own legal reasoning is a hodgepodge, then I think you are being too diplomatic.

The practical effects of the Court’s overturning Jackson in the Montejo case will be to allow law enforcement to work the bureaucratic and administrative systems to keep uninformed suspects away from their attorneys for as long as possible, even beyond their arraignments. To understand how screwy and intellectually bankrupt Scalia’s role is in all this, you need to understand that his demolition of Jackson is predicated on his acceptance of Miranda. But the last time there was a fullblown challenge to Miranda, in Dickerson v. US (2000), Scalia argued in dissent that there was no Constitutional justification for Miranda. So what Scalia has done is trash a protection (Jackson) explicitly stated in the 6th Amendment of the Constitution on the basis of an unstated but implicit 5th Amendment protection (Miranda) in which he does not believe.