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

[swan1]

Missing the point Tom. This is to allow defendents to take "if" they want to. Sometimes they are willing to confess or talk, yet they can't until their lawyer comes on the scene. Many lawyers give unsound advice and cost time and money. As for being bamboozled, nah, not with a constitutional lawyer as the POTUS.

[MomfromTexas]

Right. They can still say they won't speak unless their lawyer is present.

[Michael7843853]

But if the police are allowed to deceive a suspect, offer up nightmare scenarios, hint that once the lawyer gets there the suspect is screwed, etc., that right to not speak can be convincingly portrayed as an impediment to the suspect's best interests, which it almost never is.

[PJX]

Fools who speak like this have never been arrested (or know someone close to them who has been arrested) and think the police are the good guys with honor, integrity, and all that bs.

This ruling needs to stand.

[MomfromTexas]

Many of you are talking about the 5th amendment and Miranda rights guranteed by the 5th amendment. That is not what is being discussed in this case. It is the 6th amendment that is being discussed, and one's rights after arraignment. The specific question appears to be that if someone has requested counsel at arraignment, should that counsel be necessary anytime that person is questioned by officers from that point on?

http://www.scotusblog.com/wp/wp-content/uploads/2009/04/us-amicus-in-montejo-4-14-09.pdf

[formerprosecutor]

some of the 6th flow from the 5th; look at jackson again

[greginwva]

Mom is right here I think.If a suspect speaks to police its his choice.If he tells the police he wants to consult a lawyer and remains mute thats his choice.If a person gives evidence against himself ,good for us the people.

[Dwight5]

Yeah, what if they're innocent?

[formerprosecutor]

Thanks for reposting this; I hope people do take the time to read it; I realize that to non-lawyers there ius a bunch of gobblity goop; but the last TWO paragraphs makes me think that Obama does know what he is doing.

[dirtyice]

The rich get richer all others get screwed.

[Tom Payned]

I voted for Obama because he was a law professor.

I'm been bamboozled. The tortures should get a pass because their crimes were in the past. They were just following orders.

Poor, disabled, non sophisticated people, who beleive the police are held to high standard in interrogation, it's fine for them to follow the instructions of an official.

People who have been wiretapped, had their emails monitored, privacy invaded, cannot obtain the information gathered unless they can show they've been harmed in some way. It's Orwellian thinking.

CEO's can't have their bonuses reduced or reminded because they have a contract. So they're free to take 700 billion dollars and do without whatever they please. No oversight at all.

Unions, who also have contracts, must tear up their contracts, agree to lower salaries give up their health care of their companies will not loans of a few billion dollars.

Regardless of what Mr. Obama does with the economy, health care, business reform, he's lost my vote and my on the ground support.

I now fear for him to have vacancies to fill during his first term.

[eahce]

So I take it you don't think of Obama as a rock star.

[Tom Payned]

He may very well be a rock star.

How many rock stars care more about their fans that can't afford to buy the Rock Start's albums or concert tickets, than they do about those who contribute to wealth of the Rock Star.

It's just like the difference how labor is being treated verus Wall St.

Wall St. has money, union laber is shrinking. Whose going to provide more funding at election time?

[SorenB]

Join the club, I was fooled by him too. The sad thing is it only took 3 months to figure it out.

I really hope there is a good Independent candidate for 2012, because it is obvious that both the Dems and Repubs are not going to change the system at all.

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

[canobserv]

okay ..........­..so you guys know that the defendant still has the right to remain silent....­..........­...right

[ThinkAgen]

Nuh-uh!

[Palemoon]

You are missing the point of the story... it does have to be about questioning at all really, it's about duping someone.

Example...­. guy is awaiting trial for a sex crime, he lawyer leaves the room for a bathroom break. While waiting one of the detectives says "Hey, want some reading material to pass the time?", and hands him a stack of women's magazines. A week later during the trial, the prosecution says "While interviewing the defendent, we noticed he had a strong interest in women's magazines when we asked him about reading materials.­"

Or use any example like that. The fact is, anything you say OR DO, can be used against you. Including doing nothing.

