Patterico's Pontifications


No, Obama Is Not Trying to Take Away Criminals’ Right to Representation

Filed under: General — Patterico @ 4:17 pm

In a post headlined Obama to end representation in interrogations?, Ed Morrissey says:

The Obama administration has argued for the end of the Michigan v Jackson ruling that requires police to provide an attorney for a suspect once one has been requested.

No, that’s not what the ruling says, and that’s not what the Justice Department is requesting in its brief. The Obama administration has not argued that the police should not provide lawyers to criminal suspects, or anything like it.

Michigan v. Jackson covers what happens after the defendant gets to court — namely, the following situation:

Defendant is arraigned in court and asserts his right to counsel. Police then approach him and advise him of his Miranda rights. He waives them. They advise him that he has a right to counsel under the Sixth Amendment. He waives it. He then voluntarily provides a confession to the crime. (You can even assume that the confession is recorded, so that we know all these waivers were properly obtained, and there was no coercion involved.)

A court will still suppress that voluntary confession., because of Michigan v. Jackson, which says that any confession resulting from interrogation initiated by the police must be suppressed if the right to counsel has been asserted by the defendant at his arraignment.

The Justice Department is simply arguing that a defendant should be able to waive these rights and give a voluntary confession that won’t be suppressed. Horrors!

Ed claims that the Justice Department’s brief shows that we have an “autocratic administration determined to wipe out civil rights.” We may have such an administration, but this legal position is not evidence of it.

More detail in the extended entry.

[Extended entry]

Ed is apparently relying on a Telegraph article that misunderstands the scope of Michigan v. Jackson. That article says:

The Michigan vs Jackson ruling in 1986 established that, if a defendants have a lawyer or have asked for one to be present, police may not interview them until the lawyer is present.

No, it didn’t. Edwards v. Arizona, 451 U.S. 477 (1981) had (prior to Michigan v. Jackson) ruled that a defendant who has been advised of his Miranda rights and has clearly requested a lawyer cannot be further questioned by police unless the defendant re-initiates the conversation. The Justice Department has not asked for this ruling to be re-visited, and indeed its brief assumes Edwards‘s continuing validity. Also, contra the Telegraph article, whether the defendant “ha[s] a lawyer” has nothing to do with the issue if he has not asserted his right to counsel in court with respect to the case concerning which the police wish to question him.

Ed says:

Americans have the right to counsel at all stages of the process, not just in court, as Obama argues. The adversarial process begins with arrest and interrogation, not when people first face a judge.

But Michigan v. Jackson deals only with what happens after people first face a judge, which is where the Sixth Amendment right to counsel attaches. Interrogation before arraignment is not covered by the Sixth Amendment and has nothing to do with what this brief is arguing.

12 Responses to “No, Obama Is Not Trying to Take Away Criminals’ Right to Representation”

  1. Interrogation before arraignment is not covered by the Sixth Amendment and has nothing to do with what this brief is arguing.


    nk (4b5c8a)

  2. Not that those of us who are not lawyers or Constitutional scholars can do a decent job of explaining our laws, but it’s usually comical how wrong the media gets this stuff, especially foreign media.

    On the other hand, there is so much pure evil emanating daily from the Obama Administration that it’s perfectly natural to suspect every single move on their part to be nefarious. I know I do.

    Peg C. (48175e)

  3. nk,

    There is a difference between the Fifth Amendment right to counsel and the Sixth Amendment right to counsel. Miranda and Edwards deal with the Fifth Amendment right to counsel.

    Jackson, on the other hand, deals with the Sixth Amendment right to counsel. The Sixth Amendment right to counsel is offense specific and only attaches at the beginning of adversarial proceedings in the court system.

    Police interrogations usually occur prior to the beginning of the adversarial proceedings in the court system, and are governed by Miranda and Edwards.

    Dave N (5f3348)

  4. I read the Ed Morrisey post this afternoon. Thank you for clearing this up for us.

    Dan F (87ef1e)

  5. This is a very good example of continuity in the Justice Dept. from Admin. to Admin.

    Another equally good example, believe it or not, is the original PATRIOT ACT.

    The changes in various criminal statutes coming in the first PATRIOT ACT was really nothing more than a “wish list” of DOJ legal modifications that it had been proposing to Congress for more than a decade — including every year of the Clinton Admin. It was only after 9/11 that there was a sudden urgency in Congress to address issues that DOJ had been raising repeatedly, only to have Congress respond “Maybe next year.”

    The case at issue here is the same thing. This is a position that DOJ has advocated in several previous cases in various circuits. The position adopted by the brief, is the position that DOJ has taken over and over again, and the Obama DOJ has decided that on a legal basis it is correct, notwithstanding the handwringing of the ACLU (and Ed Morrissey, apparently).

    WLS Shipwrecked (53653f)

  6. And, I’ll also note that Michael Dreeban, Deputy Solicitor General on the brief, is among the smartest DOJ lawyers around.

    WLS Shipwrecked (53653f)

  7. […] Patterico refutes this, so I must, as well. Edwards v. Arizona, 451 U.S. 477 (1981) had (prior to Michigan v. Jackson) […]

    Obama Administration seeks new interrogation laws « Cadillac Tight (661794)

  8. So Escobedo and Brewer v. Williams have been overruled sub silentio. Oh well.

    I could be suspended for talking to a represented party-opponent. But I guess it’s ok for a police officer to go to my client and say “Look, that public defender is just going to sell you down the river. That’s what he’s really there for. As lawyers, those guys are a joke. Talk to me. I’m the only one who can help you.” And then turn over the conversation to a prosecutor.

    nk (4b5c8a)

  9. nk,

    A public defender will only show up once appointed–and it is only at the beginning of the adversarial proceedings–which is often after the police have concluded their investigation and turned the case over to the District Attorney for prosecution.

    And remember, the Sixth Amendment right to counsel is offense specific, which means that even if a person has been charged with Crime 1, the police are free to interview him about Crime 2–without contacting the Attorney representing the person for Crime 1.

    I was involved in prosecuting a murder case many years ago where the perpetrator confessed to other crimes (including an unsolved robbery-homicide in another states). His attorneys screamed about the police questioning him about the uncharged crimes–but on appeal the state supreme court held the police did nothing wrong when they questioned him about the uncharged crimes without first notifying his attorneys.

    Dave N (353133)

  10. My ConLaw professor was a district director of the ACLU and my CivPro professor was an associate of Thurgood Marshall in the “Mississippi Burning” days. It’s not that all prosecutors are bad people, it’s that all bad people are prosecutors. 😉

    nk (4b5c8a)

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  12. Anytime an accused has asked for a lawyer and the police still want to talk to him without one, we should be suspicious.

    Bright lines are important, and when “formalities” aren’t observed the potential for abuse is enormous. Obama’s DOJ is on the wrong side of this.

    fiver (e8149d)

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