Blog Topic

Supreme Court says questioning after appointment of counsel is OK
Posted by: Gerald Smith
June 17, 2009

In Montejo v. Louisiana, 550 U.S. ___ (2009) (No. No. 07-1529, May 26, 2009), the Supreme Court held that police officers may initiate questioning even after an in-court request for counsel. The Court overruled Michigan v. Jackson, 475 U.S. 625 (1986), in which it held that "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid."

In the course of a robbery and murder investigation, police questioned Montejo, who was an associate of a suspect. Montejo waived his Miranda rights and in a videotaped interrogation eventually stated he had shot the victim. In accordance with the Louisiana's "72-hour rule," he was brought before the court for a preliminary hearing at which time counsel was appointed.

After the hearing, officers approached Montejo, who was still in custody, and asked him to accompany them to help locate the weapon used. He was again read his Miranda rights and agreed to go. While with the officers, he wrote a letter of apology to the victim's wife. Montejo did not meet with counsel until after his return to the jail. The letter was admitted at trial and Montejo was convicted of first degree murder and sentenced to death.

The Louisiana Supreme Court affirmed the conviction, holding that Jackson required an affirmative request for counsel by a defendant, whereas Montejo merely stood silent while the judge appointed counsel at the preliminary hearing.

In a somewhat convoluted opinion authored by Justice Scalia, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito, the Court concluded that Jackson was "unworkable" and should therefore be overruled. On the one hand, the Jackson rule might work in those states in which a defendant must request counsel to be appointed, but would be difficult to apply more than half of the states that appoint counsel appoint counsel without a request by the defendant. In those states, an unreasonable burden would be placed on the police to know whether a defendant had in fact invoked his right to counsel at a hearing. On the other hand, eliminating the invocation requirement, as Montejo sought, would be a fundamental departure from the Jackson rationale, which was to prevent badgering a defendant into changing his or her mind about counsel after an assertion of the right to counsel.

The Court concluded that the trilogy of Miranda v. Arizona, 384 U.S. 436 (1966); Edwards v. Arizona, 451 U.S. 477 (1981); and Minnick v. Mississippi, 498 U.S. 146 (1990), sufficiently protect a defendant. Miranda requires a person be advised of the right to counsel, Edwards clarifies that interrogation must stop immediately upon the assertion of the right, and Minnick bars any subsequent interrogation in the absence of counsel regardless of whether the defendant has actually met with counsel. Although these cases were all decided under a Fifth Amendment analysis, they are also applicable to the Sixth Amendment. With these protections, it may be presumed that a subsequent waiver of Miranda rights is knowing and voluntary.

Justice Alito, joined by Justice Kennedy, wrote a concurring opinion. Justice Stevens dissented, joined by Justices Souter, Ginsburg, and Breyer. Justice Breyer wrote separately, contending stare decisis required Jackson not be overruled.

Justice Stevens' dissent points to the troubling aspects of this opinion, including the assumption that Miranda and its progeny are adequate protections. The dissent also would place greater weight to the differences between Fifth Amendment considerations and those guiding Sixth Amendment analysis, pointing out that Jackson rational was much broader than stated by the majority and included protecting "the unaided layman at critical confrontations with his adversary."

Opinion (Supreme Court website)

Michigan v. Jackson (Justia)

Miranda v. Arizona (Cornell University Law School)

Edwards v. Arizona (Justia)

Minnick v. Mississippi (Findlaw)

Permalink