"Defendent showed no emotion when we were going over the gruesome details of the killings with him". Implying the defendent may have discussed it cooperatively and was not grossed out or in any way bothered by the gory details.

[ResistanceisFutile]

Let's not prosecute those involved in torturing. On the other hand lets further limit people's rights.

What is Obama thinking?

[eahce]

nwo

[Steven Anderson]

This is a big set back for sure. I am assuming that his happy go lucky honey period is gone. With this one I am sure that he will even have huge problems within his own ranks. Giving the State increased power over us is contradictory to what America was supposed to be all about.

[Tom Payned]

Part 2

4) If you have children that you need to attend to the cop will tell you you'll be able to get out of here more quickly if you'll talk with them even though you've invoked your right to counsel

5). The officers will start giving the detained details of the investigation that only the perpetrator would know. It will be repeated multiple times. They'll get the detained to start repeating those details. The officer will then start a audio or video tape and have the detained repeat back the details. The tape will be turned off.

6) The tape will be brought to a Grand Jury, the officer will play it, repeating that only the person who committed the crime would know these details. The detained and his attorney are not allowed to attend the Grand Jury, and in many states, like Oregon, all testimony before the grand jury is secret.

7) The DA will prosecute the case, and the defense attorney will have to advise the detained that whether or not he's guilty, a jury will hear that tape, the cops testimony and convict for of course, why would the officer lie, he's got nothing to gain.

I hope none of you are ever put into that situation. It's similar to a kid playing checkers going up against a world class chess player.

[Rule Of Law]

Tom, interesting to hear a bit about what you do. Some people here seem to think that this changes nothing. Others are outraged at Obama's position. How do you read what this is really saying?

Rule

[Tom Payned]

I am more than outraged. Obama ran on a platform of equality.

In U.S. Supreme Court case from 1895, Coffin v. U.S. In this case, Justice White, who delivered the opinion of the court, dated the doctrine back to Roman law. He quoted a Roman official who wrote that "it was better to let the crime of a guilty person go unpunished than to condemn the innocent."

One of our founding fathers, Benjamin Franklin wrote it is better a hundred guilty persons should escape than one innocent person should suffer.

I realize most people don't share this view.

However, we are supposed to be a moral & lawful nation.

Overturning a Supreme Court overturning a "land mark" precedent is practically unheard of.

Law professors are taught:

In extraordinary circumstances a higher court may overturn or overrule mandatory precedent, but will often attempt to distinguish the precedent before overturning it, thereby limiting the scope of the precedent in any event.

And so called law and order people wonder why so many people don't understand the law.

How many people will learn this right no longer exists?

Yet these same people will call the accused Stupid/

[ThinkAgen]

None of this changes the fact that this ruling provides a ridiculous loophole that has probably kept more criminals, rather than innocent people out of prison.

All interrogations in IL must be video recorded, this is an actual good idea, let the jury decide by watching first hand.

It is not a "right" to be protected from your own stupidity.

[Michael7843853]

"It is not a "right" to be protected from your own stupidity.­"

Actually it does. As Tom says, Jackson flows from Miranda and is a clarification. If we don't have a right to be protected from our own legal stupidity, why have a right to counsel at all?

[Tom Payned]

To Think again Part 1 of 2. You do have a right to be protect from stupidity.

People with an I.Q. of 70 to 50, the mildly retarded, do not have a grasp of the situation. They will try to appease a person in authority as they do not understand what agreeing with an officer can do i.e. a false confession.

The FBI has put out guidelines for their agents when they even suspect the person is low functioning, that requires the officer to contact an attorney for that party, as DNA tests have shown many of these people have plead to crimes they did not commit but wanted to please their interrogator.

This is an FBI practice, not a law, states, counties cities do not have to follow the FBI.

Your are lucky to live in IL. In OR, they are not no recordings required even Grand Jury testimony.

Now ask yourself, why must all interrogations in IL be recorded?

