Montejo v. Louisiana

From ScotusWiki

Jump to: navigation, search

Contents

[edit] Briefs and Documents

Authorship: David Muraskin

Docket: 07-1529

Issue: Whether an indigent defendant must affirmatively accept the appointment of counsel to preclude future police interrogation in the absence the attorney.

Merit Briefs:

Amicus briefs

Oral Argument

Transcript

Decision: Vacated and remanded in an opinion by Justice Scalia

[edit] Pre-Argument Articles

[edit] Argument Preview

The Sixth Amendment provides a right to counsel at each “critical stage” of a criminal proceeding. This case addresses whether a defendant must affirmatively accept the appointment of counsel to receive the protections of that right, particularly the protection not to be interrogated by the state without counsel’s presence or consent.

Based upon the facts and briefing discussed below, it seems likely that the Court in this case will reject the Louisiana and Fifth Circuit rule, which denied petitioner the protections of the Sixth Amendment because he did not affirmatively accept the appointment of counsel. The cert. stage briefing demonstrates that such a rule is alone on the minority side of a lopsided split, with both state and federal courts holding that a defendant is not required to affirmatively accept the appointment of counsel to be covered by the Sixth Amendment. Moreover, the limited briefing performed by respondent, relying heavily on dicta in prior Court cases, provides few avenues for the Court to uphold the lower court opinion without overruling its own precedent.

The relief the Court will grant, however, appears less certain. Respondent’s most compelling arguments go to whether the Louisiana rule, if unconstitutional, produced harmless error in this case. Consequently, the Court could hold the rule unconstitutional, but remand the case for a hearing as to whether it produced harmless error. Yet, petitioner’s briefing indicates that he suffered an additional constitutional violation beyond that encompassed in the question presented, namely the denial of his Fifth Amendment right to counsel during his initial interrogation. Thus, his aim seems to be to inflame the Court against the state, so that the Court feels it must reverse his conviction in order to ensure a just outcome.

[edit] Background

In late 2002, Patricia Ferrari returned to her Slidell, Louisiana home to discover her husband, Lewis Ferrari, dead on the kitchen floor from gunshot wounds to his head and chest.

Suspicion quickly turned to Jerry Moore, whom Mr. Ferrari had employed in his dry-cleaning business. In the months leading up to the murder, Mr. Ferrari’s relationship with Mr. Moore had soured; witnesses contend that the two had argued publicly (including on the day of the murder) because Mr. Moore had lost his driver’s license and was forced to rely on a friend, Jesse Jay Montejo, for transportation, making Mr. Moore unreliable.

Mr. Ferrari’s neighbors reported that they saw Mr. Montejo’s van—known for its distinctive chrome cattle bar on its front bumper—carrying a passenger and speeding away from the area around Mr. Ferrari’s home around the time of the murder. Mr. Ferrari’s white Lincoln, which had been stolen from his home, was seen closely following the van. Subsequent forensics found Mr. Montejo’s DNA under Mr. Ferrari’s fingernails.

Based on this evidence, the police conducted a lengthy interrogation of Mr. Montejo, who produced seven distinct explanations for and descriptions of the crime. After about five hours, Mr. Montejo requested an attorney. The detectives immediately ended their questioning; however, on their way out of the room one detective informed Mr. Montejo that the request had “let [the detective] down.” Ten minutes later a video camera recording the interrogation was turned back on, and it captured Mr. Montejo’s sobbing revocation of his request for counsel. The detectives later claimed Mr. Montejo “beg[ged]” them to allow him to reconsider his request for counsel.

Mr. Montejo’s subsequent descriptions of the crime amounted to a confession that he was involved with the murder along with two accomplices, Mr. Moore and an individual identified only as “D.P.” Following these statements, Mr. Montejo and Mr. Moore were arrested for murder.

Consistent with Louisiana law, soon after his arrest Mr. Montejo was brought before a judge for a “72-hour hearing,” intended to allow for the appointment of counsel and establish the amount of bail.. The hearing is considered a “critical stage.” However, the record does not indicate how Mr. Montego responded to the appointment, and the judge did not seek to elicit Mr. Montejo’s formal acceptance of the representation.

