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

[take10]

So, what is the real intent of the reversal of Miranda rights? Are we outlawing torture of foreign captives only to increase the chances of police brutality via torture right here at home. This is a very ill conceived and dangerous course for President Obama to be taking at a time when most Americans are in fear of their freedoms going away. The Bush administration made sure of that. Beating false confessions out of suspects have often been the cause of justice being denied to innocent suspects and victims as well.

I am hoping that this is a mistake on the part of those reporting it. If it is as they say, both the right and the left should be in fear of their freedoms going bye bye! President Obama, if you do this, you can count on not having my vote in the future. For that matter, neither would anyone who supports you in this insane return to the methods used when JIM CROW was still alive. While you are at it, why not bring back the dogs and fire hoses too? You need to fire who ever wrote this memo! Or, is GW Bush still in charge?

[crazyv]

join the club!

I can't standing listening to him any more. He is appearing day by day to be more of sneaky lawyer. One needs to parse every word he says to understand the nuance. Just like trying to save $100million as symbol of changing business. This is an administration of smoke and mirrors concealing the fact the substantively they are no different then the previous administration- both are kleptocracies I really feel like a fool for having donated, campaigned and voted for him.

Think it is time to seriously consider an alternative Democratic candidate for 2012.

I have turned down all requests by the Democratic party to donate- I figure that if I am going to get Republican policies why pay for them?

[Lemastre]

I generally agree with your comments, except the one about George Bush being in charge.

[take10]

What I meant is , there are similarities if you have people on your staff who generate this crap that is bound to cause problems. Bush refused to fire them. Obama should not follow the same stupidity.

[thirteen13]

Yoy have to "look forward". Don't forget the standing ovation the senators gave the convicted felon senator from Alaska. Didn't this so called justice dept. recently overturn that conviction?

There are laws for you and me and immunity from laws to elected officials and "law makers".

[Helzapoppin]

If it serves so little a purpose, why go to all the trouble of trying to rescind a 23 yr old ruling?

[freedomitchy]

They told me that if I voted for John McCain, we’d have a Department of Justice that would make unprecedented inroads on the rights of the accused. And they were right!"

[T]he 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,

This isn't the first time the Justice Department, under President Obama, has sought to limit defendants' rights. [More...]

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." Talk Left

[glockman]

"[T]he 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,"

So then what do you do if, after Miranda, they refuse or do not ask for counsel? Must you then tell them how to contact an attorney, provide a list of attorney's to choose from?

Your argument is emotional rather than rational.

[freedomitchy]

My position is the ruling of scotus and based on the law. No, the ruling pertains to suspects, who are waiting for their requested legal counsel to arrive.

[freedomitchy]

BTW, yes under some circumstances you must tell them how to contact a lawyer and how to receive free legal counsel.

[Dynamohum]

Mentally and developmentally disabled individuals as well as someone who is extremely ill many times won't undertand ANYTHING that they are being told. And yes they should inform the persons they are entitled to counsel and that they don't have to answer any questions.

[LeftRight]

Barack, Barack, Barack....­.. WTF do you think that you are DOING!! I MIGHT agree with this if you were to say that the Police have the right to ask the questions whether the lawyer is present or not, but to say that the suspects have to ANSWER the questions without their lawyer....­..... That's just......­.. Anyways, not cool!

[glockman]

The president was elected to follow the rule of law, not to do what's cool.

There is nothing unconstitutional with this ruling.

[SorenB]

Did you forget about the 5th Amendment?

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

[Independent voter]

It is most certainly unconsutitional, but Bush III doesn't care about that.

[MsLiz]

What ruling? It's a legal brief.

[thirteen13]

EXCEPTION: If you break the law and you are an elected official like say a president or vice president, every thing becomes hush, hush forget about it.

[poster1122]

That's not what the administration is saying. You always have the right against self-incrimination. The question at hand is whether answers given by a suspect after he has initiated his right to counsel can be used as evidence. That is, can the defendant afterwards waive the right to counsel having already invoked it.