Most laws like that stem from a state's Appellate, or Supreme court decision where a case violated someone's rights. To keep even the air of impropriety, the court decision will provide guidance to prevent a similar occurrence. I suspect that happened in IL

What many outside the profession don't understand, is it is the job of a defense attorney, not to get someone off for something they did, but to make certain the rights of the accused are not violated.

[Tom Payned]

For if the accused is convicted, he has the right to appeal. This can lead to some very bad people getting a 2nd trial or a dismissal. So holding the state to the law is upholding your rights, those of your kids & grandkids.

So first & foremost the defense MUST protect the rights of everyone, even when the defendant as admitted his guilt. However, if the defendant wants to take the stand in his defense, the attorney must recuse himself as he may not facilitate or knowingly allow perjury.

I don't know the ages of many of the posters here, but prior to the case Miranda V. Arizona, in 1966, the cops were not required to advise a person of their rights. Imagine all of the legal immigrants, like many of our parents and grandparents, believing that in America, the authorities would never violate their rights.

Mr. Miranda was a Mexican national who obviously did not understand he had the right to counsel.

TV shows about cops back then would not have portrayed the right to remain silent or have an attorney appointed to you.

Part 2 ThinkAgen

We are a nation of laws. We are a nation that is supposed to treat the rights of everyone equally. Wealthy people can just call an attorney, people who have been in the system before learn that's their right.

But many hard working people, people who just moved here, LEGALLY, & our kids may not be aware of the rights afforded

[Dwight5]

How do you know that it's kept more criminals out of jail than innocent people? Do you know who is guilty or innocent?
Absolutely, all interrogations should be video'd but the camera should not be allowed to be turned on and off, otherwise the "facts" can be manipulated.
And, yes, it is a right to be protected from your own stupidity. That's the whole point of the Constitution and the Bill of Rights.

[Tom Payned]

As someone who works with Indigent defendants, I must say that I am appalled by Obama and those of you are being sarcastic and slamming the rights this important case provided.

The majority of cops are highly trained in interrogation techniques, the law, and creating a situation in which without giving an explicate promise of a deal, allow the detained to believe the officer will let the detained go and give them a deal if they talk.

1) Many of today's young people are not away they have the right to be silent, even though the Miranda warning is read. Trained officers will read it very fast than say something along the lines of "you understand that I can't help you if you have an attorney present. Work with me and you'll get to go home.

2) Officers cannot make a deal; Most people who've never actually been involved in the system do not know this. Additionally, an officer putting in a "good word" for you doesn't do you any much good if any.

3) When a majority of poor people ask for an attorney, it is common practice for a cop to throw them a phone book and say go ahead, hire yourself an attorney. The cops do not explain that when the detained is arraigned within three days, an attorney will be appointed to them at that time.

[naturallight]

i agree and the biggest problem is that young scared people will admit to things they did not do to make the interrogation stop. Really how many false confession cases or mostly black males exonerated of rapes they did not commit after being in the clink for 20 years?

The shameful thing is huffpo has categorized this as a "libertarian" issue.

[ThinkAgen]

Interrogations are much different now then they were 20-30 years ago, they can no longer beat the hell out of you. In your argument you are attempting to equate beating the daylights out of someone for a confession and trying to trick someone into an admission by asking tactful questions, which is absurd.

This is just a dumb rule, that's the bottom line, I would argue this rule has probably set more guilty criminals free then innocent people... If it has helped one innocent person at all.

[nominn]

Well, to be accurate, the Miranda warning includes a statement that counsel will be provided if the subject of the warning can't afford one.

[formerprosecutor]

Yes, SCOTUS says LEO's can lie to a suspect. and they do.

[mero909]

Yeah, I'd recommend NOT taking away people's rights.

[PCMinistry]

This is yet another huge shocker for me. I guess when I voted for Obama I should have actually considered what leftist philosophy is really all about, or maybe tried to see how it worked out throughout history, rather than getting all caught up in the moment and voting with my heart. I felt so good and smart at the time too...

[Michael7843853]

You called Obama a leftist; brilliant analysis of the topic. Wish I'd thought of that.

