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

[ebanks84]

Mark Sherman should be ashamed of himself for writing such a biased article and getting people all upset wrongly. He should write an apology to these people for blaming Obama for something he is NOT doing. I am appalled and refuse to read anything else that he writes until he apologizes.

[mitsie]

You sure are right on that.

[williamg]

The AP has really gone into the dumps since Fournier took over.

[DodgeCounty]

The very first paragraph of the article is highly misleading.

[urgk]

Could somebody with editorial authority please change the headline of this post to something less anti-Obama and inflammatory? I mean, come on --

"Obama Legal Team Wants Defendants' Rights Limited"

Obama's team has made the decision to support a change in the current legal system. That does not give this reporter the right to insert his own opinion into the article. Nowhere does he prove that the ruling would limit rights, just that there is debate on the issue. Further, his line in the first paragraph which states "another stark example of the White House seeking to limit rather than expand rights" is neither proven by his article, nor journalistically balanced.

Thanks.

[mitsie]

Thank you for speaking out. All the media is anti President, just wanting to see our first black President fail. That's the bottom line.

[KoolAidAmerica]

Hope , change.

[Spiderxx1]

President Obama is not trying to take away our rights. This heading is wrong and the story is incomplete. I suggest that any of you that are interested in the truth, simply google "Michigan v Jackson" and read about the case without the slant of a reporter trying to get our attention for his article. President Obama is fair, read and think for yourself.

[ebanks84]

AMEN.

DID YOU HEAR THAT EVERYBODY? Read the truth without a biased tagline.

[Tkevan]

I read that decision as SCOTUS held that a confession made after arraignment and request for counsel, if gained without counsel present, is invalid ..if the police initiated interrogation.

A reversal of this would be that a police initiated interrogation, whether the counsel is present or not, which led to incriminating statements or a confession, would be held in evidence.

Please explain my error.

[formerprosecutor]

Finally, the State maintains that each of the respondents made a valid waiver of his Sixth Amendment rights by signing a postarraignment confession after again being advised of his constitutional rights. In Edwards, however, we rejected the notion that, after a suspect's request for counsel, advice of rights and acquiescence in police-initiated questioning could establish a valid waiver. 451 U.S. at 451 U. S. 484. We find no warrant for a different view under a Sixth Amendment analysis. Indeed, our rejection of the comparable argument in Edwards was based, in part, on our review of earlier Sixth Amendment cases. [Footnote 9] Just as written waivers are insufficient to justify police-initiated interrogations after the request for counsel in a Fifth Amendment analysis, so too they are insufficient to justify police-initiated interrogations after the request for counsel in a Sixth Amendment analysis. [Footnote 10]

Page 475 U. S. 636

[formerprosecutor]

and even fobrbes picke dthis story up in it's entirity; does anybody (journalis­ts)actuall­y research for themselves anymore??

[paganmist]

Let me just give kudos to formerprosecutor. He/she/it is sharing all the information they know about the law with us, despite the fact that most of us don't get it (and *some* of us don't seem to *want* to get it.)

I am going to bow to what I perceive to be higher knowledge and say that this article is probably mountains out of molehills.

Given the fact that the writer uses a line such as, "another stark example of the White House limiting..­." - I'm going to guess that the writer has a bias of some kind, which automatically makes the content suspect.

HuffPo, please give us a new article on this topic, written by someone who doesn't obviously have something to gain by portraying this legal move as negative and conspiratorial.

[javaz]

I hope you are correct.

If this is true, it is shocking.

[ebanks84]

Whew! A sound mind speaks :). I totally agree and that's probably why so many are reading this article in a negative light. You are so right. Please honor us with a new article HuffPo!

[youngat80]

And when you do print a new, unbiased article please have an unbiased headline AND a better picture of the President. The picture used for this article is a color that has never been used in any other picture that I have seen. That alone is prejudicial.

[ebanks84]

Thank you. No wonder it's been so hard to explain this article to some of us. I didn't take in the bias texture of the article, I read the meat of what it was saying.

[Spiderxx1]

I agree.

