Supreme Court Overturns Michigan v.Jackson on Questioning Suspects Without Lawyer

By Jeralyn, Section Court Decisions
Posted on Tue May 26, 2009 at 10:22:20 AM EST
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Justice Anton Scalia announced a decision from the bench today:

The high court, in a 5-4 ruling, overturned the 1986 Michigan v. Jackson ruling, which said police may not initiate questioning of a defendant who has a lawyer or has asked for one unless the attorney is present.

The Michigan ruling applied even to defendants who agree to talk to the authorities without their lawyers.

Justice John Paul Stevens dissented, and read his dissent from the bench: [More...]

The Michigan v. Jackson opinion was written by Justice John Paul Stevens, the only current justice who was on the court at the time. He dissented from the ruling, and in an unusual move read his dissent aloud from the bench. It was the first time this term a justice had read a dissent aloud.

"The police interrogation in this case clearly violated petitioner's Sixth Amendment right to counsel," Stevens said. Overruling the Jackson case, he said, "can only diminish the public's confidence in the reliability and fairness of our system of justice."

Background here.

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Supreme Court Overturns Michigan v.Jackson on Questioning Suspects Without Lawyer | 41 comments (41 topical)

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The George Bush court in action (5.00 / 1) (#2)
by andgarden on Tue May 26, 2009 at 10:26:09 AM EST

Elections have consequences.

According to (none / 0) (#9)
by dk on Tue May 26, 2009 at 10:51:41 AM EST

SCOTUSBLOG

The Court had signaled in late March that it was considering overruling the Jackson decision, a decision designed to assure that the right to a lawyer is not lost during police questioning of a suspect they are holding, resulting in a confession to the crime. The Court ruled there that, once a suspect has claimed the right to a lawyer, any later waiver of that right during questioning would be invalid, unless the suspect initiated communcation with the officers. Among others calling for it to be overruled was U.S. Solicitor General Elena Kagan, who argued it was no longer necessary to protect the rights of those in police custody.

(emphasis mine)

Apparently elections have consequences in more ways than one.

More information on the Obama administation's agreement with Bush justices on this issue, including a link to its brief, found here.


: Wow (none / 0) (#13)
by Big Tent Democrat on Tue May 26, 2009 at 11:02:38 AM EST

What magically changed about human (5.00 / 2) (#17)
by inclusiveheart on Tue May 26, 2009 at 11:37:23 AM EST

nature to make it "no longer necessary" and when did it happen?

I would have thought something like that would be front page news of every major newspaper in the world.

Chuy! What color is the sky (5.00 / 2) (#20)
by tokin librul on Tue May 26, 2009 at 11:40:42 AM EST

where you live?

I highly doubt the police is out to frame people. Even they want to, they can't create eye witnesses or physical evidence.

Ever hear of Tulia, Texas?

Cops want closed cases. That's how they're judged for promotion. DAs want convictions, cuz that's how they get re-elected. Mostly neither group gives much of a rat's ass how they get the results they need.

Strange opinions all the way around (5.00 / 1) (#25)
by Bemused on Tue May 26, 2009 at 12:47:59 PM EST

Scalia and the majority essentially state Jackson is "unworkable" because some states require a formal request for counsel and some autonatically appoint counsel to the eligible.

Thus, they say getting rid of Jackson makes sense because otherwise either defendants in automatic appointment states would get lesser protection than those in states requiring a request, but applying the Jackson rule where no request has been made has no basis in the underlying doctrine and the "evil" sought to be remedied is both adequately protected by Edwards and Minnick and outweighed by the countervailing interest in convicting the guilty.

Alito's concurrence seems to serve no purpose other than yanking Stevens' chain for being inconsistent as to when stare decisis is important.

Stevens probably would have been well advised to refrain from championing stare decisis so soon after agreeing Belton should be overruled and he also dances around the real reason why a bright-line rule such as Jackson is preferable.

Suppression hearings on these issues generally have the cops on one side and the defendant (if he chooses to testify, othwerwise no fact witness) on the other. Case-by-case analysis of whether a waiver of counsel was voluntary is often entrely a matter of credibility and police officers will often be able to fashion their testimony to avoid a finding a statement followed an involuntary waiver of counsel prior to interrogation because the only other witness will be the defendant.

A bright line rule such as Jackson does serve, as Scalia notes, to prevent badgering. His sanguine off the cuff dismissal of the need for Jackson is non-existent because other rules trigger exclusion where badgering exists ignore the practical reality that is only true where coercion or badgering can be proven and the only evidence a deferndant has in most cases is his own testimony. with Jackson the questins to be answered were basically objective-- did the defendant have counsel and did the cops get him to talk without counsel.