The day after the hearing, the same detectives who had previously interrogated Mr. Montejo asked for his assistance in locating the murder weapon. Petitioner contends, and respondent does not disagree, that this too was a “critical stage.” Mr. Montejo said that he believed he was represented by counsel, but the detectives informed him otherwise. (The detectives later claimed that they were unaware Mr. Montejo was represented, even though a representative of the police department attended Mr. Montejo’s 72-hour hearing.) The detectives read Mr. Montejo his Miranda rights, which he agreed to waive, and proceeded to question him about the crime without his counsel present. During this questioning, Mr. Montejo wrote a note to Mrs. Ferrari in which he apologized for murdering her husband and indicated that he had only intended to commit a “simple burglary,” which in Louisiana is a technical legal term that describes a particular level of offense within the penal code. The detectives testified at trial that Mr. Montejo spontaneously produced the letter. However, Mr. Montejo testified that the letter was dictated to him by the detectives.

When his trial began, Mr. Montejo sought to suppress both the statements made during his interrogation and the letter he wrote Mrs. Ferrari. He argued that he was coerced into revoking his request for counsel during the initial interrogation, and that the letter was the product of an interrogation that occurred at a “critical stage” after the appointment of counsel, without his counsel’s presence or consent. The trial court denied his motion, instead accepting the state’s argument that both statements had been given voluntarily, following proper Miranda warnings, making them admissible.

At trial, the state relied heavily on Mr. Montejo’s letter, while Mr. Montejo altered his narrative of events and argued that although he had been involved in an altercation with Mr. Ferrari prior to the murder, he did not take part in the shooting. Mr. Montejo was convicted of first-degree murder and sentenced to death.

On appeal to the Louisiana Supreme Court, Mr. Montejo raised twenty issues for review. However, the court only considered in detail the two issues raised by Mr. Montejo’s motion to suppress, rejecting both claims. Regarding the admission of the letter, the Louisiana Supreme Court agreed that the 72-hour hearing was a “critical stage,” requiring the appointment of counsel. As a result, the court – citing Michigan v. Jackson (1986) – explained that had Mr. Montejo requested representation by counsel, the police could not have questioned him further in the absence of his counsel’s consent or presence. However, relying on state precedent, State v. Carter (1995), and the controlling Fifth Circuit case, Montoya v. Collins (1992), the court concluded that counsel is not “requested” if a defendant merely accepts court-appointed counsel without making some affirmative statement or indication that he desires representation. As a result, Mr. Montejo’s interrogation following the 72-hour hearing was not governed by the Sixth Amendment right to counsel. Instead, the court only needed to find that Mr. Montejo voluntarily waived his right to counsel, which (based upon his signed Miranda waiver) the court concluded he had. Thus, the fruits of the interrogation were admissible.

[edit] Petition for Certiorari

Mr. Montejo filed a petition for certiorari, asking the Supreme Court to consider the question whether he needed to affirmatively accept the appointment of counsel at a “critical stage” to subsequently receive the protections of the Sixth Amendment.

Mr. Montejo presents three reasons that cert. should be granted. First, he contends that Louisiana’s rule requiring affirmative acceptance of the appointment of counsel is on the minority side of a 4-1 split among state supreme courts. According to petitioner, state supreme courts in Wisconsin, Arkansas and Texas have all concluded that a defendant receives the full panoply of Sixth Amendment protections even when he remained silent during the appointment of counsel. Moreover, petitioner notes that the Louisiana rule, and the Fifth Circuit decision upon which the Louisiana Supreme Court relied in establishing that rule, are at odds with the holdings of the Eleventh Circuit, which has explicitly rejected the argument that a defendant must affirmatively accept the appointment of counsel at a “critical stage.”

Second, Mr. Montejo argues that Louisiana and the Fifth Circuit’s rules are inconsistent with the Court’s jurisprudence on the right to counsel. Petitioner notes that under Faretta v. California (1975), a defendant may proceed pro se only if he affirmatively waives the right to counsel, suggesting that he does not need to request the right for it to attach.

Third, petitioner argues that a rule requiring defendants to affirmatively invoke their right to counsel is inefficient, as it requires reviewing courts to conduct a fact-intensive inquiry. By contrast, a bright-line rule – i.e., that the Sixth Amendment’s protections apply after counsel has been appointed at a “critical stage” – would allow courts to make quick rulings as to the constitutionality of subsequent interrogations.

