Obama Legal Team Wants Defendants' Rights Limited

WASHINGTON — The Obama administration is asking the Supreme Court to overrule long-standing law that stops police from initiating questions unless a defendant's lawyer is present, another stark example of the White House seeking to limit rather than expand rights.

The administration's action _ and several others _ have disappointed civil rights and civil liberties groups that expected President Barack Obama to reverse the policies of his Republican predecessor, George W. Bush, after the Democrat's call for change during the 2008 campaign.

Since taking office, Obama has drawn criticism for backing the continued imprisonment of enemy combatants in Afghanistan without trial, invoking the "state secrets" privilege to avoid releasing information in lawsuits and limiting the rights of prisoners to test genetic evidence used to convict them.

The case at issue is Michigan v. Jackson, in which the Supreme Court said in 1986 that police may not initiate questioning of a defendant who has a lawyer or has asked for one, unless the attorney is present. The decision applies even to defendants who agree to talk to the authorities without their lawyers.

Anything police learn through such questioning cannot be used against the defendant at trial. The opinion was written by Justice John Paul Stevens, the only current justice who was on the court at the time.

The justices could decide as early as Friday whether they want to hear arguments on the issue as they wrestle with an ongoing case from Louisiana that involves police questioning of an indigent defendant that led to a murder confession and a death sentence.

The Justice Department, in a brief signed by Solicitor General Elena Kagan, said the 1986 decision "serves no real purpose" and offers only "meager benefits." The government said defendants who don't wish to talk to police don't have to and that officers must respect that decision. But it said there is no reason a defendant who wants to should not be able to respond to officers' questions.

At the same time, the administration acknowledges that the decision "only occasionally prevents federal prosecutors from obtaining appropriate convictions."

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The administration's legal move is a reminder that Obama, who has moved from campaigning to governing, now speaks for federal prosecutors.

The administration's position assumes a level playing field, with equally savvy police and criminal suspects, lawyers on the other side of the case said. But the protection offered by the court in Stevens' 1986 opinion is especially important for vulnerable defendants, including the mentally and developmentally disabled, addicts, juveniles and the poor, the lawyers said.

"Your right to assistance of counsel can be undermined if somebody on the other side who is much more sophisticated than you are comes and talks to you and asks for information," said Sidney Rosdeitcher, a New York lawyer who advises the Brennan Center for Justice at New York University.

Stephen B. Bright, a lawyer who works with poor defendants at the Southern Center for Human Rights in Atlanta, said the administration's position "is disappointing, no question."

Bright said that poor defendants' constitutional right to a lawyer, spelled out by the high court in 1965, has been neglected in recent years. "I would hope that this administration would be doing things to shore up the right to counsel for poor people accused of crimes," said Bright, whose group joined with the Brennan Center and other rights organizations in a court filing opposing the administration's position.

Former Deputy Attorney General Larry Thompson and former FBI Director William Sessions are among 19 one-time judges and prosecutors urging the court to leave the decision in place because it has been incorporated into routine police practice and establishes a rule on interrogations that is easy to follow.

Eleven states also are echoing the administration's call to overrule the 1986 case.

Justice Samuel Alito first raised the prospect of overruling the decision at arguments in January over the rights of Jesse Montejo, the Louisiana death row inmate.

Montejo's lawyer, Donald Verrilli, urged the court not to do it. Since then, Verrilli has joined the Justice Department, but played no role in the department's brief.

Comments

[Benton]

The Supreme Court decision (two weeks ago) restricting the right of police to search an automobile when making a routine traffic stop is way, way, way more important than this case. It is definitely an expansion or our right to privacy. This is not a game. Our rights are to be fought for with dead eye sobriety and accuracy if we are to keep them. Hyperbole, exaggeration, and sloppy analysis weakens our ability to preserve and expand our rights.

While "the people" respond by flailing about and gnashing their teeth monied interest methodically dismantle this country to reflect a smorgasbord of policies that further their selfish interest.

[sam77g77]

Obama Watch as a present

What do you think??

http://www.facebook.com/pages/Obamas-Watch-Presidential-Watch-Company/70634787599

[MomfromTexas]

So, why is the Obama administration interested in this decision? Gitmo? Bagram? Drug Cartels?

[AbbieXHoffman]

Exactly. It's all about detainees. There is so much pressure from the left to treat detainees like any American. Perhaps there should be different rules for detainees so it doesn't hurt the rest rights of tax paying Americans.

[seejake]

One more notch down on my trust meter. Wire-tapping. States secrets. Not prosecuting torturers.

Obama is dangerously close to becoming my enemy. I'll be keeping a log of this and see how it influences my vote in 2012.

[Querent]

At least he's not a Republican. But I'm spam blocking his continuous requests for contributions, and my political efforts in the coming elections will be on behalf of progressive candidates--- not President Obama.

