Stanford student David Muraskin discusses yesterday’s oral argument in Montejo v. Louisiana, (07-1529).

The argument in Montejo v. Louisiana moved back and forth between two different inquires: whether the Court should overrule Michigan v. Jackson (1986), something barely considered in the briefs, and whether a rule requiring a defendant to affirmatively accept the appointment of counsel was administrable, a crux of petitioner’s briefing.

The argument opened with both Justice Scalia and the Chief Justice expressing concerns that Jackson might be overly broad, preventing a defendant from voluntarily waiving his Sixth Amendment rights once he or she obtained counsel.  Justice Alito later expressed similar thinking, indicating the Court might want to overturn Jackson.

Don Verrilli, arguing for the petitioner, attempted to parry the Chief Justice and Justice Scalia’s concerns by explaining that Jackson does not prevent the police from interrogating a defendant if the defendant initiates that contact.  Jackson only demands that the police not begin the interrogation on their own accord.  Responding to Justice Alito, Mr. Verrilli explained that the briefs did not properly present the implications of overruling Jackson, as this was never requested by respondent, and thus the Court would be acting rashly to do so.  Moreover, if the Court were to even amend Jackson, it risked lower courts chipping away at defendants’ right to “rely” upon counsel at each “critical stage.”

Justice Kennedy suggested the Court could accomplish the same end as Jackson‘s prohibition against police-initiated contact – i.e., to protect defendants against being coerced into waiving their Sixth Amendment rights – by requiring the state to provide a Miranda warning before speaking with represented defendants.  However, Mr. Verrilli argued that such a holding would overrule Jackson and Moran v. Burbine (1986), which distinguished between Fifth and Sixth Amendment rights and established that the Sixth Amendment provided defendants special protections against the state interfering with their representation.

Justice Scalia then hypothesized that the Court could maintain this distinction, but also require that defendants make an affirmative indication that they intend to exercise their Sixth Amendment rights before the protections apply.  Mr. Verrilli, however, stated that there was no “principled” reason to think that silence during the appointment of counsel indicated a defendant’s desire to waive his or her Sixth Amendment rights.  Moreover, Mr. Verrilli argued that most appointment hearings, like the 72-hour hearing in this case, do not provide defendants the opportunity to establish their desire for counsel, making such a rule inadministrable.

At the beginning of the State’s argument Justice Ginsburg immediately questioned the State on this issue, asking whether Mr. Montejo was either provided an opportunity at the 72-hour hearing to indicate that he wanted representation or told that he needed to do so before he was later interrogated.  Kathryn Landry, arguing for the State, said that the Miranda warning the police read to Mr. Montejo provided such an opportunity.

Yet, unsatisfied, Justice Stevens picked up on Justice Ginsburg’s point and also emphasized that Louisiana does not record a defendant’s reaction to the appointment of counsel, meaning that there was no readily available means to apply the State’s rule throughout a criminal proceeding.  A defendant could indicate his desire for counsel at the 72-hour hearing, but there would be no way to establish this and thus demonstrate that later interrogations violated his or her Sixth Amendment rights, even under the State’s rule.

Justice Scalia then pointed out that the State was also not being consistent as to what kind of “affirmative acceptance” its rule would require; would a defendant have to state “I want counsel” or would “thank you,” in response to the appointment of counsel, suffice?  Ms. Landry responded that the defendant would need to offer some “positive affirmation with request for a lawyer” but was not able to say whether “thank you, that’s great” would be enough, before Justice Kennedy interrupted her to suggest that the State’s rule was “arguing for a formality on top of a formality.”

In attempting to backtrack from this problem, Ms. Landry stated that under the State’s rule the defendant would not need to “affirmatively accept” the appointment of counsel when counsel was initially appointed, but could wait to do so until he or she was approached by police for further questioning.  However, this left the Justices confused as to whether, for the Sixth Amendment to attach, a defendant would only need to request counsel once or must do so in the face of every attempt by the state to conduct further interrogations.

Justice Alito, with the Chief Justice’s assistance, sought to prod Ms. Landry to emphasize the broad implications of Jackson-that its rule prevents a defendant from speaking with the police without counsel, if the police initiate the conversation.  However, Ms. Landry would not accept this friendly questioning, instead re-characterizing Jackson as only intended to prevent the police from “badgering” defendants represented by counsel.

Ms. Landry, under questioning by Justice Ginsburg, then went even further, suggesting that Jackson allowed defendants’ rights to vary by state.  Those states that require defendants to indicate their desire for counsel at arraignment, she said, should have defendants protected by the Sixth Amendment, but those states, like Louisiana, where defendants are appointed counsel without any chance to react to the appointment, would be free from the Sixth Amendment’s constraints, until a defendant requested counsel.

The issue of harmless error did not appear until Mr. Verrilli’s rebuttal.  Mr. Verrilli argued that the introduction of Mr. Montejo’s letter could not be harmless as there was no limiting instruction that the letter could only be used for impeachment purposes.  However, Justice Scalia took issue with this reasoning, noting, “this thing was going to come in anyway.”

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