This decision is inviting cops to badger witnesses and then lie about it at the suppression hearing. Jackson served to eliminate the incentive to badger and because it did not require proof of involuntary waiver also eliminated the need for police to lie where Jackson applied. (Even a single, polite and civil request to have a represented defendant submit to questioning invoked the rule.

: in the lasst sentence of the penultimate paragraph (none / 0) (#31)
by Bemused on Tue May 26, 2009 at 02:11:08 PM EST

that should be:
did the defendant have counsel or had he requested counsel...

But Roberts is a reasonable man . . . (none / 0) (#1)
by Big Tent Democrat on Tue May 26, 2009 at 10:23:48 AM EST

so spake Tom Goldstein in the article you linked to earlier.

: Shakespearean (none / 0) (#4)
by oculus on Tue May 26, 2009 at 10:30:16 AM EST

The dissent by Stevens (none / 0) (#3)
by Spamlet on Tue May 26, 2009 at 10:29:30 AM EST

amplifies his dissent in Bush v. Gore, where he said that the "loser" of the 2000 presidential election is "the Nation's confidence in the judge as an impartial guardian of the rule of law." Now the law has also gone by the board.

"mentally handicapped"red herring (none / 0) (#5)
by diogenes on Tue May 26, 2009 at 10:35:19 AM EST

Most defendents are not handicapped nor are they beaten by police. Are defendents more likely to tell the truth at a videotaped interrogation immediately upon arrest or after weeks of coaching by a defense attorney?

Making Steven's point (5.00 / 2) (#6)
by Big Tent Democrat on Tue May 26, 2009 at 10:40:02 AM EST

heck of a comment.

you might want to reread the 5th Amendment.


Defendants have no responsibility (5.00 / 2) (#11)
by tokin librul on Tue May 26, 2009 at 10:56:45 AM EST

to tell the truth.

The prosecution has the responsibility to PROVE the truth.

I am unalterably opposed to any expedient that gives the State more power. They will ALWAYS abuse any power given them.


: Better just not to talk at all. (none / 0) (#19)
by inclusiveheart on Tue May 26, 2009 at 11:39:04 AM EST

Lying can get you into trouble.
Better just to keep your mouth shut.

You heard it here (5.00 / 1) (#21)
by Claw on Tue May 26, 2009 at 11:48:55 AM EST

First, folks. Access to counsel makes defendants more likely to lie. Better get rid of right to counsel then, eh? I mean, if they're innocent, they'll just tell the truth to the jury themselves and be found not guilty. Problem solved!


Since we are (none / 0) (#32)
by JamesTX on Tue May 26, 2009 at 04:40:35 PM EST

going in this direction, wouldn't it be easier to just let the police make the statements for the accused, since the accused is going to lie and the police never do? Come to think of it, is all this trial stuff really necessary after all, given these new insights? I am thinking just plain old summary biblical justice would make much more sense. What is the point in all these quaint rules of law anymore, anyway? Let's streamline. It's a new century. 9/11 changed everything! Everybody knows police and prosecutors don't lie anymore. Defendants and defense attorneys always do. There is no longer any need to protect defendants from overzealous prosecution because, of course, there is no such thing! Why don't we stop with all the pretense and just get it over with. At least then those of us not privileged with power would know where we stand. There are too many of us out here who are wandering around daily thinking in terms of rights. Is it really fair to keep us under that delusion? Shouldn't we be told the truth?


How about dunking? That worked well at the Salem (none / 0) (#36)
by jawbone on Tue May 26, 2009 at 06:14:33 PM EST

Witch trials, iirc....


: Dick Cheney (none / 0) (#38)
by JamesTX on Tue May 26, 2009 at 06:34:32 PM EST

seems to think that's perfectly fine!

Gitmo goes domestic (none / 0) (#7)
by ChiTownMike on Tue May 26, 2009 at 10:43:40 AM EST

How long will the cop squads now brow beat and apply sleep deprivation to innocent people in order to force a confession prior to letting them see a lawyer? Will they push the time limits they must comply with to the max?

More innocent people going to jail for naught. A huge win for for the private prison profiteers.

I am a little (none / 0) (#8)
by eric on Tue May 26, 2009 at 10:44:58 AM EST

confused. The AP story says

The high court, in a 5-4 ruling, overturned the 1986 Michigan v. Jackson ruling, which said police may not initiate questioning of a defendant who has a lawyer or has asked for one unless the attorney is present.

However, as I read the case, the issue is really about a suspect that has not asked for a lawyer at all. Yes, one was appointed, but this case surely does not overturn the rule that once you ask for a lawyer, the questioning must stop, does it?

