A Supreme Court case came to my attention today, the result of which may change how police can interrogate a suspect after arraignment.  According to SCOTUSblog, the case originally was about whether a defendant has to specifically affirm an appointment of counsel during an arraignment (the part where you make a plea of guilty or not guilty):

The Montejo case is before the Court as a test of whether a suspect, who has an appointed defense lawyer and thus the right to counsel has attached, must take additional affirmative steps to accept the appointment in order to bar police questioning with the lawyer’s presence.

The question came about because of one word out of the 1986 Michigan v. Jackson case, which put the current restrictions into place.  I’ve highlighted the word:

The confessions should have been suppressed. Although the rule of Edwards v. Arizona, 451 U.S. 477 , that once a suspect has invoked his right to counsel, police may not initiate interrogation until counsel has been made available to the suspect, rested on the Fifth Amendment and concerned a request for counsel made during custodial interrogation, the reasoning of that case applies with even greater force to these cases. The assertion of the right to counsel is no less significant, and the need for additional safeguards no less clear, when that assertion is made at an arraignment and when the basis for it is the Sixth Amendment.  If police initiate an interrogation after a defendant’s assertion of his right to counsel at an arraignment or similar proceeding, as in these cases, any waiver of that right for that police-initiated interrogation is invalid.

Basically, the Jackson decision took a case decided for the fifth amendment and applied it to the sixth, with some additional restrictions.  The original purpose of the case was to decide whether a defendant must specific accept the counsel given to him or him, rather than just accepting it with silence.  However, the case has now expanded into deciding whether or not Jackson should be overturned entirely.  Following a court request, several groups, including the U.S. government, have filed amicus brief supporting or rejecting such a decision.

The Obama Justice Department is just one group that has filed with the court, saying:

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.

Other groups, including the ACLU, disagree:

The Jackson rule ensures that the right to assistance of counsel does not become a meaningless abstraction, easily lost when police confront the defendant outside the presence of counsel. Amici strongly support the Jackson rule for all persons. In this brief, however, amici present empirical evidence that the concerns undergirding the Jackson rule are magnified for particularly vulnerable defendants, including the mentally and developmentally disabled, juveniles, those lacking education, those with substance addiction, and the indigent.

Before I give my own analysis of the case at hand, both in its original request and the subsequently added review of Jackson, lets take a look at the history that led to this point.

In 1981, the court in Edwards v. Arizona held that a suspect must specifically waive his right to counsel before answering police questions in order for confessions and other evidence obtained through interrogation to be admissible in court:

Held: The use of petitioner’s confession against him at his trial violated his right under the Fifth and Fourteenth Amendments to have counsel present during custodial interrogation, as declared in Miranda, supra. Having exercised his right on January 19 to have counsel present during interrogation, petitioner did not validly waive that right on the 20th. Pp. 451 U. S. 481-487.

(a) A waiver of the right to counsel, once invoked, not only must be voluntary, but also must constitute a knowing and intelligent relinquishment of a known right or privilege. Here, however, the state courts applied an erroneous standard for determining waiver by focusing on the voluntariness of petitioner’s confession, rather than on whether he understood his right to counsel and intelligently and knowingly relinquished it. Pp. 451 U. S. 482-84.

(b) When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to police-initiated interrogation after being again advised of his rights. An accused, such as petitioner, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation until counsel has been made available to him, unless the accused has himself initiated further communication, exchanges, or conversations with the police. Here, the interrogation of petitioner on January 20 was at the instance.

Essentially, the police cannot use a willingness to talk after a suspect has requested counsel as evidence that he has waived his right to a lawyer.  Unfortunately, most of popular culture seems to be based in a world where the Edwards case never existed.  Characters on the popular criminal justice shows routinely are shown confessing without having first specifically waived their right to counsel, and I don’t think I’ve ever seen an instance where this evidence was rejected.  However, I digress.

Following up in 1985, the Supreme Court took on the Jackson case whose fate is currently being decided.  I covered that one above the fold.  Fast forward to this year, and we have Montejo v. Louisiana.  In the case, Jesse Jay Montejo is accused of murdering business owner Louis Ferrari.  At a 72-hour hearing, he is given a public defender, presumably because he cannot afford his own.  However, he later waves his miranda rights back at police questioning.  Montejo argues that this violates Jackson because he was told that he did not in fact have representation and then he was questioned by the police before his counsel had arrived.  The crux of the case, as brought by Montejo, is whether he must affirmatively accept the counsel that was given to him in order for the rules outlined in Jackson to come into play, or whether his non-refusal was enough.  The case has now been extended to consider whether Jackson should be overturned completely.

That said, I think Montejo’s argument, that his non-refusal was enough to qualify as acceptance of counsel, is the correct one.  I think it is better to have erred on the side of caution and appointed counsel for Montejo initially.  If he wishes, he can then later wave his right to a lawyer.  It seems to me that the rights of the accused should be assumed.  I mean, in some cases, they are automatically assumed.  In 1932, Powell v. Alabama decided that a lawyer would be appointed “in a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeble mindedness, illiteracy, or the like, it is the duty of the court, whether requested or not, to assign counsel for him.”  This ruling was extended to the poor in 1938’s Johnson v. Zerbst.

So, the Court has some significant precedent that they can use in making the argument that it should have been an assumption that Montejo was covered under the Jackson rules.  Verbal assertion is not needed, and if Montejo’s argument is true, the way his the Louisiana 72-hour hearing is set up did not give him an opportunity to make any assertion.  Give him his public defender, I say, and he can reject it later if he wishes.

Or can he?  The ability to reject his right to counsel under Jackson brings me back to the government’s amicus brief following the Court’s request for them in deciding whether Jackson should be overturned.  For the most part, I think the ruling was good.  In my mind, interrogation is interrogation is interrogation, whether it occurs before or after the arraignment.  So, if a defendant invokes his right to counsel, whether it is private or appointed, then no, the police should not be able to question that person further until counsel arrives.

However, I have a problem with the final sentence of the Jackson ruling.  Here it is again, emphasis mine:

If police initiate an interrogation after a defendant’s assertion of his right to counsel at an arraignment or similar proceeding, as in these cases, any waiver of that right for that police-initiated interrogation is invalid.

What does that mean?  Does that mean that the defendant can never wave his right to counsel, even after the lawyer has arrived?  Now, I understand the idea behind this part of the ruling, and its cousin in Edwards.  It’s to stop the police from coercing the defendant into waiving his right to counsel after having been granted it.  I get that, and I do not deny that it’s a good idea.  However, a defendant should also have the right to simply fire his lawyers and represent himself after he got a lawyer in the first place.  If there’s another ruling that suggests this is true, Jackson appears to overrule it.  If there’s any area of the decision that needs to be reviewed, it’s this part.

That concern, I think, is the source of the Justice Department’s amicus brief.  As they say, “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.”

I can only agree with that.  Now, I can understand that an argument could be that the defendant may be too incompetent to do this.  Well, as pointed out above, Powell already covers this scenario.  Frankly, I see no reason why a perfectly competent defendent should be able to switch to self representation during post-arraignment interrogation if he or she so wishes.  They are allowed to do this during arraignment, so I can’t find a reason why the post-arraignment period is any different.  However, it must only be after counsel has arrived at the interrogation.  Other than that, it’s the defendant’s choice.

So, to conclude, I think that a verbal assertion is not necessary for counsel to be granted post-arrangement.  I also think that on the issue of overturning Jackson, that the part of it suggesting that counsel cannot be rejected after it’s been granted it problematic, that the rest of the decision should not be overturned.

(H/T Ed Morrisey @ Hot Air)