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

[Liberalforsure]

President Obama is a Constitutional Law Scholar. You guys are missing the point of the article.

[vagabondvet]

And he's proven just how much he knows about the Constitution. I think the point of the article is painfully clear.

[ebanks84]

If the point to you is "painfully clear", then you evidently don't even have the point. If you are picked up for any reason by the police and you request your attorney and they start asking you questions like they usually do anyway and you respond, then you have given up your right to remain silent and everything you say can be held against you. Obama is trying to give you that right back again without being taken away by the police.

[formerprosecutor]

I don't think I am

many times prosecutors push through an issue to get a final determination; guessing what is on our agenda, would be... a guess.

[Tyger79]

He's not naive. He's further eroding rights. He's just another politician folks. The difference between this guy and Bush, is that this guy knows he's wrong.

[ebanks84]

People are not understanding this article. Especially those who are against anything Obama anyway. They have their very own personal interpretations.

[take10]

At trial, the accused can't be forced to give testimony. Yet, if this is passed, he can be forced to answer questions without an attorney! And, forced he will be if there is no protection of the right not to comply. Beating false confessions out of suspects is a skill cops could teach the CIA!

[Benton]

Honestly, this is really not true.

[swanie]

BS ! !

This country is BECOMING A POLICE STATE, and those who do not recognize it are doomed to live in it.

I am of an age that it will make no difference to me but this country is on a downward slope that is picking up speed, and I am sad for the country that my grandkids will be inheriting.

Enough.

[Shashi0224]

The article specifically said the accused could not be FORCED to give testimony...but rather wouldn't be stopped FROM giving testimony....there's a huge difference there.

[take10]

So why change the law? " If it isn't broken, don't try to fix it!"

[DodgeCounty]

The thing to remember is that if you are arrested, and even if you are innocent, DO NOT TALK TO THE COPS.

http://www.youtube.com/watch?v=i8z7NC5sgik

[ebanks84]

That's it in a nutshell. NEVER TALK TO THE COPS until your attorney is present. He will tell you whether to answer or not.

[Aabby]

I don’t understand, Mr. President. I really don’t.

[HomerJFong]

I really don't see the big issue here. So the police can ask a suspect questions without their lawyer present. - How does this violate ANYBODY'S rights when this suspect has been informed that they have the right to remain silent?

Is it just me or is the AP taking a lot of ham-handed swipes at Obama lately that only make them look ignorant?

[ebanks84]

Probably because some people don't really understand that right. Once a policeman start asking questions, they automatically answer and then the questioning begins. The police are very good at what they do and most suspects (especially innocent and illiterate ones) don't understand the "right to remain silent". Somebody has to protect the people's rights.

[formerprosecutor]

nutshell:
because peopole think once they have asked for a lawyer nothing they say can be used against them

and

some people don't understand the finer point of law; and don't understand what they say maybe used in a way they never dreamed

and because some people are not sophistacated enough to realize an interrogation tactic when they see it.

[fredamae]

Good morning,
I must take exception to your comment re: "sophistication". I think it relates more to lack of experience in dealing with the Justice System. The most Sophisticated, Wealthy, Learned, Experienced people can and do become unwittingly entwined in Allegations, Charges and indeed Convictions.
They say "ignorance of the law is not an excuse"...Well, I do agree, it is No Excuse but rather with todays complicated, expanded confusing legal system, it Is a Fact. Factor in the Lack of Consistency allowing for Multiple Interpretations and Administration of Laws from one LE Agency to another and you have trouble.

[HomerJFong]

But when a suspect is Marandized, they are informed of both their right to remain silent (complete with the caveat that what they do say will be used against them), and their right to an attorney. Are they given any indication that invoking their right to an attorney will protect them from 'what they say being used against them'?

I'm certainly far from a lawyer, and I don't mean to oversimplify... I can see the potential for problems where folks might unwittingly say something damning, but this seems more like the rescinding of a courtesy, than a violation of rights.

