statism watch

This opens the possibility of all sorts of trickery, particularly in the case of the mentally disadvantaged. Who in their right mind would waive the right to have a lawyer present at their interrogation?

By James Vicini, Reuters
May 26, 2009

WASHINGTON – The U.S. Supreme Court ruled on Tuesday that police, under certain circumstances, can initiate an interrogation of a suspect without the defendant’s lawyer being present.

By a 5-4 vote, the conservative majority overruled a 23-year-old Supreme Court decision that barred the police from initiating questioning after a defendant asserted the right to an attorney at an arraignment or similar proceeding.

The 1986 decision held that once a defendant invoked the right to counsel, only the suspect, and not the police, can initiate the contact.

The ruling was the latest in a recent string by conservative justices expanding the power of police to question suspects, but it does not change the landmark 1966 ruling barring the police from questioning a suspect who invoked the right to remain silent or have a lawyer present.

The decision was a defeat for Jesse Jay Montejo, a Louisiana death row inmate. He was convicted and sentenced to death for the murder of a dry-cleaning operator during a robbery in 2002.

He initially waived his right to a lawyer and was questioned by the police. He told several conflicting stories. Several days later, he appeared in court for a preliminary hearing and a local judge appointed a lawyer to represent Montejo, who could not afford an attorney.

Later that day, police investigators approached Montejo in prison and he again waived his right to a lawyer.

But Montejo later claimed the police had violated his constitutional right to counsel by interrogating him without his lawyer being present and pressuring him to write a letter confessing and apologizing to the victim’s wife. That letter was later introduced as evidence against him at his trial.

The Louisiana Supreme Court and then the U.S. Supreme Court rejected Montejo’s appeal.

Writing for the court majority, Justice Antonin Scalia said there was little if any chance a defendant will be badgered into waiving the right to have counsel present during police-initiated questioning.

In overruling the 1986 decision, Scalia said, “The considerable adverse effect of this rule upon society’s ability to solve crimes and bring criminals to justice far outweighs its capacity to prevent a genuinely coerced agreement to speak without counsel present.”

Liberal Justice John Paul Stevens, the author of the 1986 decision, disagreed.

In dissent, Stevens said the dubious benefits of overruling the decision are far outweighed by damage to the rule of law and the integrity of the constitutional right to an attorney.

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