NationStates Jolt Archive

http://www.law.cornell.edu/supct/html/07-1529.ZO.html

The main point (most relevant parts bolded): Montejo was arrested, waived Miranda, brought to court on Louisiana law thing and assigned counsel. After that point, the cops asked Montejo to return to the crime scene after reading him his rights again and he, again, waiving them. During the excursion, he wrote an apologetic letter to the widow of the murder victim incriminating himself. The argument was to exclude this from evidence as his already appointed counsel was not present for any of this. Scalia, and the conservative court, held that Montejo, who already had been appointed counsel, could not claim protection because he did not actively assert his right to counsel.

The ruling in summary:
Scalia for conservative court: To all criminals who don't understand the Constitution and all relevant case precedent, suks 4 u, n00bs

My favorite part is where Scalia had the balls to say Stevens, in his dissent of Scalia's elitist asshattery, was presenting a revisionist view of a case that Stevens himself wrote the opinion for.

Let us all wait for Neo Art to come in and say I am entirely wrong and Scalia is right and I am an idiot because he is a lawyer and knows such things.

If he waived his Miranda rights, then he is declining having counsel there.

If he waived his Miranda rights, then he is declining having counsel there.

I was willing to buy that but the opinion didn't end there.

Let me get this straight. The guy was read his Miranda rights. Twice. And waived them. Twice. And was still assigned counsel. And now he's demanding that his self-incriminating statement should be thrown out because his lawyer wasn't with him at all times to bind his hands and gag his stupid fucking mouth?

Let us all wait for Neo Art to come in and say I am entirely wrong and Scalia is right and I am an idiot because he is a lawyer and knows such things.

...was that actually at all necessary?

...was that actually at all necessary?

Of course it was. Because Neo is nothing if not a cheerleader for conservatives, and in Supreme Court cases, decisions are made by lawyers, not judges.

what was the vote? was it a 5-4 split ?

what was the vote? was it a 5-4 split ?

Nothing else.

Of course it was. Because Neo is nothing if not a cheerleader for conservatives, and in Supreme Court cases, decisions are made by lawyers, not judges.

Hardly. Except Neo Art is, supposedly, a lawyer and thus is the master of legal decisions and if I did it wrong, he must obviously come correct me, and be snobbish about it because of the aforementioned lawyer thing.

Let me get this straight. The guy was read his Miranda rights. Twice. And waived them. Twice. And was still assigned counsel. And now he's demanding that his self-incriminating statement should be thrown out because his lawyer wasn't with him at all times to bind his hands and gag his stupid fucking mouth?

The point being that the ruling is he has to invoke the right to counsel he was already assigned. Does no one else see how this is going to go wrong? Scalia first disagreed with the Louisiana court's decisions based on its absurdity because of different state systems, then goes on to make it the official decision of the court.

Hardly. Except Neo Art is, supposedly, a lawyer and thus is the master of legal decisions and if I did it wrong, he must obviously come correct me, and be snobbish about it because of the aforementioned lawyer thing.

And if he agreed with your analysis? Would that just be being a dick for no reason then?

Hardly. Except Neo Art is, supposedly, a lawyer and thus is the master of legal decisions and if I did it wrong, he must obviously come correct me, and be snobbish about it because of the aforementioned lawyer thing.


He hasn't even posted anything about this and you're already judging him for it.

He might indeed be a lawyer, snobbish, and wave his lawyerly credentials around but even if so, it is irrelevant to the subject at the moment. Let it go man... let it go.

I don't know, my heart doesn't exactly bleed for the poor, maligned skell. I tend to save my sympathy for the victims, rather than the criminals.

Let us all wait for Neo Art to come in and say I am entirely wrong and Scalia is right and I am an idiot because he is a lawyer and knows such things.

It's bad form to call someone out for being a dick before they even read the thread, much less have a chance to perpetrate said dick-ishness.

I'm with Scalia and the majority here. Having a lawyer is not the same as asserting one's right to have a lawyer present. Which right was waived voluntarily.

I'm also pleased that, while they denied relief on the argument raised, the Court pointed out another avenue of relief and granted the option to pursue it.