To answer your question (none / 0) (#22)
by lobary on Tue May 26, 2009 at 11:50:38 AM EST

No. I read the Court's opinion the same way you did. The Court overruled the "prophylactic" Miranda protections afforded criminal defendants represented by counsel unless they had actually invoked their Sixth Amendment right to counsel. The Court is basically saying that in order for subsequent statements to be deemed involuntary and inadmissible under the same circumstances, it's not enough to have a lawyer but to have actually asked for one.


Thanks (none / 0) (#27)
by eric on Tue May 26, 2009 at 01:21:31 PM EST

I looked at it again and I agree with your reading. I suppose I shouldn't rely on the AP to read cases for me...


I think (none / 0) (#29)
by Bemused on Tue May 26, 2009 at 02:03:08 PM EST

the crux of the decision is that Jackson is completely overruled. As I read it (and admittedly the opinions spend more time sniping at one another than explaining). Even if a defendant requests a lawyer in court at his initial appearance or arraignment (and whether or not one is appointed at the time), police may now still ask a defendant to speak to them and as long as the defendant then waives counsel for the purpose of that interrogation any statements will be admissible.

The stuff about some states automaticallly appointing counsel and the defendants in those states not making a request (thus invoking the 6th) is part of the justification for the new rule but not part of the new rule as I read it.

I think the new rule is that cops may seek statements from defendants who EITHER requested a lawyer or were appointed one by the court without a request and the statements will admissible now if the state can show the defendant waived counsel before talking to the cops.


After sifting through again (none / 0) (#41)
by Bemused on Wed May 27, 2009 at 09:03:26 AM EST

I'm ready to say the new rule is as I initially thought.

So, this could occur:

Person is arrested and brought before a magistrate. He affirmatively requests an attorney be appointed and the court immediately appoints an attorney to represent him. After the hearing, the cops ask if he is willing to speak with them.

He says, "but I was just appointed an attorny and have not even met him yet."

Cop says, "don't worry about that if you cooperate with us right away I'll tell the judge and work things out for you. You know we're really more interested in your buddy than you."

Defendant replies, "OK, I guess it won't hurt, I really didn'y know what was going down anyway."

Cops then read the rights statement and have defendenat initial and sign waiver stating he understands the right to remain silent is speaking volunarily and that he also understands he has the right to have counsel present but waives that right too.

Defendant gives detailed statement incriminating himself. Lawyer later moves to suppress. Motion denied.


interesting (none / 0) (#46)
by eric on Thu May 28, 2009 at 04:52:31 PM EST

I can see that. At a minimum, cops will try this now.


: not to shift the thread off topic (none / 0) (#47)
by Bemused on Fri May 29, 2009 at 07:11:52 AM EST

but these types of decision help illustrate what I think is the most damaging type of lack of diversity on higher courts in general.
I don't really care whether a judge or justice is a man or a woman or what race or ethnicity. While I think such factors may with some people have some small influence on perspective, I think that influence is greatly outweighed by actual, adult environment and experiences.
And, because the minority candidates who do get selected have mostly been conditioned and indoctrinated from years of striving to climb within the establishment which necessarily involves a great deal of pleasing the "right people" what we usually get is a darker or more feminine image of those "right people." An arguable vestige of racism and sexism is that white males today might actually have more freedom to be free thinkers and independent voices while still climbing in society (including the law) than anyone else. Minority groups and women might be appeased by selection of people who look more like them but appearances are sometimes just appearances. A latino, for example, whose experience is in corporate law or prosecuting may very well be a lot more attuned to the interests of corporations and prosecution than the interests of individual people facing the justice system.
On higher courts there is a lack of people whose backgrounds provide them with real nsight into the workaday realities of vast areas of the justice system. It's not just in criminal justice. Higher court justices with experience in family law practice, abuse and neglect proceedings, mental health/commitment proceedings, adjdication of smaller claims between individuals and small businesses, etc., are rare.
With criminal justice, to the extent people have any experience it is overwhelmngly experience as a prosecutor. The ones with attitudes more focused on defendant's rights and civil liberties tend to be much more often from academic background who don't always really understand practical considerations. They often do a poor job, even in dissent, of highlighting the problems or proposing better "solutions."
Even promoted trial court judges don't often come from among those who have distinguished themselves in areas of the law that most immediately affect individuals who have cases in court.
I'm not suggesting all or even necessarily most judges need to come from the ranks of solos or small firm practiioners who have spent careers representing individuals, but i do think we need many more on the bench, particuarly on higher courts where they are very rare.

No profanity please (none / 0) (#12)
by Big Tent Democrat on Tue May 26, 2009 at 11:01:55 AM EST

: I deleted that comment (none / 0) (#30)
by Jeralyn on Tue May 26, 2009 at 02:08:28 PM EST

for containing profanity.

