Wednesday, May 27, 2009

A tangled web

Anyone who thinks the U.S. Supreme Court's Miranda-related jurisprudence (for lack of a better phrase) has not become a convoluted area should take a look at yesterday's opinions in Montejo v. Louisiana (5-4; Scalia wrote the majority opinion, Stevens the dissent).

Here is a case where the defendant apparently confessed to a murder under interrogation, having (again apparently) waived his rights to counsel and to remain silent, then was appointed a lawyer by the court at an arraignment, then later was read his Miranda rights again by police officers and ended up riding in a car with them and writing an incriminating letter on the way. How confusing it must be (as the dissent pointed out) to be given a lawyer in the morning and then 'mirandized' again in the afternoon. One might imagine the accused thinking: "Why are you saying I can request a lawyer? The court just appointed a lawyer for me. I already have a lawyer."

The Supreme Court in Montejo was mostly absorbed, as is not infrequently the case, with doctrinal disputes and acrobatics and parsing the meaning of phrases in precedents and dueling footnotes (and see Alito's rather bitter and personal concurring opinion), and thus left mostly unanswered, as far as I could tell, such practical questions as: How much did the accused understand of what was being said to him? How carefully were his rights read and/or explained? Beneath the somewhat arcane arguments (to those not used to them) about the proper application of stare decisis and the interaction of the Fifth and Sixth Amendments, the real question is: Under what circumstances can a defendant be said to have validly waived his rights? And, as in all such cases, where should the balance be struck between the defendant's rights and the societal interest in solving crimes (and solving them fairly and not by convicting the wrong person)?

[For a clearer explanation of the legal issues involved here, see my remarks in the comments. The key issue is whether the police can initiate questioning of someone who has a court-appointed lawyer without the lawyer being there.]

At a time when the criminal justice -- or if you prefer, criminal "justice" -- system continues to be plagued by very deep flaws, it is cases like these that show how important it is to have at least a few justices on the Supreme Court who have had at least some exposure to the world outside of middle-class (or upper-class) life and elite institutions and who therefore presumably can grasp in the deepest sense that actual lives are often at issue, not only logic and doctrinal niceties. ("The life of the law has not been logic but experience," as Holmes famously put it.) Sotomayor's background and personal story augur well in that respect. But then so too, arguably, did Clarence Thomas's story, and we all know how that turned out. Not of course that I'm suggesting any similarity in views between Thomas and Sotomayor -- just raising a little cautionary flag about inferring too much from someone's life history. That said, she seems to be a good choice and should be confirmed fairly easily.


hank_F_M said...
This comment has been removed by the author.
hank_F_M said...

precedents and dueling footnotesNews Flash

At Supreme Court today in the case of Precedents vs. Footnotes, Justice Scalia writing for the majority decided for footnotes against precedents saying that stare decisis did not apply in this case, Justice Stevens writing for the minority wrote a defense of precedent and stare decisisSomething the opposite of what one would expect from the popular news reports on the court.

At least they were agreed nine-zip that the Louisiana Supreme Court blew it.

It is an important issue. Actually I favor the stricter interpretation of Miranda etc.

One has to feel a little sympathy for the police. We tell them they have to read, and respect, the suspects Miranda rights, threaten all sorts of administrative, civil and even criminal retribution if they do not read them the rights, and then throw out the case because reading the suspects their rights to many times confuses the suspect.

One would think anyone that is sober with a sophomore high school education who has grown up watching occasional police procedurals on TV knows his rights and is making an intelligent decision no matter what he does. Does Law and Order ever convict someone who did not make incriminating statements with out a lawyer present.

But, as I would not be surprised in this case, it is not unknown for the police to read Miranda with a tone and body language that says “this means you have the right to be stupid, do you really want to?”

I say go with the strict interpretation, but then maybe it’s a good thing I am not a judge.

LFC said...

"...and then throw out the case because reading the suspect their rights too many times confuses the suspect."
Well, that isn't what happened here (though admittedly my post doesn't explain the case very well).

Montejo's argument was that he couldn't be approached for questioning at all by the police after the court had appointed a lawyer for him. Scalia in his majority opinion threw out the '86 case, Jackson v. Michigan (written by Stevens), on which Montejo's argument rested. So the case now goes back to allow Montejo to try to show that, when the police approached him to accompany them on the car ride to look for the murder weapon, he affirmatively asserted his right to counsel (and the police ignored that assertion by continuing to approach him). This would bring Montejo's claim under the Edwards case, which stands, rather than Jackson, which has now been overruled.

I think Stevens and the dissenters here probably had the better position: once a court has appointed a lawyer for a defendant, the police should not initiate questioning without the lawyer present. Scalia's opinion puts the onus on the accused to assert his rights even after the court has appointed a lawyer for him.