Legal Commentary

Obama DOJ Seeks to Restrict Defendant's Right to Lawyer During Questioning

By Jeralyn

More true colors?

The Justice Department is asking the Supreme Court to overrule Michigan v. Jackson, the 1986 Supreme Court decision that held that if police may not interrogate a defendant after the right to counsel has attached, if the defendant has a lawyer or has requested a lawyer.

[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.

The idea of overruling the decision originated with Justice Alito during oral arguments in the case of Jesse Montejo, a Louisiana death row inmate. Even some prominent former prosecutors and judges are not on board with changing the rule:

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.

Their amicus brief is here (pdf.)

Allowing the police to initiate interrogation of a represented defendant and to use any resulting statements would strip away protections the attorney can provide, interfere with the relationship between counsel and client, and undercut the integrity of criminal trials. It would also contradict the commitment made to defendants through Miranda warnings.

The Supreme Court ordered additional briefing in March. It could decide as early as tomorrow whether it wants to hear argument on the issue.

Full post as published by TalkLeft on April 24, 2009 (boomark / email).