[thirteen13]

Will I be tortured if I remain silent?

[montecarlo408]

Somebody's always going to be disappointed. If you want a President that does everything you want, YOU should run. If you win, YOU will disappoint people, too.

[vinny]

c'mon... this guy ran for the Democratic Party, and he is limiting the rights of individual­s... it's a complete contradict­ion...

[rwext]

ACTUALLY HE IS KEEPING THE RIGHTS OF DEFENDANTS FROM BEING INFRINGED ON BY LAWYERS .

[LeftRight]

Just like the current union forming law is "protecting" workers from having the big bad union talk to them??

[Independent voter]

Are you FKM!

[MsLiz]

Nonsense talk.

[fr33d0mhawk]

Hedgehog, It is not a stupid decision. Anyone who wants to talk to the police can say whatever they want, its called spontaneous utterance, and is admissable. The other way you can talk to police is to verify you understand the Miranda rights, that you fully understand what your rights are and what you are being charged with. Removing this decision will allow cops to round up innocent mentally ill people and force them to confess to crimes they did not commit, with nobody there to defend them from, lets face it, members of the most crooked, criminally infested profession on the planet, the police force. It is very simple, read the miranda warning, and verify the person is capable of understanding it, then police can question all they want if the defendant wishes it so. This is not, as they claim, to allow for defendants the opportunity to talk with police, its to allow police to use intimidation to interrogate people into confessions. Most police and prosecutors only care if the case is winnable. Guilt or innocence is irrelevant. We need someone in government to protect the people from the government, and Obama is dropping the ball big time.

[glockman]

Read the article again, Miranda has not been removed. This decision allows for a defendant to provide voluntary information even if they have representation.

And please provide some sort of research and evidence for your assertion that the police force are the most corrupt organizations on the planet. Without proof, your statement is merely opinion.

[vinny]

its watering down Miranda... "you have a right to an attorney".­.. also, police are not going to admit to making a mistake, and will often put their interests before yours if a mistake has been made...

[LeftRight]

This legal opinion, if it is upheld by the SCOTUS, will not remove Miranda, you're correct. What it WILL do, however, is limit its effectiveness. Right now if you are picked up off the street, they can ask you anything they want, even if you've requested a lawyer, and if there is no lawyer present they cannot use that against you if you talk to them. What THIS opinion is stating is that even if you've requested a lawyer, and he's not there yet, they can not only ask you, but you must answer, and they can use that......­.

How is that not damaging to Miranda??

"You have the right to remain silent" Not anymore

"You have the right to an attorney" You still got this one, but it's almost useless now!

[SorenB]

Acts of corruption? Check out Illinois: http://www.truthinjustice.org/dphistory-IL.htm

I wouldn't agree with fr33domhawk that all police forces are the most corrupt organizations, I believe all organizations have elements of corruption in them. When compared to Wall Street the police force looks like a bunch of Boy Scouts.

http://en.wikipedia.org/wiki/Miranda_warning

"Many police departments give special training to interrogators with regard to the Miranda warning; specifically, how to influence a suspect's decision to waive the right. For instance, the officer may be required to specifically ask if the rights are understood and if the suspect wishes to talk. The officer is allowed, before asking the suspect a question, to speak at length about evidence collected, witness statements, etc. The officer will THEN ask if the suspect wishes to talk, and the suspect is then more likely to talk in an attempt to refute the evidence presented. Another tactic commonly taught is never to ask a question; the officer may simply sit the suspect down in an interrogation room, sit across from him and do paperwork, and wait for the suspect to begin talking.[3­] These tactics are intended to mitigate the restrictions placed on law officers against compelling a suspect to give evidence, and have stood up in court as valid lawful tactics. Nevertheless, such tactics are condemned by legal rights groups as deceptive.­"

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

[thirteen13]

Obama is protecting elected officials and law makers. He gives a rats ass about the rest of us.