I'm with Scalia and the majority here. Having a lawyer is not the same as asserting one's right to have a lawyer present. Which right was waived voluntarily.
I would agree with "waiving Miranda = waiving a right to a lawyer" except that wasn't where he stopped nor was that his point. He moved on to "if you have a lawyer, you have to assert your right to a lawyer or it doesn't matter." That's not only absurd but the position put forward by the Louisiana court that he basically disagreed with through the first part of his opinion. Scalia and the conservative court have struck another blow against fairness and rationality in the justice system in favor of ultimate police superiority.


And if he agreed with your analysis? Would that just be being a dick for no reason then?
I don't know if he will agree or disagree, but I expect him to act the same either way.

http://www.law.cornell.edu/supct/html/07-1529.ZO.html

The main point (most relevant parts bolded): Montejo was arrested, waived Miranda, brought to court on Louisiana law thing and assigned counsel. After that point, the cops asked Montejo to return to the crime scene after reading him his rights again and he, again, waiving them. During the excursion, he wrote an apologetic letter to the widow of the murder victim incriminating himself. The argument was to exclude this from evidence as his already appointed counsel was not present for any of this. Scalia, and the conservative court, held that Montejo, who already had been appointed counsel, could not claim protection because he did not actively assert his right to counsel.

The ruling in summary:
Scalia for conservative court: To all criminals who don't understand the Constitution and all relevant case precedent, suks 4 u, n00bs

My favorite part is where Scalia had the balls to say Stevens, in his dissent of Scalia's elitist asshattery, was presenting a revisionist view of a case that Stevens himself wrote the opinion for.

Let us all wait for Neo Art to come in and say I am entirely wrong and Scalia is right and I am an idiot because he is a lawyer and knows such things.
i think you should have included this sentence

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.

he was technically represented but ....since he had not been allowed to see his lawyer yet how can it possibly count?

I would agree with "waiving Miranda = waiving a right to a lawyer" except that wasn't where he stopped nor was that his point. He moved on to "if you have a lawyer, you have to assert your right to a lawyer or it doesn't matter." That's not only absurd but the position put forward by the Louisiana court that he basically disagreed with through the first part of his opinion. Scalia and the conservative court have struck another blow against fairness and rationality in the justice system in favor of ultimate police superiority.
It does make sense though. If you are in a position where you keep a lawyer on retainer and are arrested, and you just don't call your lawyer down to the station, have you been denied your right to have a lawyer present? It seems obvious to me that you have not.



I don't know if he will agree or disagree, but I expect him to act the same either way.

Yes, I rather expect he'll be quite amused at your antics, regardless of his opinion on this matter.
i think you should have included this sentence

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.

he was technically represented but ....since he had not been allowed to see his lawyer yet how can it possibly count?
If you have a lawyer do the police actually have to wait for him to be present to interrogate you, or is the onus on you to tell them you're not saying shit till you have a lawyer?

It does make sense though. If you are in a position where you keep a lawyer on retainer and are arrested, and you just don't call your lawyer down to the station, have you been denied your right to have a lawyer present? It seems obvious to me that you have not.
He did not have a lawyer on retainer; he was assigned a defense lawyer specifically for this case after being brought to court. His right was invoked for him by the court, IMO. I was going to agree with Scalia's reasoning on Miranda equating to waiving right to a lawyer after he waived them the second time, but Scalia continued and narrowed his opinion in order to screw over all but the most high-class criminals who know what to do. In fact, he mentions that in his opinion and then rolls over it. Scalia obviously knew what conclusion he wanted to come to before issuing the majority of the opinion because most of it is contradictory.

Also, reading that opinion really shows how big of an ego Scalia has. Aside from saying Stevens in his dissent was wrong in interpreting an opinion that Stevens himself wrote, Scalia goes on to quote himself from a dissenting opinion (ie, not the opinion of the court).

He did not have a lawyer on retainer; he was assigned a defense lawyer specifically for this case after being brought to court. His right was invoked for him by the court, IMO. I was going to agree with Scalia's reasoning on Miranda equating to waiving right to a lawyer after he waived them the second time, but Scalia continued and narrowed his opinion in order to screw over all but the most high-class criminals who know what to do. In fact, he mentions that in his opinion and then rolls over it. Scalia obviously knew what conclusion he wanted to come to before issuing the majority of the opinion because most of it is contradictory.

