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.