[freedomitchy]

So Obama's position is "any Bozo that doesn't know by now NOT to OPEN Their Mouth Without a Lawyer deserves what they get." and progressives are fine with it?

[hortonhearsawho2]

ur a bozo, ur fine with it...

[crazyv]

yes because we are sooo in love him and everything he does is good and decent and moral - plus he has two adorable children and a puppy now. What more could any thinking person want. Now that he is in charge we don't have to worry and go back to watching American idol or the latest inane reality show.!

I guess the critics were right- many of his supporters were really part of a cult.

[thirteen13]

Like I won't be tortured if I remain silent?

[glockman]

"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.­"

Some common sense at work here. Voluntary statements are just that, voluntary. I see no violation of civil liberties if a custodial interrogation is done properly (Miranda procedure followed) and the person being interviewed offers to cooperate. So long as the statements are not coerced, then individual rights are not violated.

[freedomitchy]

So you are saying the US Supreme ruling, 23 years ago, for defendants rights. was too liberal and was wrong?

[glockman]

Are you referring to Miranda? If so, then no. The fifth amendment is the only right the govt. is required to inform the people of, take it for what you will.

This decision does nothing to invalidate that of Miranda decision. A defendant still has his/her full legal representation if asked for. If a defendant volunteers information after Miranda (and in some cases before) no rights have been violated.

[danna144]

This isn't taking away Miranda. Read it again.

Are you saying that the state knows better than the individual and that suspects are not allowed to change their minds because they are too stupid to make their own choices?

[thatsNotWhatIHeard]

Seriously, that headline and the writer's unchecked editorializing will get anyone's blood boiling hot; but as for what Obama really wants to do, you're right, its totally common sense.

[Lemastre]

The reason most of us need lawyers when in police custody is to remind us of our rights -- what the cops may do and what we may do or refuse to do. The Miranda recitation is a formality exercised at the instant of arrest that many arrestees do not connect to what goes on later in the jailhouse. Allowing the prosecution to use any statement from an arrestee means that arrestees will NOT be adequately reminded of their right to silence and that they will undergo very vigorous questioning before a lawyer arrives, if one is summoned. It's always an unequal contest in the interrogation room, and unless he's a legal scholar, the arrestee needs all the help he can get.

[totaldisbelief]

any Bozo that doesn't know by now NOT to OPEN Their Mouth Without a Lawyer deserves what they get.

[cantcu]

Since Obama was elected, he has been acting more like a Republican, intervening in the US Supreme court, against an American detainee held for 6 years on behalf of Bush. If it had gone to trial Obama knew that the Military Commission's Act of 2006 would have been ruled unconstitutional. Obama surrounds himself with Republicans and people with views that are no where near the middle.

Now he wants to limit peoples rights, and he doesn't want to prosecute the CIA, while the privates who went to jail for Abu Ghraib he hasn't thought one thing about.

I don't know this man we elected. He is not whom I voted for!

[hortonhearsawho2]

exacttly, he is not mccain, whom u voted..

[SorenB]

Keep drinking the Kool Aid hortonhear­sawho2...

Why is it so hard to believe that people that voted for Candidate Obama are disappointed by President Obama?

The actions of President Obama are not what I voted for. If there are facts to justify his position with the American people he should share them, not just hope that all of us will be Obamabots and just go along with what he does.

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

[glockman]

Exactly how are rights being violated with this decision? The individual can still invoke his/her fifth amendment right, or invoke the right to counsel.

[freedomitchy]

You are in love with Obama and blinded by emotion. Let's try a different approach. Let's pretend George Bush was trying to restrict defendants' right to legal counsel, not to be questioned until their lawyer arrived, would you support Bush?

[SorenB]

Asking for a lawyer stops any potential abuse from happening. It has been known to happen that during questioning Police can get quite aggressive and an uneducated person could be led into making incriminating comments even though they have no guilt with them.

