Wednesday, May 27, 2009

Right to counsel? What right to counsel?

Earlier this week the United States Supreme Court took a whack at a citizen accused's right to counsel in its decision in Montejo v. Louisiana, 554 US ___, No. 07-1529 (2008).

Mr. Montejo was charged with first degree murder and an attorney was appointed for him at a preliminary hearing. Later that day police read Mr. Montejo his Miranda rights and asked him to accompany them on their search for the  murder weapon. Mr. Montejo agreed. During the trip, Mr. Montejo wrote a letter of apology to the victim's family that was introduced into evidence, over his objection, at trial. Mr. Montejo was convicted and sentenced to death.

On appeal to the Louisiana Supreme Court, Mr. Montejo's attorney argued that since counsel had already been appointed for Mr. Montejo at the preliminary hearing, the police violated his constitutional right to counsel by asking him to accompany them on their excursion and that, as a result, the incriminating letter should have been suppressed at trial. The state supreme court disagreed and upheld the conviction on the grounds that the right to counsel only attaches once a defendant has made a request for counsel -- and, since Mr. Montejo did not make such a request at the preliminary hearing, the right defined in Michigan v. Jackson, 475 US 625 (1986).

Justice Scalia, in the Court's opinion, wrote that Louisiana's interpretation of the law was impractical because about half the states will appoint counsel for an indigent defendant whether he makes a formal request or not. He also wrote that Mr. Montejo's position was untenable because the rule in Jackson was designed to prevent the police from badgering a defendant into changing his mind regarding his invocation of his right to counsel.

Justice Scalia argues that in Mr. Montejo's case, since he stood mute at the preliminary hearing there is nothing to indicate that he would be opposed to the idea of speaking to the police without the presence of counsel. He argues that by remaining silent, Mr. Montejo had obviously not yet made up his mind to invoke his right to counsel.
"Any criminal defendant learned enough to order his affairs based on the rule announced in Jackson would also be perfectly capable ofinteracting with the police on his own." - Justice Scalia, Montejo v. Louisiana
Of course, Justice Scalia is assuming that most criminal defendants are aware of the entire breadth of their constitutional protections.
"The principal cost of applying any exclusionary rule “is, of course, letting guilty and possibly dangerous criminals go free . . . .” Herring v. United States, 555 U. S. ___, ___ (2009) (slip op., at 6). Jackson not only “operates to invalidate a confession given by the free choice of suspects who have received proper advice of their Miranda rights but waived them nonetheless,” Cobb, supra, at 174–175 (KENNEDY, J., concurring), but alsodeters law enforcement officers from even trying to obtain voluntary confessions. The “ready ability to obtain unco-erced confessions is not an evil but an unmitigated good.” McNeil, 501 U. S., at 181. Without these confessions, crimes go unsolved and criminals unpunished. These are not negligible costs, and in our view the Jackson Court gave them too short shrift." -- Justice Scalia, Montejo v. Louisiana
So now we are reduced to a balancing test when it comes to whether or not the right to counsel is to be observed. Silly me, I always understood our 5th and 6th Amendment rights were there to protect the individual against the overwhelming might of the state.

Ours is an adversarial system and one's basic protections should not be weighed against the inconvenience it would cause those seeking a conviction.

What do you think?

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