The U.S. Solicitor General, speaking for the federal government, urged the Supreme Court on Tuesday to overrule its 1986 decision in Michigan v. Jackson. Seeking to assure that the right to counsel is not lost during police interrogation, the Court ruled in Jackson that, once an accused has claimed that right in court, any waiver of that right during police questioning would not be valid unless the individual initiated communication with the officers.
The government’s amicus brief can be found here. Siding with a group of states that had argued earlier that the Jackson precedent was no longer necessary to protect the rights of suspects in police custody, Solicitor General Elena Kagan made the same point. The U.S. brief said that the ruling is not needed “given the purposes of the Sixth Amendment and the existence of other strong protections against coercion.”
The brief continued: “Although the Sixth Amendment affords criminal defendants a right to counsel at certain critical pre-trial stages, the Amendment should not prevent a criminal defendant from waiving that right and answering questions from police following assertion of that right at arraignment. Jackson serves no real purpose and fits poorly with this Court’s recent precedent; although the decision only occasionally prevents federal prosecutors from obtaining appropriate convictions, even that cost outweighs the decision’s meager benefits.”
By contrast, a group of former top Justice Department officials, ex-prosecutors at the federal and state level, and former judges asked the Court in an amici brief to keep the Jackson decision intact, saying it had provided a “bright-line rule” that has now become “embedded in routine police practice,” just as the warnings requirement of Miranda v. Arizona has.
The Supreme Court on March 27 told counsel to file briefs on the fate of that 23-year-old precedent. That order was issued in Montejo v. Louisiana (07-1529), a case the Justices had heard in January. The Jackson precedent is centrally at issue in that case.
The Montejo case is before the Court as a test of whether a suspect, who has an appointed defense lawyer and thus the right to counsel has attached, must take additional affirmative steps to accept the appointment in order to bar police questioning with the lawyer’s presence.
Other amici joining in the Montejo case on Tuesday urged the Court to retain the Jackson precedent. As a group of public defenders argued in their brief, “the rule is essential to our ability to fulfill our constitutional obligation to provide effective assistance and to ensuring the fundamental fairness of our adversarial system.”
Jesse Jay Montego’s supplemental brief also urged the Court not to overrule the decision, while the state of Louisiana’s supplemental said it should be cast aside, having been “anomalous” from the day it was decided.
A group of ten states said as amici that the rule was unworkable, and should not be retained.
Criminal defense lawyers and an assortment of civil liberties and human rights groups filed a brief voicing full support for Jackson.
Lawyers for Montejo and for Louisiana are to file reply briefs on this issue on April 24.
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