Also, reading that opinion really shows how big of an ego Scalia has. Aside from saying Stevens in his dissent was wrong in interpreting an opinion that Stevens himself wrote, Scalia goes on to quote himself from a dissenting opinion (ie, not the opinion of the court).

The section I bolded is what I completely disagree with. The court, or ANYONE else, cannot invoke your rights, no more than they can waive them. ONLY YOU CAN DO THAT. And Montejo did not do so.

If you have a lawyer do the police actually have to wait for him to be present to interrogate you, or is the onus on you to tell them you're not saying shit till you have a lawyer?

The onus is on you. Otherwise, police could not interview anyone who has the means to have a lawyer on retainer, but could people without that wherewithal - one law for the rich, one for the poor.

I reckon the court got it right on this occasion. The cops never forced this guy to go with him, they never forced him to write a letter of apology, they never tried to make him not talk with his lawyer. It was all him. All this guy had to say was "hang on, I want to talk to my lawyer before we go on this roadtrip, ok?" and the cops would have dropped the matter until the laywer arrived. He didn't.

Once again Scalia gets it right.

The onus is on you. Otherwise, police could not interview anyone who has the means to have a lawyer on retainer, but could people without that wherewithal - one law for the rich, one for the poor.
I would think there is a significant difference between "having access to a lawyer" and "having a lawyer currently and actively acting as your representation on a case."

I reckon the court got it right on this occasion. The cops never forced this guy to go with him, they never forced him to write a letter of apology, they never tried to make him not talk with his lawyer. It was all him. All this guy had to say was "hang on, I want to talk to my lawyer before we go on this roadtrip, ok?" and the cops would have dropped the matter until the laywer arrived. He didn't.
Like I said, I don't disagree with the argument presented that waiving Miranda waives the right to have a lawyer present (despite the fact no one would think of that). But that isn't where the opinion stopped and I believe the implications are far more serious than that.
Also, I agree Montejo screwed up, though if you read it, Scalia specifically stated Montejo could challenge the evidence on different grounds, then goes on to narrow the protections of the Sixth Amendment in the next sentence.

Like I said, I don't disagree with the argument presented that waiving Miranda waives the right to have a lawyer present (despite the fact no one would think of that). But that isn't where the opinion stopped and I believe the implications are far more serious than that.

Of course it didn't stop there. Stopping there would have left the pertinent question of the case utterly unanswered. It is pretty much beyond doubt that waiving Miranda waives the right to have an attorney present, to the extent that Miranda applies.

But considering Miranda applies only to the 5th amendment, waiving Miranda rights does nothing, absolutely nothing, to resolve the question of, in this instance, whether or not he waived his sixth amendment rights.

And if the case had only said "waiving Miranda waives the right to your attorney under the 5th amendment" and left it at there, we'd all be sitting with a collective ".....and? what about the 6th?" Which is what the real question of the matter was.

And sorry TPH, I know you were waiting for me to show up and tell you that you were wrong...I had other shit to do. But I got to you eventually.

If you have a lawyer do the police actually have to wait for him to be present to interrogate you, or is the onus on you to tell them you're not saying shit till you have a lawyer?

it seems that the court thinks that its up to you to insist.

*shrug*

i tend to disagree in this case. what is the point of requiring that he get a lawyer if he doesnt GET a lawyer until its too late?

i know next to nothing about the case but it leaves me with the impression that they rushed to get an extra bit of confession out of the guy because they knew that when his lawyer came he would be told to shut up. that strikes me as unjust.

I don't see the problem here...


Once again Scalia gets it right.
How? Why? What argument are you thinking of?




Ah, who am I kidding. You're not going to be back in this thread and answer. You probably just said that because it seemingly runs contrary to TPH's position.

Of course it didn't stop there. Stopping there would have left the pertinent question of the case utterly unanswered. It is pretty much beyond doubt that waiving Miranda waives the right to have an attorney present, to the extent that Miranda applies.

But considering Miranda applies only to the 5th amendment, waiving Miranda rights does nothing, absolutely nothing, to resolve the question of, in this instance, whether or not he waived his sixth amendment rights.
Scalia inherently ties Miranda to the Sixth Amendment because Sixth Amendment rights are discussed in Miranda.