[milo9]

There will be a group forming to make Obama do the right thing and I believe he'll listen.

I don't know yet who'll be leading the charge but there is no doubt in my mind that there will be pushback.

I hope all the civil liberty congnoscenti will join up and not just sit back and complain.

[SorenB]

http://www.scotuswiki.com/index.php?title=Montejo_v._Louisiana

"Based on this evidence, the police conducted a lengthy interrogation of Mr. Montejo, who produced seven distinct explanations for and descriptions of the crime. After about five hours, Mr. Montejo requested an attorney. The detectives immediately ended their questioning; however, on their way out of the room one detective informed Mr. Montejo that the request had “let [the detective] down.” Ten minutes later a video camera recording the interrogation was turned back on, and it captured Mr. Montejo’s sobbing revocation of his request for counsel. The detectives later claimed Mr. Montejo “beg[ged]” them to allow him to reconsider his request for counsel..
The detectives read Mr. Montejo his Miranda rights, which he agreed to waive, and proceeded to question him about the crime without his counsel present. During this questioning, Mr. Montejo wrote a note to Mrs. Ferrari in which he apologized for murdering her husband and indicated that he had only intended to commit a “simple burglary,” which in Louisiana is a technical legal term that describes a particular level of offense within the penal code. The detectives testified at trial that Mr. Montejo spontaneously produced the letter. However, Mr. Montejo testified that the letter was dictated to him by the detectives."

Still think an attorney wouldn't have helped?

[formerprosecutor]

I never said that, so I hope you weren't directing that at me. The shoe doesn't fit. My personal standard is written waiver before counsel and after they invoke desire to have counsel there , live and in person, before any statements. Following those rules have never harmed any prosecution I have had in 30 years.

I don't want anything overturned or appealed on that basis; besides I believe in our Constitution

[SorenB]

No it wasn't aimed at you, it was aimed at those that think those that are charged are assumed guilty.

I have never seen a reason that anybody would want to sign a waiver to counsel even when counsel is being provided.... why would they want to do that?

"I voted for Obama and all I got was this lousy bailout."

[take10]

You are both full of crap! Tampering with this law is about as sane as torturing a kid who pissed in his diaper! What makes this such a priority? If the President pursues this ill advised agenda, he deserves to lose the support of people who believe in freedom from self incrimination. When you learn that someone you love has been coerced into confessing to a crime which you know for a fact they did not commit, you'll wish Miranda was still in effect! Then again, it could be your tail on the line!

[abouttime]

The Supreme Court's ruling will decide whether we will become a full fledged POLICE STATE. Overturning the long-standing law that stops police from initiating questions (unless a defendant's lawyer is present), will guarantee our status as enslaved citizens.

Cooperation of a citizen in dialogue with a police officer determines the outcome of an investigation that is being conducted by an officer. Any questions they have for me had better be related to the reason they stopped me. I would refuse to answer if the officer's motive is not clearly stated and then only if it is pertinent to an impending crime or stop.

We are all free. The degree to which we resist is the degree to which we are free.

[formerprosecutor]

ohhhhh
this case is about "waiver"

[redfrog]

Never talk to the police. They have a "you're a criminal" mindset the minute they arrest you, an agenda that has nothing to do with your best interests, and are pressured to close cases as fast as possible. Those of us who did not know this before had best get with the program now.

[Palemoon]

That's all too true, and sad that we allow it. I remember watching a police tech show on Discovery channel a few years ago. Camera crew and host were allowed to sit in on the morning police briefing with the unit they were going to be with filming pieces for the show. The female captain giving the briefing ends it by saying "Remember guys, it's us vs them".

I wanted to jump off the couch and smack her across the face. That is pathetic that they behave in such a way. It reminds me also of my fave sci-fi movie "Bladerunner" where Dekard's boss reminds him "You're either a cop, or you're little people".

It's that same mentality that fuels and encourages much of the police abuse, and legal system abuse, that we are seeing so much of. It needs to stop and we need to need to back control of the reins. They are our servants, just like our politicians are.

[Tom Payned]

As in any profession, there are good peace officers and bad.

My best friend is a Lt. of San Diego County Sheriff's

His advice to his deputies was always simple. Don't assume the suspect is the perp/ or the complaining witness is the victim. Doing so taints your perception. Your job is to investigate, gather all of the information you can, inculpartory or exculpatory, write up your report and forward to the DA's office. If you allow your bias to affect how you gather and process information, you are not serving the public's interest. That's our function, the objective gathering of evidence. If you've made up your mind beforehand it will taint your investigation, as you may not followup on leads or evidence that were only available at the time and place of the incident. Deciding guilt or innocence is the court systems job, not ours.

