Right to Counsel? Not if Obama Has His Way

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Right to Counsel? Not if Obama Has His Way

Postby WaTcHeR » 23 Apr 2009, Thu 4:25 pm

New Solicitor General Elena Kagan, arguing on behalf of the Obama administration, is urging the U.S. Supreme Court to overturn a landmark decision from Michigan that established clear guidelines on the questioning of defendants who have, or have requested, legal representation after being arraigned.

The current case, Montejo v Louisiana, seeks to overturn the 1986 Michigan v Jackson ruling that 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 is presumed to be invalid because it was not made with the advice of counsel.

The Obama administration filed a brief (PDF) in the Montejo case arguing that this rule is outdated and unnecessary:

Although the Sixth Amendment affords criminal defendants a right to counsel at certain critical pre-trial stages, the Amendment should not prevent a criminal defendant from waiving that right and answering questions from police following assertion of that right at arraignment. Jackson serves no real purpose and fits poorly with this Court’s recent precedent; although the decision only occasionally prevents federal prosecutors from obtaining appropriate convictions, even that cost outweighs the decision’s meager benefits.

The Sixth Amendment protects the right of those accused of crimes to a speedy trial, to confront the witnesses against them and to be represented by counsel. The government’s brief argues that the Jackson rule is unnecessary because the purpose of the Sixth Amendment was merely to “protect the adversary process” in a criminal trial. Questioning a defendant without counsel present, the government asserts, does not undermine the adversary process because the defendant can choose on his own to talk to the police and answer their questions.

The Jackson ruling established the notion that once a defendant asserts their right to be represented by an attorney, they are requesting the attorney’s participation “at every critical stage of the prosecution.” Interestingly, the government’s brief recognizes that, just as in the Miranda case that requires the police to inform the accused of the right to remain silent and the right to have an attorney present during questioning, the purpose of such a rule is to “prevent police from badgering a defendant into waiving” their previously asserted rights.

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, have 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.

Oral arguments in this case were heard in January but the court requested that both sides file briefs specifically addressing the question of whether Jackson should be overturned. Attorneys for the defendant Montejo and the state of Louisiana have until April 24 to file reply briefs to one another’s arguments. The high court will likely hand down its decision sometime in June.


http://michiganmessenger.com/17022/obam ... overturned
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