[DodgeCounty]

The civil libertarian argument is that once a defendant requests an attorney at arraignment, subsequent police questioning without counsel present violates the 5th Amendment right to remain silent (and the 6th Amendment right to counsel, as I understand it.)

[ebanks84]

You're absolutely correct. That's what the argument is here and people are incorrectly reading the article to suit their meaning.

[jaschrod]

Most people are not street smart. They just assume if an authority figure says something, then that is it, and not to be questioned. Our whole society in this country has been conditioned to that thinking from day one. Most were told by their parents, and we all wanted to believe our parents, that there is a god, and that is it. Not realizing at the time that this information had been handed down through the ages, starting back before there was any scientific evidence to the contrary. So it is no wonder that we follow orders without question.

[TheyAllSuck]

Part of the problem is that police are allowed to lie and trick you into saying something incriminating (not trick you into saying you killed your wife, but trick you into saying "yeah, sometimes I wish my wife were dead", which gets presented to the jury out of context.), and they can offer "deals" with no intention of granting. AND whatever you say still gets used against you.

The other problem is that we have a plea bargain legal system which allow the state to apply "coercive" bargaining to produce a confession. (e.g. - You can stand trial for 1st degree murder and be executed, or plead guilty (even when not guilty) and stay alive. You can get convicted of Rockerfeller drug laws, and spend 25 years in jail, or plead guilty and get 3 years and be able to raise your kid when you get out.)

Cops can be excellent interrogators, who know and take advantage of every psychological trick in the book to get you to say something you wouldn't want to say. The classic example is the getting a mentally impaired person to admit to something false, BUT the same concept can be applied to take advantage of phobias or psychological kinks which the defendant are "powerless" to resist.

[formerprosecutor]

re; the concept and defintion of "questioning"
currently, that is the foundation of motions to supress statemnets made by those that "talk" to officers (or anybody else)"after they have asked for an attorney.

Say your defendant has an IQ of roughly 70; say the oficers don't actually question him (in common understanding of the word) but TALK to him. Tell him what is going to happen to him, etc., but nothing that ends in a question mark. He becomes upset and started "talking"; blurting. raging, etc.

Now they didn't "question" him. Should that information be used against him? What if they use a tidbit to find more evidence? Is that "poisonous tree" or not? This is not a simple issue.

[Firenze]

Thank you.

[formerprosecutor]

See my above posting on the facts of the instant case; I hadn't read it before posted my theoretical; I wasn't far off.

[vinny]

police are really skilled at "talking" and eliciting information... really, that is the sole purpose of the interaction... and so i would say that it's a highly developed form of questioning/interviewing... and i am assuming they are actually trained in these information gathering techniques, y/n?

[vinny]

so if they've found out more information through information gathering conversation, after you have invoked your right, then they've not honored your right...

[ebanks84]

So, all you people who thinks that Obama is doing is limiting your rights are completely confused.

Would any of you want the police to interrogate you for hours without allowing you to sleep and not allowing you to call an attorney?

Would any of you want the police to do the same thing to your children without requiring you to be there?

If you answered yes to either question above, then you have a complaint against Obama. If you answered NO to either question above, then you should be happy with Obama's request.

Make your choice!

[DodgeCounty]

You do not understand the issue here. The question is not about whether police can continue to question a defendant after he invokes his right to an attorney or to remain silent during police questioning. It is whether police questioning after a defendant has been arraigned and has requested an attorney in court at arraignment violates the 5th Amendment right to remain silent.

[formerprosecutor]

I disagree; wher is arraignment an issue here??

[ebanks84]

Is there a question as to the defendant's rights in that situation. Not to me. Questioning by the police whenever, without an attorney present, is wrong as far as I'm concerned, especially for those who might be innocent, illiterate, or just don't understand what it means to be silent. There are too many of these type people, including mentally disabled people also. The article says that the poor has been targeted here and don't explicitly know their rights and have been solicited for information by sophisticated police interrogators. Obama is trying to protect ALL people's rights here, even yours.

[Tkevan]

Correct. Michigan V. Jackson put the point at arraignment. They stated that this signalled the point of beginning the adversarial system.

