Virginia Coalition of Police
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The Right to Counsel, Weakened

Published: May 29, 2009
In a troubling 5-to-4 ruling, the Supreme Court has significantly weakened the Sixth Amendment’s right to legal counsel. The decision came in the case of Jesse Montejo, a Louisiana man sentenced to death for murder based on incriminating statements that he made when the police questioned him without his lawyer present.

Mr. Montejo was read his rights to remain silent and the right to counsel and answered questions from the police. At his preliminary hearing, the judge ordered a public defender appointed, but the police continued to question him before the lawyer arrived. He agreed to show them where the murder weapon was thrown.

Writing for the majority, Justice Antonin Scalia argued essentially that since Mr. Montejo had been read his Miranda rights, his continued answers were a valid waiver of counsel. Justice Scalia explicitly revoked the court’s 1986 ruling in Michigan v. Jackson that a prisoner could waive his rights to counsel only in the presence of the lawyer, or by initiating contact with the police.

That ruling recognized that many prisoners cannot knowingly relinquish their right to counsel unless a lawyer helps them understand the protections they are giving up and the jeopardy they face. Without any real evidence, Justice Scalia dismissed this approach as unworkable and wrote that “its marginal benefits are dwarfed” by the possibility that the guilty might go free.

An array of former state and federal law enforcement officials and judges, including both Republican and Democratic appointees, have reached the opposite conclusion. In an amicus brief, they said that the Jackson ruling “has done far more to promote effective law enforcement than to undermine it” and warned that abandoning its bright-line standard would make it harder to ensure that a defendant’s constitutional rights are respected.

In an angry dissent, Justice John Paul Stevens wrote that the 1986 opinion, which he wrote, was designed to ensure the right to counsel at every critical stage of prosecution. The court has now put the fairness, integrity and credibility of the justice system at unnecessary risk.