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Do IT this week: Layering
The Supreme Court erodes the right to legal counsel
By Michael Douglas
Beacon Journal editorial page editor
Published on Sunday, Jul 05, 2009
Justice John Paul Stevens made a striking observation about the Supreme Court two years ago. He told Jeffrey Rosen, a legal analyst preparing a profile of Stevens for the New York Times Magazine, that ''including myself, every judge who has been appointed to the court since Lewis Powell has been more conservative than his or her predecessor. Except maybe Justice Ginsburg. That's bound to have an effect on the court.''
Powell joined the court in 1971. Today, Stevens might have added the name of Sonia Sotomayor, arguably more conservative in ways than the departing David Souter.
Stevens was addressing the familiar criticism, hurled from the right, that too many justices tapped by Republican presidents have a tendency to turn left. No more Souters, was the cry during the tenure of George Bush the younger, leading to John Roberts and Samuel Alito. Stevens (age 89) holds that he is the same ''judicial conservative'' he was when tapped by Gerald Ford.
The justice expressed his view more tartly in a 2007 dissent, clashing with the majority's decision to strike down race-based employment policies in public schools. ''It is my firm conviction,'' he wrote, ''that no member of the court that I joined in 1975 would have agreed with today's decision.''
How has the court changed, precisely? A Stevens dissent in a case decided in May offers clues. The justice barely contained his anger, the 5-4 majority overturning an opinion he wrote for the court 23 years ago.
In May, the court ruled in a case brought by Jesse Jay Montejo, a Louisiana death row inmate. At first, Montejo waived his right to a lawyer. Police questioned him. He told conflicting stories. Then, at a preliminary hearing, a judge appointed a public defender. Police officers soon approached Montejo in jail, and he agreed to accompany them to a lake where he claimed to have left the murder weapon. During the trip, Montejo wrote a letter of apology to the victim's widow, paper and pen supplied by the officers.
No surprise that Montejo's attorney was furious at the turn of events. He had yet to meet with his client. The trial court admitted the letter into evidence. Montejo appealed arguing that the officers had violated his constitutional right to legal counsel by interrogating him without his appointed lawyer present. He contended the officers pressured him into the confession.
The Supreme Court wasn't impressed. Writing for the majority, Justice Antonin Scalia reasoned that Montejo had been read his Miranda rights, the officers relaying that he had the right to remain silent and to have a lawyer present. The court held that Montejo essentially waived his right to counsel by choosing talk.
In doing so, the majority abandoned the worthy precedent authored by Justice Stevens in which the court barred police officers from initiating questioning after a defendant asserted the right to a lawyer at an arraignment or similar hearing. Justice Scalia adopted his dismissive tone in jettisoning the 1986 ruling. He argued the ''marginal benefits are dwarfed by its substantial costs.'' He asserted that following precedent would result in crimes going unsolved and criminals unpunished ''when uncoerced confessions are excluded and when officers are deterred from even trying to obtain confessions.''
The trouble is, there's little evidence to support the majority's claim.
In his dissent, Stevens cited a friend of the court brief put together by a bipartisan collection of state and federal law enforcement officials and judges. The brief explained that ''it is a rare case where this rule lets the guilty go free.'' More, as Stevens noted, these officials and judges prefer the ''simple, bright-line rule'' and its ''clear guidance.'' He declared there is ''substantial evidence'' the rule is ''not only workable, but also desirable from the perspective of law enforcement.''
That element of clarity deserves emphasis. The Miranda warning has proved so effective the past four decades because of its simplicity amid the tumult police officers often confront.
What most annoyed Stevens was the sloppy constitutional reasoning, the majority seemingly determined to see his earlier ruling as largely about police badgering of suspects. Not so! he practically exclaimed, the majority misreading the precedent and then having the gall to cudgel the thinking. He focused on the important distinction between the Fifth Amendment right against self-incrimination and the Sixth Amendment right to legal counsel.
Protecting the former isn't enough to ensure the latter.
The 1986 ruling was all about ensuring adequate legal representation, about ''the heart of the Sixth Amendment's guarantee,'' as Stevens reminded in his dissent, ''the public's interest in knowing that counsel, once secured, may be reasonably relied upon as a medium between the accused and power of the state.'' Jesse Montejo should have had a conversation with his appointed lawyer before talking again with police officers, to alert him to possible consequences of his actions.
The purpose isn't to benefit criminals. It involves the rule of law, fairness and justice, what we would expect if faced with similar circumstances, ''to have a lawyer present at all critical stages of a criminal prosecution'' (to borrow from Stevens).
Stevens pointed to a 1967 ruling in which the court held that a defendant and his counsel must be notified of an impending lineup. He added that surely such ''robust protection'' should be applied to interrogations of defendants in custody. You wouldn't think such a founding principle, applied by a ''judicial conservative,'' would be left for a dissenting opinion. The moment reveals how much the court has changed.
Douglas is the Beacon Journal editorial page editor. He can be reached at 330-996-3514, or emailed at mdouglas@thebeaconjournal.com.
Justice John Paul Stevens made a striking observation about the Supreme Court two years ago. He told Jeffrey Rosen, a legal analyst preparing a profile of Stevens for the New York Times Magazine, that ''including myself, every judge who has been appointed to the court since Lewis Powell has been more conservative than his or her predecessor. Except maybe Justice Ginsburg. That's bound to have an effect on the court.''
Get the full article here.
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