[formerprosecutor]

Here is what I think will happen. The Court is not going to "overturn" anything. Just likje all the progeny of Miranda; which there is a great deal. This case will be decided on it's own fact specifc issues. I think the LEOs in the instant case wre "wrong" and did violate his rights; but only if you take a broad view as the Court did in Michigan V jackson. Thedevil is in the details.

cite from that case:
"For that reason, it is the State that has the burden of establishing a valid waiver. Brewer v. Williams, 430 U.S. at 430 U. S. 404. Doubts must be resolved in favor of protecting the constitutional claim. This settled approach to questions of waiver requires us to give a broad, rather than a narrow, interpretation to a defendant's request for counsel -- we presume that the defendant requests the lawyer's services at every critical stage of the prosecution. [Footnote 6] We thus reject the State's suggestion that respondents' requests for the appointment of counsel should be construed to apply only to representation in formal legal proceedings. [Footnote 7]

[AbbieXHoffman]

I am surprised BO would even bother with this. This is something that is not really a legisltative issue in my opinion--it's a judicial issue and should be decided during the regular process of case law. If someone wants to challenge this law, they should do it through the court system. It shoudln't come from a Presidential directive, in my opinion.

[MsLiz]

Read the commentary, you are misinformed.

[AbbieXHoffman]

If you're going to criticize a post, you may want to put more detail into it that that.

[formerprosecutor]

The President directs Justice; he has asked Justice to weigh in on this case.

[AbbieXHoffman]

NO--the President does NOT direct justice. Justice is to be weighed in a court of law, NOT directed. This is NOT a monarchy?

[ContraEgoiste]

Which makes the action more suspect, IF the article is correct.

[ebanks84]

The article is biased and that's sad.

[Kaves]

Look at all you traitors. Bush got to have the time of his life power grabbing for eight years and now you're going to try and say Obama doesn't deserve to have the same kind of fun?? He's a democrat! It's your time now!!! Support the police state takeover now, save the whining for the next time a Repub is in office.

[vinny]

alex jones, is that you?

[ConservativeHippie]

It can't be. Alex would be YELLING.

[javaz]

I voted for Obama, and as an Independent, I am shocked by President Obama wanting to limit civil rights.

I'm shocked by this and wondering what Obama is thinking?

[ebanks84]

You voted for a wise man who is trying to protect your rights.

[Spiderxx1]

Read the case "Michigan v Jackson" for yourself and you will realize this article is implying the wrong thing about President Obama.

[nicole44]

well, one way to avoid this is to not do anything that warrents you being taken into custody. Why should you have those sort of rights when you have violated someone else's? besides if you were innocent then you wouldn't mind being questioned, right?

[ConservativeHippie]

Wrong. Since I am innocent I don't want to be harassed.

[nicole44]

well apparently you people's tounge-in-cheek radar is turned off today.

although i do have to say, if someone confesses to a (m)urder while the lawyer is in transit, should that be thrown out just because it wasent infront of a lawyer? they are slimey people (some of the lawyers) and they would do anything to win a case and that includes telling the person to pled not guilty anyways.-t­hat was not snark, just a serious question.

[MsLiz]

OMG.

[vinny]

facepalm

[javaz]

You do realize that there are people falsely arrested, right?

I can't believe that our president would deny a person charged with a crime, the right of having an attorney present.

I'm shocked.

[ebanks84]

You have not read the article correct. Obama is NOT taking away your rights, he is protecting that right of which you speak.

[formerprosecutor]

I hope your tongue is firmly in your cheek.


My rough guess, is that 100 people are questioned by police and maybe about one of those end up in an arrest and prosecution

[Okieborn]

Oh Boy I worked hard volunteering for President Obama as Millions did, I trusted his promises !!
Looks Like another Mess !!!

[fredamae]

maybe not, Some Legal Profession­als/Schola­rs are weighing in here, Lets see where this goes and Learn, before we Jump off the Ship. I "knee-jerked" on this myself...b­ut now I want more information.
The Millions that voted for Obama cannot ALL be wrong.

[vinny]

if we take the article at face value, i would say obama has some really misplaced priorities­... i really am at a loss for why this would be something he would want to pursue....

[KoolAidAmerica]

Just as the millions who voted for Bush.

[paganmist]

Oh, stop lying.

