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Supreme Court ruling weakens the right to counsel

By discarding a 1986 precedent, the court has needlessly weakened the protections of the 6th Amendment.

June 01, 2009

When a suspect on a TV crime show asks for an attorney, the fictional detectives complain that their target has "lawyered up." That's a pejorative description of an important legal protection for individuals in custody who might be bullied into a confession. Last week, the Supreme Court needlessly weakened that safeguard by overruling a relatively recent precedent.

Dividing along liberal-conservative lines, five justices rejected a claim by Jesse Jay Montejo, a Louisiana death row inmate, that his confession was used against him in court in violation of a 1986 high court decision strengthening the 6th Amendment right to counsel. In the earlier case, the court had suppressed the confessions of two convicted murderers from Michigan because police questioned them before they could consult their lawyers.

Writing for the court in 1986, Justice John Paul Stevens said that "after a formal accusation has been made -- and a person who had previously been just a 'suspect' has become an 'accused' within the meaning of the 6th Amendment -- the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely proper at an earlier stage of their investigation." In practical terms, this meant that once a suspect had requested a lawyer, police couldn't interrogate him.

Last week, Stevens was in the minority when the court, in an opinion by Justice Antonin Scalia, put the 1986 decision on the judicial scrap heap. Scalia offered a grab bag of reasons for discarding the precedent: Police were prevented from badgering suspects under other Supreme Court rulings; it was unworkable because, in some states, lawyers are automatically appointed for indigent defendants; and, finally, retaining it would incur "substantial costs to the truth-seeking process and the criminal justice system" -- an argument hard to square with the assertion that the 1986 decision doesn't add much to protections offered by other rulings.

It's difficult to predict whether the interment of this precedent will affect a significant number of criminal investigations nationally or in California, whose courts are prohibited by the state Constitution from adopting rules of evidence more favorable to defendants than those promulgated by the Supreme Court. What's undeniable is that last week's ruling blurs what should be a bright line: that once a suspect has a lawyer, questioning should stop unless the lawyer is present. History has shown that the best protection against coerced confessions is a clear set of rules for police to follow. Instead of clarifying the obligations of police to protect suspects' rights, the court has muddied them.

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