I have a lot of respect for my friend.

Just as painting every accused with a broad brush is counter to our system, putting all officers into a negative light is an insult to the vast majority who try to uphold the standard we'd expect if we were accused.

[Palemoon]

Since I replied also, wanted to say that you sound like your friend is doing it the way it should be done. Obviously, being in law enforcement isn't easy by any means I'm sure. I just dislike the fact that some get jaded, or corrupted to the point that they lose that objectivity. And I guess that's the point of my reply. Except you said it better than I did. ;o)

[redfrog]

We have a different view of what constitutes being insulting, fella. I know "good" cops, too. I also was on the committee that set up the fire and police review commission in our city and served the first term on that commission. I probably have more experience with this than you do. Don't talk to the police. Wait for your attorney. Protect your rights proactively.

[Dwight5]

Redfrog is ABSOLUTELY correct on this. Good cop/ bad cop has nothing to do with it. When accused or suspected of a crime, DO NOT talk to cops without a lawyer present or you'll wish you wouldn't have. The average person has no idea how to navigate the legal system and your attorney is your guide.

[SusanStoHelit]

Right now, if some guy has a lawyer, goes to the police department, says, "I can't take it any more, I want to talk", and a police officer asks, "OK, so what happened?" - even if the guy says, "I tortured the little girl, ate her heart, let me lead you to where i buried her" - none of it can be used, if they don't have other evidence, he gets let go, even though they know he is guilty. That's not right. The rights of the defendants, suspects have to be balanced with society's need for a reasonable ability to investigate a crime.

[formerprosecutor]

fortunately , our body of law, does not agree with you (and just FYI a confession, without other evidence is worthless)

[Tom Payned]

Here are two problems with your argument.

Both are decisions which only serve to muddy up the process.

Fellers v United States.

A unanimous Supreme Court today ruled that incriminating statements provided to police before he was Mirandized were inadmissible even after the suspect reiterated the statements following a proper Miranda warning. John Fellers was confronted by police in his home after a grand jury indicted him on drug trafficking charges. Before he was Mirandized, Fellers made several incriminating statements and was arrested. He was Mirandized in the jailhouse and repeated his statements. He later claimed the statements should be stricken because he made them before he was Mirandized and before he'd had a chance to talk to his lawyer. The case further cements the need for police to Mirandize suspects prior to any questioning.

Mr. Feller's case many might perceive as having made bad law. But the police were now given guidance on how to keep this situation from reoccurring. Turn on a recording device & tell a suspect his rights.

[Tom Payned]

Yarbough V Alvarado.

Supreme Court sides with police in Miranda case
In the second of several cases touching on the Miranda warning this session, the Supreme Court today narrowly sided with the police. In a 5-4 decision, the Court ruled that because Michael Alvarado was not under arrest and was free to leave at any time, he did not have to be Mirandized, even though his interrogation took place inside a police station. Alvarado was being held under suspicion of a role in a murder. He was later convicted. Alvarado was 17 at the time. Justice Stephen Breyer, in his dissent, wrote that a reasonable person would not have felt free to leave the questioning at any time. The Court decision noted that age was not a factor in its decision.

[mooklyn]

I hope they make it illegal for Police to threaten you with rape or assault-by-proxy via the prison system. They use the tactic to scare up confessions from non-violent people and new offenders (who aren't familiar to the game). Just because they are not the rapists, they are still conspiring to have you raped or assaulted, knowingly allowing it to happen in their jails and prisons. I hate it when TV cops pull that crap- it's sick.

[formerprosecutor]

I havesaid this a dozendifferentways, but :

I am going to go wayway out on a limb here. I think they want a rulingto know where everyone stands on this issue: when , if any time , can LEOs talk to a defendant without his lawyer orlawyers permission.

we all need to know hoiw to proceed; the line needs to be brighter; and this is a goodcase to use, because the cops were extra tricky here and it is a capitalcase.

i am thinking, that if SCOTUS rules that adefendant has to make a clear, knowing waiverbefore thecops can talk to them, that will settle this; silence or agreeing to talk without notfying the lawyer, won't work.
( I just don't know how they could rule otherwise)
They are not going to say (not even this court) that cops can intiate with a lawyered up defendant without a clear, knowing waiver or the lawyer being informed. there areother details. but I think "Justice" wants a bright line (and so do the rest of us)
look for legislation, if the ruling allows a free for all in questionin­gdefendant­s after they have lawyered up. or said , yet another way: can a defendant waive his right to have his attorney present just by his silence? How clear does the waiver have to be? Doesthe attorney HAVE to be notfied, the client waived his rights?? we need to know these things. Remember , this man is on death row; this isn't merely academic.

[SorenB]

The bright line is already there... overturning Jackson just turns it off...