Opposing certiorari, the state did not contest the existence of a split. Instead, it made four arguments. First, the Court’s precedents in Patterson and Jackson suggest that the defendant must affirmatively request the appointment of counsel to receive the protections of the Sixth Amendment right to counsel. Second, the Court in Patterson suggested Miranda warnings would suffice to waive the right to counsel at a “critical stage.” Third, the letter did not result from an interrogation, but rather from Mr. Montejo’s independent and voluntary decision to write the letter while he was with the police discussing other matters. Fourth, any error created by admitting the letter into evidence was harmless, because the jury would in any event have convicted Mr. Montejo in light of his taped confessions and the DNA evidence.

[edit] Merits Briefing

Petitioner’s merits brief largely tracks the substantive arguments made in his cert. petition. The brief begins by reviewing a series of Court cases that, in petitioner’s view, establish that once counsel has been appointed, the protections of the Sixth Amendment right to counsel apply, regardless of the defendant’s silence or lack of affirmative response to the appointment. In particular, petitioner points out that while Patterson holds that a defendant may be interrogated following a proper Miranda warning when counsel has not yet been appointed, the Court in that case distinguished such a scenario from an interrogation that occurs once the accused has obtained counsel – which, the Court explained, generates a distinct set of constitutional protections. Similarly, petitioner cites Michigan v. Harvey (1990), Moran v. Burbine (1986), and United States v. Henry (1980), for the proposition that once a defendant is represented by counsel, the unique protections of the Sixth Amendment right to counsel apply, regardless of how that counsel is obtained. Moreover, petitioner reiterates that Faretta stands for the proposition that the Sixth Amendment right to counsel must be affirmatively waived because it is presumed to automatically apply absent waiver.

Petitioner next argues that it is both reasonable for a defendant to remain silent once counsel is appointed and that any contrary rule would risk disparate treatment for defendants based on where they are charged. Petitioner reasons that because defendants are not typically informed that they have to affirmatively accept the appointment of counsel, with the appointment instead presented to defendants as a routine procedural matter, there is no reason for defendants to believe that they need to affirmatively accept the appointment of counsel. What is more, as in Louisiana, most jurisdictions neither document how the defendant reacted to the appointment of counsel nor ask defendants whether they desire representation. Thus, a rule that required the affirmative acceptance of counsel would provide such defendants fewer protections both in the trial court and on appeal than if they were charged in a jurisdiction that does document the defendant’s reaction.

In addition, petitioner suggests that even if a record of the defendant’s responses to the appointment of counsel were available, Louisiana’s rule would be inadministrable, because it would require courts to interpret a defendant’s gestures and murmurings to determine whether he had affirmatively accepted the appointment of counsel. While acknowledging a concern by some members of the Court that the holding of Jackson was too broad and actually prevents defendants from voluntarily waiving their right to counsel, petitioner also emphasizes that the Court does not need to consider that question in this case because he did not voluntarily waive his right to counsel.

Finally, petitioner seeks to rebut the harmless error analysis advanced by the Louisiana Supreme Court and respondent. He notes that the prosecution relied heavily upon the letter in its case, presenting the letter during testimony and argument. In fact, the letter’s admission was so clearly harmful, petitioner argues, the Court should rule on this issue in its decision rather than remanding the case to Louisiana for further consideration.

Respondent’s brief is only twenty-four pages in length with only ten pages of argument. The state expands upon its argument (also made in the brief in opposition) that the language in Jackson, Main v. Moulton (1985), and Edwards v. Arizona (1981), describing the defendant as having “asserted” or “requested” his right to counsel, indicates that the Court intended the Sixth Amendment protections to apply only after a defendant affirmatively accepted the appointment of counsel. Similarly, in Patterson the defendant’s Sixth Amendment claim was rejected because he did not “exercise” his right to counsel, suggesting the same rule.