It is true, as Montejo points out in his supplemental brief, that the doctrine established by Miranda and Edwards is designed to protect Fifth Amendment , not Sixth Amendment , rights. But that is irrelevant. What matters is that these cases, like Jackson, protect the right to have counsel during custodial interrogation—which right happens to be guaranteed (once the adversary judicial process has begun) by two sources of law. Since the right under both sources is waived using the same procedure, Patterson, supra, at 296, doctrines ensuring voluntariness of the Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment waiver.

As I said before however, Scalia obviously already had a conclusion and wrote the opinion just to do it, whether or not it actually agreed with itself.

Scalia inherently ties Miranda to the Sixth Amendment because Sixth Amendment rights are discussed in Miranda.

While true a waiver of Miranda can simultaneously function as a waiver of ones 6th amendment rights, this is only true if the waiver was either:

1) brought about through conversation instigated by the defendant

or

2) brought about prior to any assertion of that right.

That's the entire damned point of this case, and the point you're missing utterly. The police approached him. Not the other way around. If he had gone to the police then it wouldn't have mattered. But the police came to him.

The rule of law is that once a right is asserted, it can not be waived unless the defendant himself initiates the waiver. It's a simple reasons. Once someone invokes his right to counsel, the police can not continually ask him to revoke that demand, because we don't want police continually badgering people into confessions before their lawyer arrives. Once those rights are invoked any subsequent waiver of them is invalid unless he willingly, free of coercion, instigates the conversation.

If a suspect says "I want a lawyer", and then you respond with "are you sure?" and he answers you "actually, no, I don't. I changed my mind and want to confess. Here's where I buried the body, and you'll find the bloody knife in my kitchen" TOO BAD. The magic words of "I want a lawyer" came out of his mouth. Game over man, game over. You can not keep talking to him once he asserts his fifth amendment rights or his 6th amendment rights to counsel, unless he makes the effort to seek YOU out, and talk to YOU.

The timeline of the case is roughly this:

1) suspect is arrested. He is informed of his fifth amendment rights under Miranda to have an attorney present during custodial interrogation. He waives it. He says nothing.

2) he is brought to pre-trial hearing where, after being determined to be indigent, is assigned counsel due to his sixth amendment rights to have the aid of an attorney during criminal proceedings. He says nothing

3) the police visit him in prison, instigate a conversation with him, and ask him if he wants to invoke Miranda and exercise his 5th amendment rights. He says he does not wish to.

Now, you're right, willingly waiving your 5th amendment rights as articulated under Miranda can function to also waive your 6th amendment rights as well, but here's the big fucking question of the case. In fact, it's pretty much the sole issue of the case.

When the court assigned him an attorney during step 2, did that count as an implicit invoking of his 6th amendment rights to have aid of counsel during criminal proceedings? Because if it did, if it was an implicit invoking of those rights, then the police were not allowed to approach him in step 3, because he already invoked his right to counsel. If that's true, then his waiver in step 3 is irrelevant. After invoking your right to an attorney under the 5th or 6th amendment, any waiver brought about through instigation of the police is invalid.

Now his waiver of Miranda in step 1 did constitute a perfectly permissible waiver of his 5th amendment rights to an attorney during custodial interrogation. But it could not have served as a waiver of his 6th amendment rights, because his 6th amendment rights cover his right to an attorney during criminal proceedings. By step 1 there were no proceedings yet, just interrogation. His rights hadn't attached. At that point of step 1 he HAD no right to an attorney under the 6th amendment (5th yes).

So because he willingly waived his 5th amendment rights, the police can continually instigate conversation with him without violating his FIFTH amendment rights. So when they got to him by step 3, and was asked if he wanted to come with them, or invoke Miranda, no 5th amendment violation had taken place. He already waived that right. BUT, and here's the big ass question, did it violate his SIXTH amendment rights? His right to an attorney under the SIXTH amendment would have only arisen once criminal proceedings began. That's step 2. So, when he was assigned counsel in step 2, did that count as implicit invoking of his 6th amendment rights?