[k6007]

[chuckling]

[urgk]

What if you worked just as hard questioning the AP story?

Read the first paragraph. Does it sound like journlistic, unbiased reporting to you?

"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."

Just that first part is loaded with enough judgmental, partisan, non-objective crap that it would earn an "F" in any high school journalism class.

Keep working for Obama...if only by thinking when the media bashes him.

[MsLiz]

Good point. The AP has juiced up the story.

[HomerJFong]

Thank You! I couldn't help but notice that as well. Seems like a trend with the AP lately, no?

[hegdehog]

Yeah, I agree. As soon as you start believing stories from AP, it's a mess. Read the story again, and try to ignore the obvious conservative AP bias. Start with the completely misleading and intentionally provocative headline.

[vinny]

i think the rule is an important one for this reason also... police must have a "reasonable" belief that crime has been committed before taking you into "custody".­.. if police know that they cannot interrogate you from the time you invoke your right to an attorney, to the time the attorney arrives, then they will be diligent in their efforts to establish probable cause before the arrest is made rather than after the fact...

[ebanks84]

Look at how many have been done just that - interrogate you anyway.

[DodgeCounty]

Police must have probable cause to believe a crime has been committed before taking you into custody.

[Hank10303]

I'm still with President Obama on this . The criminal justice system is becoming more and more a matter of those with the money have the best options. Often the poor upon requesting legal counsel once arrested have to wait hours for representation. The rich, on the other hand make their one phone call and an attorney is there within the hour. By allowing the police to question individuals that have been arrested limits the legal maneuvering that the rich afford themselves. It levels the field. Where improvement needs be made is in the investigation process before arresting someone. The guidelines in some states are so flexible what is considered evidence justifiable of arrest can be the accusations of a witness that is far from creditable.

[vinny]

i am betting more poor people get arrested than rich people... and are the ones best served by having an attorney present during questionin­g...

[wijg]

And if this article is correct Obama's legal team is making it harder on the poor not better.

[ContraEgoiste]

"I'm still with President Obama on this . The criminal justice system is becoming more and more a matter of those with the money have the best options. "

And how would this ruling, IF the article is correct (and a supporter of O I'm hoping that it's not), would change that but instead tilt it more to those with money??

It just gives police wider power that it is bound to be abused more and easier when using it against the poor.

The wealthy only has to keep his/her mouth shut for an hour untill the Attny. shows up.

Just one scenario that I can think of: What stops police interrogators from "neglecting" to promptly get the poor his/her representation knowing that they can grill you at will. I'm sure they can get even more creative. At least now this forms a kind of deterrent and gives police second thoughts.

[Didderbops]

Meet the new boss, same as the old boss. Hope we don't get fooled again...

[ConservativeHippie]

"Meet the new boss, same as the old boss."
That's what I'm talking about. The Demopublicans play us like a bad tune.

[urgk]

Who's fooling you, exactly?

Read the article again, this time looking for bias - anything that shows a tendency to be more judgmental than factual.

"another stark example of the White House seeking to limit rather than expand rights"

Yeah? According to whom? A legal expert? Somebody the reporter could actually quote?

Nope. According to the reporter himself. That's not journalism, it's fear-mongering.

[formerprosecutor]

At his trial, the prosecution submitted as evidence a letter of apology he wrote to the victim's wife. Montejo wrote the letter at the suggestion of a detective who accompanied him in a search for the murder weapon. Before the search, Mr. Montejo was read his Miranda rights and wrote an explanation for his participation in the search. However, no one in the search party knew, including Mr. Montejo, that he had been appointed an attorney the same morning. Mr. Montejo contended under these circumstances that the Sixth Amendment barred the introduction of this evidence since his attorney was not present when he wrote and submitted the letter of apology.

The Supreme Court of Louisiana held that the letter of apology Mr. Montejo wrote was valid evidence. It found that Mr. Montejo waived his Sixth Amendment right to counsel. It explained that when counsel was appointed Mr. Montejo remained mute and did not acknowledge it. The court reasoned that something beyond "mute acquiescence" is required to trigger the protections of the Sixth Amendment.