"Indeed, after a formal accusation has been made -- and a person who had previously been just a "suspect" has become an "accused" within the meaning of the Sixth Amendment -- the constitutional right to the assistance of counsel is of such importance that the police may no longer employ techniques for eliciting information from an uncounseled defendant that might have been entirely proper at an earlier stage of their investigation. "

http://supreme.justia.com/us/475/625/case.html

[Tkevan]

I'm not sure it's us who are confused.

"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."

Your examples are not on point, BTW. The law in question has nothing to do with allowing you to call an attorney, only whether questioning can continue until the attorney gets there. Current law requires all questioning stop as soon as you ask for counsel.

[DodgeCounty]

Well, sort of. The issue is whether, after the defendant asks for counsel at arraignment, the cops can question the defendant without an attorney present and in the absence of the defendant's invocation at the time of questioning.

[ebanks84]

The law of which you speak supercedes the Constitution? Then it should be attacked and the reconsidered by the courts. Nobody should be questioned with legal assistance. Any answer some people might give could be detrimental to them if they don't know interrogation processes. If you're saying that people should be questioned by the police period whether they requested an attorney or not, you are so very wrong my friend. And I hope you are not a counselor. Plus, police DO NOT stop questioning even if you ask for an attorney and that's what the average joe doesn't realize. They instinctively respond not knowing that they DON'T HAVE TO.

[mergina]

Here it is in Chicagoese, which I am sure Obama can understand. "Dis is a pile of crap."

[vinny]

f/ below: The legal issue is whether questioning, in itself, is coercive simply because the 6th Amendment right to counsel has attached at arraignment.

------

i personally think it is... if i was arrested for carrying a wrong sign at a tea party protest, the police put me in a car, and start asking me who my friends are, and i invoke my right to remain silent and a right to my attorney, i shouldn't have to sit there with a cop in my face, asking me questions... honor my rights...

[DodgeCounty]

Correct. You are talking about the 5th Amendment right to remain silent. The question in the case here is whether questioning after *arraignment* (not while you are sitting in the cop car) violates the right to remain silent. In other words, does the triggering of the right to counsel under the 6th Amendment render subsequent questioning necessarily violative of the 5th Amendment right to remain silent?

[formerprosecutor]

Some agencies are extra careful, and even allow attorneys in lineups; BEFORE they are actually arrested!! (but merely, as they say " in custody"

[rf dude]

Q: What do you usually call a defendant with a court-appointed lawyer?

A: A convict...
--

[punk]

Like Richard Jewel??

[rf dude]

Uhhh - nooooo.....

Try again.
--

[Firenze]

Read the Constitution. Right to counsel is EXPLICIT. Right against self-incrimination is also EXPLICIT. Not implied, not intuited, it's right there in black and white.

Where are the cries from those Second Amendment zealots about the infringement on an enumerated constitutional right? This is the same thing only Americans care more about guns than they do about human beings.

[ebanks84]

Ain't that the truth.

[BethinIllinois]

FOr shame, Obama. This is a travesty.

[ebanks84]

It's a travesty to protect you from being grilled incessantly by the police without allowing you to have an attorney present? You jest.

[WWWexler]

Obama is a general disappointment.

Instead of tackling problems by gather facts and making decisions, instead of seizing the moral high ground and doing what's right and lawful, he is equivocating about his duties as the chief defender of our Constitution. Every calculation he makes where he includes the political component makes him look weak and indecisive. Each time he wails for bipartisan support over Constitutional law he is denigrating himself and his office.

That's why I voted for Nader, who you may remember as the guy who got zero ink from anybody, despite the fact that his organization had him on 45 state ballots nationwide. I guess the "progressive" media wasn't really that progressive, after all. They just want to play the part, not walk the walk.

You know who you are.

-Wexler

[Shashi0224]

Your comment may be your opinion....but you are completely wrong in my opinion.
President Obama has accomplished more good for our country in the last 95 or so days than anyone could have dared hope. He was the ONLY candidate with the intelligence to direct us through the impossibly horrendous crap Bush left us in.