If not, if it wasn't an implicit invoking, then when he said "no I don't want a lawyer" in step 3, that's a perfectly fine waiver of both his 5th amendment rights, and his 6th amendment rights, because by the time we get to step 3, interrogation after the criminal proceedings had begun, he had a right to both (remember, he couldn't waive his 6th amendment rights at step 1 because he didn't have one yet).

But if the assigning of counsel (remember again, he didn't ask for it, he didn't demand it, he didn't even affirmatively accept it) DID count as an implicit invoking of his 6th amendment rights, at step 2, then what the cops asked him at step 3 is utterly and totally irrelevant. He invoked his right to an attorney. The cops shouldn't talk to him AT ALL, unless HE INSTIGATED IT. So if step 2 counted as invoking his 6th amendment rights, then when the cops went to talk to him in jail at step 3 they violated those rights.

So your suggestion that Scalia could have just said "well he waived Miranda so he waived his 6th amendment rights as well"? No. Wrong. Fail. If he invoked at step 2, then any subsequent waiver is utterly and totally invalid unless HE instigated the conversation, and he did not.

It's no doubt his 5th amendment rights weren't violated. He certainly waived Miranda at step 1. But that couldn't count as a waiver of 6th amendment rights because at step 1 he didn't have any yet. He also waived Miranda at step 3, but that wouldn't function as an after-the-fact waiver of his 6th amendment rights IF he already invoked them at step 2, because the police approached him, and an after-the-fact waiver is invalid if the police instigate the conversation.

Thus the question, the only pertinent question is "did he invoke his 6th amendment rights?" Which is the question Scalia was answering. Now, I'm not going to get into whether I think he's right or wrong here. I don't know, and that hinges, in my mind, on other factors not really discussed much here. So I'm not going to say he is right and Stevens is wrong.

I will say, however, that if you insist on talking about the law, for god's sake man, get it the fuck right.

Oh, and by the way TPH? If you don't like me comin' down here and pointing out how wrong you are when it comes to legal matters? Try being right every once in a while.

Uh, Neo, in this particular case you are telling him that he was right.

Uh, Neo, in this particular case you are telling him that he was right.You ah...didn't actually read, didja?

Let us all wait for Neo Art to come in and say I am entirely wrong and Scalia is right and I am an idiot because he is a lawyer and knows such things.

Hardly. Except Neo Art is, supposedly, a lawyer and thus is the master of legal decisions and if I did it wrong, he must obviously come correct me, and be snobbish about it because of the aforementioned lawyer thing.
You know, that's flamebaiting. Cut it out.

Once again Scalia gets it right.
I'm sorry, are you spamming?

But if the assigning of counsel (remember again, he didn't ask for it, he didn't demand it, he didn't even affirmatively accept it) DID count as an implicit invoking of his 6th amendment rights, at step 2, then what the cops asked him at step 3 is utterly and totally irrelevant. He invoked his right to an attorney. The cops shouldn't talk to him AT ALL, unless HE INSTIGATED IT. So if step 2 counted as invoking his 6th amendment rights, then when the cops went to talk to him in jail at step 3 they violated those rights.

I'm sorry, I fail to find where I disagreed with that.

So your suggestion that Scalia could have just said "well he waived Miranda so he waived his 6th amendment rights as well"? No. Wrong. Fail. If he invoked at step 2, then any subsequent waiver is utterly and totally invalid unless HE instigated the conversation, and he did not.
Wouldn't that be the point? Though it would make more sense saying that than making a ruling that is practically the same as a lower court's ruling that he said is impractical.

Question...

1) suspect is arrested. He is informed of his fifth amendment rights under Miranda to have an attorney present during custodial interrogation. He waives it. He says nothing.


Now his waiver of Miranda in step 1 did constitute a perfectly permissible waiver of his 5th amendment rights to an attorney during custodial interrogation. But it could not have served as a waiver of his 6th amendment rights, because his 6th amendment rights cover his right to an attorney during criminal proceedings. By step 1 there were no proceedings yet, just interrogation. His rights hadn't attached. At that point of step 1 he HAD no right to an attorney under the 6th amendment (5th yes).

Isn't it at the point of Arrest, when the Miranda Rights are read, that criminal Proceedings have started?

if they just asked him to 'come down to the station to answer a few questions', then that wouldn't be technically criminal proceedings and thus the Miranda Rights not necessary since the police are not arresting him. but once an arrest is made, isn't that the start of criminal proceedings?

