Prophylactics
'Tis the season for overruling decisions, apparently. Just a month ago Justice Scalia provided the fifth vote in Arizona v. Gant (discussed here), which essentially overruled the "bright-line" rule established in Belton v. US as to when police could search a car incident to the arrest of an occupant. Last week, in Montejo v. Louisiana, Scalia again provided the 5th vote, this time expressly overruling a prior decision, albeit a pro-defense one.
Montejo was picked up as a murder suspect, and after waiving his Miranda rights gave police conflicting accounts before finally admitting to the killing. He was then taken before a judge for a "72-hour hearing" -- the equivalent of an initial appearance under Ohio law -- and the judge appointed the public defender's office to represent him. The cops then visited him in jail and requested that he accompany them to recover the gun he'd used. After again being advised of his Miranda rights, he went along, and not only helped the police find the weapon, but wrote an inculpatory letter of apology to the victim's widow. When he returned, he finally met with his court-appointed attorney, who, the opinion notes, "was quite upset that the detectives had interrogated his client in his absence." I'll bet.
Back in 1986, the Court had decided in Michigan v. Jackson that once a defendant asserts his right to counsel at a court appearance, the police can't initiate any further interrogation of him. The Lousiana court in Montejo picked up on the word "asserts": since the record indicated only that a lawyer had been appointed for Montejo, rather than that he had specifically requested one, this wasn't enough to trigger Jackson's protections.
The Supreme Court regarded this as silly, and rejected it: Jackson doesn't hinge on whether the defendant actually requests that an attorney be appointed for him. In fact, that was the clear result after oral argument. But then the Court asked for further briefing on the issue of whether Jackson should be overruled altogether, and last week it decided that it should be.
As Scalia notes in his opinion for the 5-man majority, Jackson was intended as a prophylactic rule, i.e., one that is not prescribed by the Constitution's text, but by the perceived need to protect a constitutional right. Miranda is the classic example on such a rule: requiring the police to advise a defendant of his constitutional rights before questioning ensured that any waiver of those rights would be "knowing, intelligent, and voluntary." Five years before Jackson, the Court had established another prophylactic rule in Edwards v. Arizona: once a defendant had invoked his Miranda rights to cut off questioning, the police could not resume questioning unless the defendant initiated it. Jackson, in fact, relied heavily on Edwards: while the latter was intended to protect a defendant's Fifth Amendment right against self-incrimination, the former was intended to protect his Sixth Amendment right to counsel.
But Edwards and Jackson have the same purpose: to keep the police from badgering a defendant into relinquishing his rights. Essentially, they both provide that once the defendant has invoked his rights, interrogation must stop, and it's up to the defendant to make the next step. Scalia's point is that given Miranda and Edwards, why is Jackson necessary? Miranda requires the police to advise a defendant of his rights; Edwards prohibits them from resuming an interrogation once the defendant has invoked those rights. What further need is there for another decision to keep the police from interrogating a defendant? As Scalia and the majority see it, the incremental value of protecting a defendant offered by Jackson doesn't offset the costs of excluding relevant evidence.
Some have read Montejo as requiring a defendant to specifically assert his right to counsel; the local public defenders office, for example, has started indicating on the record at arraignments that the defendant is requesting counsel, rather than simply letting the court appoint one. Doesn't matter: Jackson is dead, and defendants will have to rely on Miranda and Edwards for protection of their rights when they're interrogated.
The Supreme Court's only going to decide about 70 cases this year, and it's now overruled three prior decisions. (In addition to Gant's overruling of Belton, the Court also overruled a decision on how qualified immunity in civil rights claims had to be determined, as I discussed here.) In fact, much of the dissenters' focus was directed at overruling a decision that had been handed down only 23 years ago. That elicited a biting concurrence from Justice Alito, who had dissented from Gant's overruling of Belton. Observing that three of the dissenters in Montejo had voted with the majority in Gant, Alito wrote
The dissent, finally, invokes Jackson's antiquity, stating that "the 23-year existence of a simple bright-line rule" should weigh in favor of its retention. But in Gant, the Court had no compunction about casting aside a 28-year-old bright-line rule. I can only assume that the dissent thinks that our constitutional precedents are like certain wines, which are most treasured when they are neither too young nor too old, and that Jackson, at 23, is in its prime, whereas Belton, at 28, had turned brownish and vinegary.
Guess he told them, huh?
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