[MomfromTexas]

The real question is...You have the right to an attorney during questioning, BUT the attorney does not HAVE to be there? The question is whether or not questioning should stop, once you ask for an attorney?

[ebanks84]

YES IT SHOULD.

[formerprosecutor]

That is one of the questions here; look at these facts;
The cops didn't know he had counsel, why not?
Did the cops "trick" him to a letter of apology
Did his attorney fail by not running oiver there a?nd finding out what was going on? (was this ineffective assistance of counsel; an appealable issue)
It isn ot clear from this summary, if Montejo remained mute AFTER he wrote the letter and incriminated himself.
If silence is not enough to trigger a 5th amendment right, what is? Do you have to say" I am taking the 5th?"
Was Montejo "sophisticated " enough to know that his writing and acts (taking them on a tour) would incriminate him the same as a verbal confession? Did he know his "apology" was , in effect, a confession?
What was the LEO's real purpose of the letter of apology? was it an end run around both the 5th and 6th?
These are narrow fact specific issues that need answers. Both sides need to know.

[vinny]

does miranda require any acknowledgment by the suspect? or does it simply need to be read?

[vagabondvet]

I thought the eight years of violating rights was over. Obviously it was just a shift change, not a new administration.

[ebanks84]

So you don't mind being interrogated by the police even after asking for your attorney, am I correct?

[paganmist]

Someone in the know, PLEASE explain this to me? On the surface, this seems like a bad thing. I am an O supporter, and I'll admit, my instincts are to assume that he's always acting "for the people", but this decision seems to be taking rights away?

An explanation would be great.

[formerprosecutor]

I posted my "explanation" a couple of pages back

[paganmist]

I found formerprosecutors explanation but I have to admit, I didn't understand how it figures in with this article. I understand the nature of Miranda (or so I think).

If the police question me, AFTER I've asked for a lawyer (but before I've received one), the information they receive cannot be used in a court of law. That's currently how the law works now, isn't it? This seems like a good and logical thing...

So how does overturning that figure into the explanations given below (and two pages back by formerprosecutor)?

Has the author of this article gotten it wrong? Is there more than I'm missing? I appreciate the time you guys are spending to educate me and apologize ahead of time if I'm asking stupid questions!

[DodgeCounty]

If you are a suspect in a criminal case, you have a 5th Amendment right to remain silent and if the cops start asking you questions, you can refuse to answer. If you are then arrested and in custody, the cops must give the Miranda warning before questioning you: you have the right to remain silent and to have an attorney present during questioning under the 5th A.. If they fail to give the warning or keep asking questions after you invoke your right, any statements you make cannot be used at trial (except to impeach you.)

Then comes formal arraignment in court. At that point, your 6th A right to counsel in your defense attaches. If, at that point, you ask for an attorney, if the cops initiate questioning, any statements you make to cops is not admissible in court, even if you do not invoke the right to remain silent. The Administration and Justice want to do away with this last rule so that such statements are admissible unless you affirmatively invoke at the time of the questioning and the cops keep asking questions. I think.

[ebanks84]

That's incorrect. If they ask you questions after giving you your miranda warning and you answer those questions, you have automatically given up your right to remain silent and anything you say CAN be held against you.

[ebanks84]

This article is saying that our rights are not being protected by the police when they can interrogate you even if you have requested an attorney. Once they tell you "you have the right to remain silent", most people don't be silent if a police officer ask them questions while waiting for their attorney. The police know better, but 9 times out of 10, you don't and you respond, not knowing that anything you say can and more than likely will be held against you, attorney or no.

Obama is requesting that the Supreme Court honor our Constitutional rights to "remain silent" without having the police through their sophisticated means, still questioning you. He's trying to PROTECT EVERYBODY'S RIGHT TO REMAIN SILENT.

[MsLiz]

I think you are mistaken.

[fredamae]

"He's trying to PROTECT EVERYBODY'S RIGHT TO REMAIN SILENT."

HOW?

[typhanie]

Rights from whom though? I don't understand the problem. It says that the police are NOT allowed to question suspects without their lawyers present, so how is it taking rights away, isn't that better?

Won't it stop the police from FORCING False Confessions from innocent people?

Please explain this to me, because I think I must have misunderstood the article.