If you need any proof of that look at the number of cases on death row on Illinois that were exonerated:

http://www.truthinjustice.org/dphistory-IL.htm

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

[crazyv]

whats wrong with a simple rule- once the person has asked for lawyer all questioning ends. Anybody who thinks that somebody arrested can't be "persuaded" to talk is living on another planet.

I know somebody who worked for one of the recipients of the Anthrax letters and was questioned by the FBI. The person's reaction after the interview " I felt like I had to confess to something". This was from a well educated confident person.

[freedomitchy]

Obama legal team wants to limit defendants' rights
The hopey change people here told me if I voted for McCain our rights would be restricted and reduced and you were right! This is outrageous, but you guys knew Obama was anti individual rights when he voted for expanded domestic spying in the new fisa legislation. Would you'all explain how this is a good thing?

."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.”

[hortonhearsawho2]

tell it to meghan...

[hegdehog]

It does seem like sort of a stupid decision. If you want to talk to the cops, you should be able to. Why should you have to pay an attorney 400 bucks an hour to sit there and listen while you do?

[freedomitchy]

Because we have the right to legal representation and more importantly against self incrimination. The situation is one ripe for the abuse of dumb suspects.

[hortonhearsawho2]

sarah is looking oh so ripe these days...

[glockman]

That's the problem with many of our laws, we dumb them down to our lowest common denominator.

[danna144]

You don't HAVE to talk to them. You still have Miranda. Once you request an attorney you don't have to talk to anyone and they won't talk to you. But if you choose to talk to the police once you have said those magic words, right now as it is written, they will not talk to you. That's what this is addressing. And you can still stop talking at any time.

[Michael7843853]

Under the law now, you CAN talk w/o a lawyer, but if you have a lawyer or request a lawyer and are waiting for a lawyer, they can't question you until the lawyer arrives. That is what the article says.

[SorenB]

They don't have to pay for an attorney, here is what the suspect hears when they are mirandized:

"You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney present during questioning. If you cannot afford an attorney, one will be appointed for you. Do you understand these rights?"

I am confused as to why Obama would push for this... The only reason that I can think of is that states would want this is to cut down on the cost of Public Defenders. Not exactly helping out the poor and uneducated that could use an attorney. All the banking criminals have their attorneys on speed dial...

Anybody seen Candidate Obama??? Every day that goes by I see less and less of him in President Obama.

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

[rizvisa1]

What harm does it offer if the lawyer is present. If the person is willing to talk, he will talk with or without lawyer. However if you make rule that he can talk without lawyer if he "choose" so, well there are always ways that police will find where the person will "choose" to talk without lawyer. More cons and no pro in removing this restriction

[freedomitchy]

Obama restricts our rights and it's a good thing? No, you are in love and blinded by emotion.

[rizvisa1]

? when I am agreeing with admin position. I am saying there are more cons to removing this restriction, which is not this position this report is saying Obama admin has.

[hortonhearsawho2]

and u want to cut taxes, sure sport....

[zjr909]

Following the first dictum of sensible politics - "If it ain't broke, don't fix it" - I have to seriously wonder what's going on here. Unless there have been a spate of recent cases where an obviously guilty person walked simply because he was questioned without an attorney, there seems to be no compelling reason to overturn Michigan v Jackson. If, in fact, Obama's DOJ is not only seeking to have the Supreme Court overturn that decision, but actually going out of its way to do so, then I think it's way past the time to start questioning Obama's agenda - his real agenda. Parenthetically, let me note that I voted for Mr Obama not because I bought his "change" and "hope" clap-trap, but simply because I wanted to prove to myself once and for all that the Democrats were as much a part of the problem as the Republicans. At the rate Obama's going, it won't take long to get that proof.

[rizvisa1]

Well even if there were such cases, then why in the first place police did it. They knew the law, they should have not you.