Why confess? (none / 0) (#15)
by lobary on Tue May 26, 2009 at 11:18:31 AM EST

Ask Christopher Ochoa.

Those of us who haven't faced intense police interrogation have difficulty understanding how this happens, but false confessions obviously happen.

Do you live under a rock? (5.00 / 1) (#23)
by lobary on Tue May 26, 2009 at 11:53:39 AM EST

Police are very skilled at interrogation. These stories are hardly unique.


False confessions are not uncommon. (5.00 / 1) (#26)
by lobary on Tue May 26, 2009 at 01:00:33 PM EST

You asked an exceptionally naive (albeit common) question that I've tried to answer. Your life experiences and your lack of imagination are simply insufficient to answer that question.

I don't know why anyone would confess to something they didn't do, but I've never been under the intense psychological pressure of a police interrogation. All I know is that these false confessions are not exceptional. There are numerous examples of innocent people being sent to prison on the basis of a confession elicited by police that turns out to be false.

People are different. Not everyone is like you. Not everyone has the book smarts to invoke their constitutional privileges or the street smarts to know that law enforcement may not be on their side even when they say they are.


: Central park jogger? (5.00 / 1) (#28)
by gyrfalcon on Tue May 26, 2009 at 01:32:21 PM EST

Wasn't that one of those cases where these guys "confessed" under police pressure to one of the more horrible crimes imaginable, and then were substantially exonerated by DNA? Can't remember the details.
Point being it's precisely the most vulnerable-- poor education, low IQ, low social status, etc.-- that are likely to cave and confess to something they didn't do just to get the whole nightmare of police pressure over with.

You're gonna be in big trouble (none / 0) (#16)
by inclusiveheart on Tue May 26, 2009 at 11:35:32 AM EST

if you're ever picked up and your legal guidance comes from TV dramas.

You can say that (none / 0) (#34)
by JamesTX on Tue May 26, 2009 at 04:45:43 PM EST

several more times!


Yes, but (none / 0) (#35)
by jbindc on Tue May 26, 2009 at 04:53:26 PM EST

I wold bet anyone who watches any TV knows "You have a right to remain silent. You have a right to an attorney....."

Not saying that should be justification for overturning this, but apparently the current administration thought so, so who are we to question the wisdom of the greatest community organizer, turned Constitutional scholar turned President who would change the world?


I don't know... (none / 0) (#39)
by inclusiveheart on Tue May 26, 2009 at 08:21:40 PM EST

Every time I watch one of those cop/court shows, they catch someone and interview them - they always talk and then they convict them. They almost never have anyone who refuses to talk - that wouldn't make very good TV. I love the program "Cold Case" because every single time without fail they get the long lost criminals to confess their crimes. No one ever says, "I'm not talking to you." That would be bad TV and it would be an incovenience to the audience who want satisfaction within one hour of drama and advertising...


: ehhhh (none / 0) (#40)
by of1000Kings on Tue May 26, 2009 at 09:27:26 PM EST

when I watch first 48 or one of those shows none of the inner city kids ever asks for a lawyer before the cops grill them till their crispy..
I've always wondered why...has to be an education thing...maybe they just think that because they don't have a lawyer or don't have any money that they don't have the right to ask for a lawyer before answering questions...

Where do you live? (none / 0) (#33)
by JamesTX on Tue May 26, 2009 at 04:44:55 PM EST

Even they want to, they can't create eye witnesses or physical evidence.

Where I live, they can and do. At least they used to, when evidence was actually required.

DNA exonerates ANOTHER Texas convicted one (none / 0) (#42)
by DFLer on Wed May 27, 2009 at 09:28:29 AM EST

The original prosecutor speaks:

Chatman's story is tragically not unique. The staggering number of exonerations attest to just how easily the innocent can be convicted. Nationally, 225 people have been released from prison after DNA testing proved their innocence. Seventeen of them had been sentenced to death. Twenty DNA exonerations were from Dallas County alone, the most of any U.S. jurisdiction. The vast majority of those exonerated in Dallas County would still be in prison but for the fact Dallas preserved its DNA evidence.
As with so many of these cases, Chatman was convicted on the testimony of one eyewitness. Witness misidentification is one of the greatest causes of wrongful convictions nationwide, playing a role in more than 75 percent of cases with DNA exonerations.

so who should be charged with murder (none / 0) (#43)
by of1000Kings on Wed May 27, 2009 at 12:34:52 PM EST

in the cases where 'innocent' people were killed?

seriously...isn't that murder?


: actually it may be more manslaughter than (none / 0) (#44)
by of1000Kings on Wed May 27, 2009 at 12:37:02 PM EST

murder, considering one could argue about malice and whatnot..
I would hope that if I were put to death for something I didn't do that someone would be punished by the law...for the sake of my family