Right to counsel? Only if you know to keep your mouth shut, says court

May 27, 11:39 AMCivil Liberties ExaminerJ.D. Tuccille

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Sure you have a right to legal counsel, says the Supreme Court. But if you're not up on your rights and feeling, perhaps, a little chatty amidst the press of glaring law-enforcement officers, the police are free to question you out of your lawyer's presence if you don't know enough to keep your mouth shut. That's the gist of the U.S. Supreme Court's ruling in Montejo v. Louisiana (PDF), which requires defendants to know enough about the law to invoke their right to counsel (and zip their lips) before they can enjoy its protection.

The decision came in a Louisiana case in which Jesse Montejo was arrested in connection with the robbery and murder of Lewis Ferrari. Montejo waived his Miranda rights and submitted to an interrogation, before ultimately being brought before the court where an attorney was appointed to represent him.

After counsel was appointed, police detectives invited Montejo to join them on a search for the murder weapon. In the course of the trip, he wrote a letter of apology to Ferrari's widow, implicating himself in the murder. "Only upon their return did Montejo finally meet his court-appointed attorney, who was quite upset that the detectives had interrogated his client in his absence."

Montejo's attorney had every reason to be upset, since the letter ended up as a central piece of evidence at trial, at the the conclusion of which the defendant was found guilty and sentenced to death.

How could the police take Montejo for a joy ride and use the old "write a letter of apology; it'll make you feel better" ploy while he had legal representation?

Well, it's because of a peculiarity of state law.

Under the rule adopted by the Louisiana SupremeCourt, a criminal defendant must request counsel, or otherwise “assert” his Sixth Amendment right at the preliminary hearing, before the Jackson protections are interrogation in the absence of counsel. But if the court on its own appoints counsel, with the defendant taking no affirmative action to invoke his right to counsel, then police are free to initiate further interrogations providedthat they first obtain an otherwise valid waiver by the defendant of his right to have counsel present.

So, in Louisiana, you can be represented without enjoying the protections of representation unless you say the magic words.

To his credit, Justice Scalia, writing for the majority, finds the Louisiana rule a bit loosey-goosey.

To the extent that the Louisiana Supreme Court’s rule also permits a defendant to trigger Jackson through the“acceptance” of counsel, that notion is even more mysterious: How does one affirmatively accept counsel appointed by court order? An indigent defendant has no right tochoose his counsel, United States v. Gonzalez-Lopez, 548 U. S. 140, 151 (2006), so it is hard to imagine what his “acceptance” would look like, beyond the passive silence that Montejo exhibited.

If allowed to stand, Scalia concedes, the Louisiana rule would give defendants in some states far fewer rights than defendants in other states under the standard set by Jackson in 1986, which established that police can't question a defendant who has a lawyer or has asked for one unless the attorney is present.

Scalia and company then go about resolving the disparity by overruling Jackson. Now police can question you out of the presence of your attorney.

The decision actually doesn't leave Montejo without hope, because there's apparently some evidence that he did request his attorney before being taken on a joyride with the detectives -- and was ignored. He can still apeal on that basis.

But that very contention brings up the reason why Jackson was decided the way it was some 20-plus years ago. As Scakia himself writes, "Recall that the purpose of the rule is to preclude the State from badgering defendants into waiving their previously asserted rights."

But there's a likelihood here that police detectives heard a defendant assert his rights -- and then bulldozed through that assertion to make their case. If Montejo saw the cops simply dismiss his request for a lawyer, why wouldn't he feel intimidated and prone to tell the cops what they want to hear?

Even if we allow that Montejo is probably as guilty as sin, and worthy of little in the way of sympathy, the protections the court just stripped from him can shield innocent people too.

Professor James Duane of Regent University School of Law and Officer George Bruch of the Virginia Beach Police Department have got a lot of mileage out of a pair of classroom videos they made urging people to not talk to the police. That's because even the innocent can tie themselves in legal knots -- or incriminate themselves in inadvertent crimes -- with their big mouths in the absence of legal counsel.

But keeping your mouth shut takes a little wisdom, and a little courage, when the cops go to work on you. Now it's going to be that much harder to avoid self-incrimination -- not just for Montejo, but for all of us.

email J.D.: civilliberties (at) tuccille.com