Moreover, respondent argues, the Court has consistently held that the right to counsel must be balanced against the societal interest in investigating a crime. A bright-line rule, requiring defendants to affirmatively invoke the right to counsel, would allow the police to gather the greatest amount of evidence without impinging on defendants’ desired representation. Respondent also challenges petitioner’s assertion that such a rule would be inadministrable, suggesting that this rule would consider only whether the defendant made any indication that he desired representation. If so, the Sixth Amendment protections would apply; if not, the police could continue their interrogation. The police could be required to read defendants Miranda, to inform them of their right to request counsel.

Finally, the state again contends that even if the lower court’s ruling were unconstitutional, it was a harmless error. Even if the letter were ruled inadmissible during the suppression hearing, it could still have been entered into evidence as rebuttal in response to Mr. Montejo’s testimony at trial. Moreover, petitioner’s confession and his DNA found under the victim’s fingernails indicate petitioner would have been found guilty regardless of the letter.

[edit] Oral Argument Recap

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.”

[edit] Opinion Analysis

Last week in Montejo v. Louisiana, by a vote of five to four, the Supreme Court overruled Michigan v. Jackson’s (1986) holding that a criminal defendant’s waiver of the right to counsel, following a critical stage, is presumptively invalid. Justice Scalia, writing for the majority, said that the Sixth Amendment right to counsel should instead be protected by the procedures the Court has established to secure the Fifth Amendment right to counsel, Miranda and its progeny.

Noting that the benefits of the Jackson rule are “dwarfed by its substantial costs,” but at the same time refusing to embrace the Louisiana Supreme Court’s narrow interpretation of Jackson in the decision below—that a defendant must affirmatively request counsel before the Sixth Amendment’s protections apply—the Court set down an entirely new doctrinal path. Blurring the line between the Fifth and Sixth Amendment rights to counsel, the Court held that the Sixth Amendment right could be waived “so long as relinquishment of the right is voluntary, knowing and intelligent,” which could be established by the state’s rote recitation of the defendant’s Miranda rights, and the defendant’s un-counseled, voluntary, waiver of those rights.

The Court explained that the aim of Jackson was to prevent the state from “badgering” represented defendants into waiving their right to counsel. That same end, it reasoned, will be achieved by applying the protections of the Fifth Amendment cases Edwards v. Arizona (1981) and Minnick v. Mississippi (1990)—requiring interrogations to stop once a defendant has invoked his or her right to counsel and preventing any subsequent interrogation from taking place—to assertions of the Sixth Amendment right to counsel.

The Court recognized that these rules will not provide represented defendants any protection against “badgering” when they are not in custody or, alternatively, engaged in a “noninterrogative type[] of interaction” – such as a pretrial line-up – with police. Moreover, it acknowledged that its new rules will not allow represented defendants to “anticipatorily” invoke their right to counsel, but instead will require them to reassert their desire for counsel each time they are interrogated by the state. Nonetheless, the Court found that the existing Fifth Amendment protections are “sufficient” to prevent defendants from being coerced into waiving their right to representation at critical stages.

In addition to rejecting the Court’s reasoning that the goal of Jackson could be achieved through Miranda warnings, Justice Stevens’s dissent also suggested that the Court may now have to revisit these Fifth Amendment decisions in the Sixth Amendment context. He noted that the Miranda warning that one is entitled to counsel may prove too confusing to defendants who have already obtained counsel, and thus their waiver of their Miranda rights may not amount to a “knowing waiver” of their Sixth Amendment rights. The majority did not address this concern.

Finally, underlying the doctrinal developments was a debate over the weight of stare decisis. Justice Scalia, in the majority, argued that here an adherence to stare decisis was unnecessary because Jackson was poorly reasoned, balancing the risks and benefits of its rule improperly. Justice Alito, with whom Justice Kennedy joined, wrote a separate concurrence to note that if the Court could reject stare decisis and overturn New York v. Beltran (1981), as it did with Arizona v. Gant (2009), then the majority was entitled to do the same with Jackson. Justice Stevens’s dissent argued that Jackson was not poorly reasoned, and although Beltran needed to be reversed, Jackson did not. Justice Breyer refused to join part of this dissent to reiterate that, in his view, both this case and Gant were wrongly decided because of the binding nature of stare decisis.

[edit] Links and further information

Retrieved from "http://www.scotuswiki.com/index.php?title=Montejo_v._Louisiana"
Personal tools