[solvseus]

Problem being that he isn't the leftist many believed he was. He's a moderate, always has been. I thought that was a good thing, but in some cases, it hasn't been. The only people surprised are the liberals who weren't paying attention during the election and believed the righties talking points, and the righties who also believed their own BS, who ironically enough seem to be criticizing him for things their own do that they defend.

This is a stupid thing, not sure what the excuse is even supposed to be, but I hope he clarifies, and better, doesn't go through with it as it stands.

[Tom Payned]

PCMinsitry,

I feel your pain, sorrow, and disappointment. I voted for him because he was a law professor.

[erglro]

Lament mode on:

When did being an American who believes in the American constitution, mean you were a "civil libertarian"?

When did supporting the rule of law make you a member of "the left"?

When did protesting runaway deficits and the unconstitu­tional/ill­egal income tax on labour make you a member of "the right"?

Labelling any source of protest instantly demeans it. I expect this out of the partisans (e.g. parties), but it's sad to see so many, if not all, media playing now guilty of this editorial method.

I'm an American who believes in America, plain and simple. What box do I go in?

Lament mode off:

Please remember, Mr. Obama, I supported and campaigned for you to be President, not King.

[rbspickles]

I couldn't have said it better myself. Good post!

[TallyLass]

erglro

Very well said! I agree 100%.

[MomfromTexas]

Then you will agree that the Justice Department works by itself and should not be ruled by President Obama and his personal opinions on law, as the Bush administration tried to do?

[formerprosecutor]

You know I really like the fact you are invloved in this issue, however you realize your sugeestion would mean that we would have to funadmentally change the Constitution and the separation of powers.(?)

I am curious why you think that the president should not be our chief law enforcement officer?? and who would? whoud you craete another branch? I just don't understand your objection or why

[formerprosecutor]

How does this make Obama a "king"; that is role as head of the executive branch of government

[paganmist]

Okay, I'm going to try this one more time to see if I understand it.

The Jackson ruling is not only redundant (by providing protections that already exist), but then goes on to hinder prosecution when a defendant seeks to voluntarily offer information (for example, when they want to offer information on a *different* criminal proceeding) by invalidating any and all information received, if it was received without counsel present, AFTER counsel has been requested.

Did I get it?

[stin66]

Yes in a way, but if the defendant initiates the talks with the police then they are admissible. The reason for the Jackson ruling was that once you have asked for counsel and then you later confess, without the attorney present and you didn't initiate the conversation with the police, then the specter of police coercion is too high and that the confession was not truly voluntary.

I think Miranda and its progeny (which includes Jackson) are pretty good articulate decisions, even if the more conservative justices like to call them prophylactic rules, that are very easy for the police to follow and can lead to more admissible confessions.

[Michael7843853]

No; not unless you are reading a different article. You just threw in that 'different proceeding' aspect to cloud the issue, didn't you?

[stin66]

Actually the Miranda right to counsel that was in question in Jackson applies to all proceedings. If you don't invoke your miranda right to counsel but at your arraignment do invoke your right to counsel, then you are invoking your 6th amendment right and that only applies to the charged offense.

[J G H]

I sometime wonder about some of the Cops epsodes in which the police arrest someone and continue to talk to him, asking him incriminating questions after he has said he wants a lawyer. Police are better trained these days and should stop asking questions.

On the other hand, there was a case in which a murder suspect who had asked for a lawyer was being transported to jail led the police to the body of his victim after the cop remarked that it was starting to snow which meant they would not find the girl;s body until spring. I regard this as borderline, but really, an appeal to the defendant's better nature is really the first step in rehabilitation, which most lawyers would inhibit.

[JnrNorman]

Eric Holder argued in court nobody in America should have handguns.
Now Obama openly wants us to less freedom like Bush!

http://www.chemtrailcentral.com/forum/album_showpage.php?pic_id=1mode=next&slideshow=5#TopPic

[Kassandra]

Hand guns are useless; give me a shotgun any day.

[Rule Of Law]

and as long as you have powder, your reloads can be comprised of just about anything, in a pinch.