Question...

Isn't it at the point of Arrest, when the Miranda Rights are read, that criminal Proceedings have started?



the short answer is...no. The police have the power to arrest and detain. They do not have the power to initiate formal criminal proceedings. All the police can do is keep you and hold you for a brief period of time, due to probable cause. But once you're arrested, you need to be charged, or let go. Once you're charged, that's when the formal proceedings begin.

"[the 6th amendment means] at least that a person is entitled to the help of a lawyer at or after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary hearing, indictment, information, or arraignment." Brewer v. Williams, 430 U.S. 387 (1977).

Judicial proceedings/criminal proceedings are pretty much interchangeable terms.

if they just asked him to 'come down to the station to answer a few questions', then that wouldn't be technically criminal proceedings and thus the Miranda Rights not necessary since the police are not arresting him. but once an arrest is made, isn't that the start of criminal proceedings?

You're getting your terms confused. Ones 5th amendment rights to an attorney as articulated in Miranda are not triggered by instigation of criminal proceedings. That's the 6th amendment rights. 5th amendment rights under Miranda are triggered when ones presence is compelled in custodial interrogation. Now, you're right, a simple "would you like to come down to the station and talk to us?" would probably not trigger a Miranda situation. Largely because you're entirely free to say "no, thank you, I'd rather not".

But when you're arrested you are, very literally, placed in custody. Thus any questions you are asked become custodial interrogations. Thus Miranda triggers on arrest, not because the arrest constitutes criminal proceedings (that's the 6th amendment, and Miranda is about the 5th) but because you're placed in custody, which is the important question for the fifth amendment.

But to clarify, Miranda doesn't have to do with instigation of criminal proceedings, it has to do with instigation of custodial interrogation. As to what constitutes custodial interrogation? It's a very broad term, but the general question asked is this: would a reasonable person, in the defendant's position at the time the questions were asked, believed himself free to leave? That's what custodial interrogation means. Would a reasonable person thought he was free to get up and go, and leave the presence of the authorities? A simple "can you come down and talk to us?" Probably not custodial interrogation. Most people..probably would have thought themselves free to get up and go. Interrogation following arrest? Most certainly is. Try to get up and leave. Sitting in the back of a police car, hands uncuffed, door closed? Sure. Courts have generally held that once the police cruiser's doors close, you're in custody (can't open those doors from the inside).

The line is clearly any physicial restraints on your ability to leave constitutes de facto custody, thus any questions asked to you in that circumstance are de facto custodial interrogation. Where it gets a little...murkier is when you're not actually under arrest, not physically restrained or locked in, but are in a situation "dominated by police power and authority". Such as in that police interrogation room. Sure you're physically free to get up and go, but would an average person think he's really free to leave?

"But, but, Neo Art" I hear you asking, "you said INTERROGATION. That Miranda and 5th amendment rights apply to interrogation. But when they arrest someone they're not interrogating him. They do that back at the station. But still on the TV they always show them reading the suspect his rights as they arrest him! If it has to do with interrogations, why do it when they arrest him? They're not interrogating him!"

And to which I say, yes, you're absolutely right. Technically, as a matter of constitutional law, the Miranda warnings do not have to be given until custodial interrogation begins. However cops will do it at the time of arrest, to avoid any issues. The last thing you want is the guy blurting out a confession, then later trying to take it back claiming he was never given his rights. So cops do it at arrest, before any interrogation takes place, just to be safe. Then they'll do it again when they get you down to the station when they actually question you, if you waived it on arrest. And they'll probably do it each and every time they talk to you once you're under arrest. Just to be sure.

the short answer is...no. The police have the power to arrest and detain. They do not have the power to initiate formal criminal proceedings. All the police can do is keep you and hold you for a brief period of time, due to probable cause. But once you're arrested, you need to be charged, or let go. Once you're charged, that's when the formal proceedings begin.

ah. gotcha thanks.

"But, but, Neo Art" I hear you asking, "you said INTERROGATION... Funny, that's not from me... probably from someone else. :D

I was just curious. I always thought that being placed under arrest was the start of the Criminal Procedings. thanks for the info.