Tuesday, May 26, 2009


Once you have counsel, police can't ask you questions unless counsel is present. That's what SCOTUS said in 1986 in Michigan v. Jackson. Seems simple enough. It's clear, easy to follow, let's everyone know the rules of the game.

OK, maybe the rule was a bit less clear in the 5th Circuit where the rule was understood to apply only after you ask for counsel. Montejo never had a chance to ask; the court just appointed counsel for him, so he didn't have that protection. But that's essentially just the quibble that got the issue back to the Supreme Court after 23 years.

Jackson was a 6-3 decision, Justice Stevens writing the majority opinion. He's the only one of the Justices still on the Court and it seems clear to him that it was right then and is right now. But the composition of the Court has changed. And so did the vote. Today, in Montejo v. Louisiana, Jackson was overruled by a 5-4 vote with Justice Scalia providing the majority opinion.

Jackson should be overruled, Scalia said, because it isn't that well-established, nobody much relies on it, it's hard to apply, and it was a bad idea to begin with since it makes it harder for police to get confessions. None of that is true, of course. But when you want to reverse, you say what you must.

Stevens read his dissent from the bench, asserting bitterly (albeit fatuously), that the "decision can only diminish the public’s confidence in the reliability and fairness of our system of justice."


We interrupt this blog entry to bring you a word from the, uh, real world of actual cops and lawyers and judges, the real world of trial courts, the real world of criminal defendants who confess to stuff all the time - even when it isn't true (no need for waterboarding; just ask my client who confessed to the rape of a 2 month old child who everyone including the police who secured the confession eventually agreed was not, definitively not, raped). In the real world, confessions are almost never suppressed. Certainly, Jesse Montejo's wasn't.


But wait, there's more to the opinion.
The Court recognized that it was changing the landscapte, that by relying on Jackson, Montego was acting perfectly reasonably, but he was giving up on arguments that seemed silly to make when he had a sure winner. So they remanded the case for Montejo to try proving that there's some other reason his confession should be suppressed.

Don't hold your breath.

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