SCOTUSblog reports a disappointing development: the United States of America, through Obama Administration's Solicitor General, is arguing that law enforcement should be allowed to question suspects even after they have had lawyers appointed for them. As SCOTUSblog explains:
"The U.S. Solicitor General, speaking for the federal government, urged the Supreme Court on Tuesday to overrule its 1986 decision in Michigan v. Jackson. Seeking to assure that the right to counsel is not lost during police interrogation, the Court ruled in Jackson that, once an accused has claimed that right in court, any waiver of that right during police questioning would not be valid unless the individual initiated communication with the officers."
The Government's amicus brief was filed in the case of Montejo v. Louisiana (07-1529), which was argued last January. The Supreme Court, in an unusual move, asked for supplemental briefing on whether Jackson should be overruled. The Obama Administration said it should, explaining:
“Although the Sixth Amendment affords criminal defendants a right to counsel at certain critical pre-trial stages, the Amendment should not prevent a criminal defendant from waiving that right and answering questions from police following assertion of that right at arraignment. Jackson serves no real purpose and fits poorly with this Court’s recent precedent; although the decision only occasionally prevents federal prosecutors from obtaining appropriate convictions, even that cost outweighs the decision’s meager benefits.”
The answer to this argument was put rather well by Justice Souter and four other members of the Court just last Monday. In Corley v. United States, the Court refused to overrule another longstanding rule -- the exclusion of confessions taken when the suspect has been detained for an unreasonable amount of time without being taken to Court for an initial appearance. [Note: this is called the McNabb-Mallory rule]. The Court's majority opinion, written by Justice Souter, said:
"In a world without McNabb-Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, and we have always known what custodial secrecy leads to. No one with any smattering of the history of 20th-century dictatorships needs a lecture on the subject, and we understand the need even within our own system to take care against going too far. Custodial police interrogation, by its very nature, isolates and pressures the individual, and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed, see, e.g., Drizin & Leo, The Problem of False Confessions in the Post-DNA World, 82 N. C. L. Rev. 891, 906-907 (2004). "
Justice Frankfurter's point in McNabb is as fresh as ever: "The history of liberty has largely been the history of observance of procedural safeguards."
Thanks, Justice Souter. In real life, unlike Law & Order, law enforcement can not be sure they have the right suspect. Letting them question someone in custody after they already have a lawyer -- which violates the whole raison d'etre of the right to counsel -- leads all too often to the conviction of the innocent.
This is a very distressing sign that it's "business as usual" at the Obama Justice Department -- that it's more important to show solidarity with prosecutors than it is to seek justice. What a shame.