[WWWexler]

In other words, the somewhat acceptable ends justify the somewhat dubious means.

[Char59]

You forget that President Obama is very good in Constitutional Law, he taught it! I am sure you would like to ignore that fact.

[WWWexler]

I haven't forgotten it, but I'm pretty sure HE has.

[Hank10303]

You voted for Nader because what he said sounds good until you are in a postion where Nader's postions work against you. This is not a country where ones views are "imposed" on the majority of the citizens. It is one founded on the concept of fairness equals justice.

The process is the take a case before the court system; end up on the supreme court and reargue the facts of the law; the disability to gather information and the fairness of the evidence that may be gathers. It prevents someone that is guilty and has confessed prior to their attorney's presents from then suppressing that confession on the grounds the attorney was not present during questioning.

Consider the Sandfor Ponzi case - any information gathered by police during intial questioning is now surpress even if he confess to the his soul ever scheme; because once he request his attorny everything he has said is not longer valid evidence and will be thrown out of court.

[WWWexler]

My concept is that fairness is defined by the law, which has been created by our Founders and our legislators. We elect the legislators; therefore they are answerable to us at the election booth.

Why is the return rate of elected officials over 95%? It's because people are too lazy and too cowed to stop sending the same idiots back every time. This is the basic problem underlying why we have such a huge body of unjust and even unConstitutional laws on the books.

It's also the rationale for opening up the election system by seizing power back from the two major parties and giving it back to the people. If we don't do that, we're doomed as a nation, and that's just a fact. We will go from despots like Bush to equivocating populists like Obama until we sit as a dead, wrecked, hulk of a nation by the roadside of history while China, India, and others pick up the torch and carry on.

[ssg13565]

What I gather from this article is that the current state of affairs does not prevent a defendant from talking to the police without a lawyer present if he or she wants to. It just prevents that information from being used against the defendant in court.

So the defendant's right to free speech is still protected and the defendant's fifth amendment rights are also protected.

The police may not want to listen to what the defendant would like to say because they will not be able to use it in court.

[formerprosecutor]

there is no 1st amendment issue in this case.

[miamia]

How does O have the power to overrule a Supreme Court Decision?

[mick7191]

He doesn't. It says he is asking the Supreme Court to over rule.

[DodgeCounty]

He doesn't. The Administration and Justice are asking the Court to overturn the prior decision.

[MsLiz]

He doesn't. The AG can argue that precedent should be overruled, and that is all that has happened.

[Hank10303]

The process is the take a case before the court system; end up on the supreme court and reargue the facts of the law; the disability to gather information and the fairness of the evidence that may be gathers. It prevents someone that is guilty and has confessed prior to their attorney's presents from then suppressing that confession on the grounds the attorney was not present during questioning.

[MsLiz]

This is an adversary system, and prosecutors should not be expected to argue the defendant's case. The administration is fulfilling its role. Obama has not betrayed us.

If the SCt reverses the precedent, I'll be shocked and appalled. Reversal invites mischief. In the case at bar, the ill-gotten confession should not be the evidence which results in the death penalty. Confessions are presumed to be involuntary. If a confession is all the prosecution has, it has a weak case.

The government's brief starts out telling the Supreme Court that their 1986 decision "serves no real purpose," That strikes me as hilarious; not exactly flattering, is it?

[punk]

It's coercive, not adversarial, when a defendant's lawyer isn't present during questioning.

[formerprosecutor]

"questioning" may or may not be a factor in this issue; that is one of the points "Justice" is making

[MsLiz]

Look up the phrase "adversary system."
http://en.wikipedia.org/wiki/Adversarial_system

[GayIthacan]

"The government's brief starts out telling the Supreme Court that their 1986 decision "serves no real purpose," That strikes me as hilarious; not exactly flattering, is it?"

Since 8 of the 9 justices who voted for the rule are no longer on the court, yor comment would seem out of place.

[DodgeCounty]

Out of place only until Roberts, Alito, Scalia, Thomas and Kennedy say otherwise.