Let me give you a scenario:

1. Officer Mirandizes suspect
2. Officer asks if they understand their rights
3. Suspect says yes, and that he/she wants an attorney
4. Normally all questioning has to stop, but if the Jackson gets overturned...
5. Officer then accuses the suspect of the crime, expanding on any evidence they may or may not have, and how long they are going to be in jail. Officer begins telling the suspect that they can hold them for the rest of their life until they get a real answer...
6. Uneducated suspect begins to talk out of fear, wanting to help, you pick, it all becomes admissible

I don't see any real reason to do this.... The Obama team hasn't said why they feel this is necessary.

"I voted for Obama and all I got was this lousy bailout!"

[formerprosecutor]

this is not academic; have you read the state court decison on Montejo

use his sceanrio and get back to be because I am not going to write it all over again

but Montejo NEVER asked for his attorney even though one had been appointed for him

SO?? what then??

[Tom Payned]

If you are right, I don't think this is the right court to argue it before. They've shown a propensity to put a lot of holes into Miranda, search and seizer, exigent circumstance.

Officer Safety has become the defacto response for the majority of traffic stops, when the cop has a suspicion of possible possession, based upon prior contact.

And 04's

Yarbough V Alvarado.

Supreme Court sides with police in Miranda case
In the second of several cases touching on the Miranda warning this session, the Supreme Court today narrowly sided with the police. In a 5-4 decision, the Court ruled that because Michael Alvarado was not under arrest and was free to leave at any time, he did not have to be Mirandized, even though his interrogation took place inside a police station. Alvarado was being held under suspicion of a role in a murder. He was later convicted. Alvarado was 17 at the time. Justice Stephen Breyer, in his dissent, wrote that a reasonable person would not have felt free to leave the questioning at any time. The Court decision noted that age was not a factor in its decision.

What's disturbing is the 5-4 decision. We've lost a liberal judge since then. Bush's two appointees make me nervous.

[Destin]

http://www.usatoday.com/news/nation/2003-09-10-dna-dupes_x.htm

http://www.sageofspringfield.com/argument/deception4.html

I think people should read that article along with how-to instructions in the other link. What Obama's team is doing, is not anything to do with the miranda rights or other rights as one poster pointed out. It's about them knowingly trying to circumvent legal traditions and laws.

I'm agreeing with some posters, this is not only a boneheaded move by Obama's boys, but downright stupidity and arrogance. As another poster reminded us, nobody is above the law. Not even the DoJ officials or the President.

[Querent]

Well, if President Obama has his way, the CIA IS above the law.

[longhorn0308]

Ok everyone...ease off the panic button. This is the way the system works. Government lawyers push to make prosecutions more easy, while defendants and their lawyers (backed by great organizations like the ACLU) push back. After zealous advocacy from both sides, the courts step in and set the rules.

This is how its always been, this is how it will always be. The fact that the Obama administration is now on one side of this argument doesn't mean that they've abandoned us. Obama's prosecutors are just doing what prosecutors always do (and what our system demands they do), push for more convictions. Let's wait for the Supreme Court ruling before we all pass judgment.

[Michael7843853]

The administration is attempting to change policy(i. e. the law as it should be interpreted) not win a particular case. The adversarial paradigm is , at best, compromised(or should be) at this level. Rating the efficacy of a judicial system on it's number of convictions is hardly a way to justice.

[formerprosecutor]

Do you really beleiev that Obama wants an "outcome detrminative" policy within the DOJ?

really?

could they have a totally different agenda?

[longhorn0308]

The administration can attempt to change policy all it wants. It cannot change the law on this issue (currently Michigan v. Jackson). The only way to change the law on this is to win a particular case. The adversarial paradigm is operating as it should.

[DofG]

At any rate, anyone who knows anything about Obama's background knows that he, if fact, chose Eric Holder to specifically rebuild the civil rights division of the DOJ, among other things, knows that this would be antithetical to everything that he stands for. It's just unfortunate that the news business has become nothing but a business, while objectivity is in exile.

Do your own research. Think for yourself. Then, wait and see!

[formerprosecutor]

Exactly; the last paragraph in the Government's amicus brief; could be in the Defendants brief. That tell me an awful lot.

[Dwight5]

You are so wrong. One of the biggest problems in the country today is out of control prosecutors. You won't know what I'm talking about until they get YOU in their sights. An individual just does not have the resources to fight the government. It's not a level playing field and only becomes one when the government protects the rights of it's citizens. Obama lost me a little bit when he didn't order the Solicitor General to support prisoner rights to DNA evidence, and he has now completely lost me as a supporter. He's gone over to the dark side.

"Our system is not one based on trust, but on suspicion." - Thomas Jefferson

[ThinkAgen]

Take responsibility for your actions.