The People’s Lawyer: Right to Police Persuasion

Ann Schneider Jun 25, 2009

On May 26, the U.S. Supreme Court made a radical departure from settled law when it ruled in Montejo v. Louisiana that police could continue to question a suspect even when his court-appointed attorney is not present.

The 5 to 4 decision revoked the Court’s 1986 ruling in Michigan v. Jackson and erased the distinct line that guarantees that the questioning of a suspect by police will cease upon the appointment of counsel. As Justice John Paul Stephens noted in his dissenting opinion, “The purpose of the Sixth Amendment is to protect the unaided layman at critical confrontations with his adversary by giving him the right to rely on counsel as a medium between himself and the State.”

There is little doubt that Jesse Montejo murdered his friend Lewis Ferrari. Montejo confessed to the killing after waiving his Miranda rights, which include the right to remain silent and the right to an attorney, before he was arraigned in district court in Sept. 2002. In a twist that would propel the case all the way to the Supreme Court, Montejo’s court-appointed lawyer was unable to meet with his client the day before police had persuaded the defendant to waive his Miranda rights, lead authorities to the murder weapon and write a letter of apology to the victim’s family.

The trial judge’s decision to allow the tainted evidence to be used (Montejo was convicted and sentenced to death) was upheld by the Louisiana Supreme Court. The case was appealed to the U.S. Supreme Court, which was originally asked to rule only on the Louisiana court’s exceedingly narrow reading of the law under Jackson.

After oral argument in January, the case took a cynical turn when Chief Justice John Roberts and Justice Antonin Scalia ordered the parties to brief the question of whether Michigan v. Jackson should be overturned.

President Obama’s Justice Department took the bait and argued that the protections provided by Jackson are no longer needed and Montejo’s confession outside the presence of his lawyer was admissible in court.

However, numerous former state and federal law enforcement officials and judges filed an amicus brief with the U.S. Supreme Court in support of the previous law, stating that the Sixth Amendment protections provided by Jackson had not harmed the criminal justice system.

Scalia flippantly replied to critics, writing in the majority opinion that, “If the rule truly does not hinder law enforcement or make much practical difference, then there is no reason to be particularly exercised about its demise.”

How much respect is due to a court like this? The quartet of Justice Roberts, Scalia, Alito and Thomas has scaled the heights of judicial activism.

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