Dispatches from the Creation Wars

The U.S. Supreme Court has overturned a landmark 1986 ruling that forbid the police from questioning suspects without their attorney present. The 1986 case, Michigan v Jackson, was overturned on Tuesday in a 5-4 ruling (PDF) in a similar case, Montejo v Louisiana.

As I reported last month, the Obama administration had sided with the state of Louisiana in that case and argued for overturning the prior case.

Michigan v Jackson established the rule that if someone accused of a crime has an attorney or has requested the appointment of an attorney by the court, police may not question them without that attorney being present even if the accused agrees to waive the right to have their attorney present during that particular session of questioning. Under Jackson, any waiver of that right was presumed to be invalid because it was not made with the advice of counsel.

Justice Scalia, writing the majority opinion joined by Chief Justice Roberts and Justices Alito, Thomas and Kennedy, said “the marginal benefits of Jackson (viz., the number of confessions obtained coercively that are suppressed by its bright-line rule and would otherwise have been admitted) are dwarfed by its substantial costs (viz., hindering “society’s compelling interest in finding, convicting, and punishing those who violate the law.” (citations omitted)

This provoked an angry response from the dissenting justices, led by Justice Stevens, who took the unusual step of reading his dissenting opinion aloud from the bench. The majority, he wrote, “flagrantly misrepresents” the issues of the case and has “overrule[d] Jackson to correct a ‘theoretical and doctrinal’ problem of its own imagining.” Such tough language is usually aimed by Justice Scalia, not at him.

A group of 19 former judges, prosecutors and law enforcement officials, including prominent conservatives like former FBI Director William Sessions and former Bush administration Deputy Attorney General Larry Thompson, filed an amicus brief (PDF) arguing strongly against overturning Jackson.

Their brief argues that the Jackson ruling “provides an easily enforceable rule governing post-arraignment custodial interrogations,” that the “simplicity and clarity of the rule facilitate[s] the training of police officers” and “provides judges a straightforward, objective standard to determine whether those confessions are admissible.”

“Absent such a clear test,” they argue, “law enforcement personnel, prosecutors, and trial judges will have to start anew in developing a common law from particularized decisions reflecting inherently subjective assessments of the tactics as well as the intent of investigators, the timing as well as the content of interrogations, and the understanding as well as the free will of defendants.”

Their brief also argues that the purpose of the Sixth Amendment goes beyond merely preserving the adversary process and that the Jackson rule protects crucial Fifth Amendment due process protections that help ensure a fair trial and public confidence in the integrity of the criminal justice system:

Third, Jackson links two key criminal procedural rights — the Sixth Amendment right to counsel under Gideon v. Wainwright and the Fifth Amendment rights of an accused under Miranda — which are fundamental to the adversary process and maintain public confidence in our criminal justice system. Discarding Jackson would undermine both rights. Allowing the police to initiate interrogation of a represented defendant and to use any resulting statements would strip away protections the attorney can provide, interfere with the relationship between counsel and client, and undercut the integrity of criminal trials…To abandon a rule that safeguards them would erode the public confidence they foster. It would signal that enduring legal principles and important constitutional rights are no longer so enduring nor so important.

Just another example of the Obama administration adopting Bush administration positions and undermining constitutional protections.


  1. #1 mroberts
    May 31, 2009

    Authoritarianism is a style of management/government, it is not rigidly dependant on the size of the organisation nor it’s political bent*.

    Not exactly true DJ. You cannot grow government and maintain the same level of freedom as before. It is impossible. Growth in government creates new bureaucracies and laws that result in additional limitations placed on the people. What if universal health care is enacted? Am I going to lose the freedom to choose what health care insurance I want or to carry none at all? I certainly will lose some freedom with my paycheck, because more of it will be going to the government to pay for universal health care. A larger government will ALWAYS be increasingly authoritarian.

    Cap and trade is a liberal idea?

    People, do you seriously not pay any attention to what is going on? Cap and trade is being pushed hard by Obama and our liberal-leaning Congress. YES, it’s a liberal idea. What else is one to think?

    You know, you’d probably panic a lot less and be less inclined to think that everybody except you is insane if you were to actually read the stories behind the crazy Rush Limbaugh headlines. Hint: Nobody proposed banning black cars.

    Nobody proposed that? Well, a lot of people apparently thought somebody did:


    Even based on CARB’s presentation, it is easy to conclude that black will be effectively banned once they implement their new requirements:


    Sorry to prove you wrong, but the bottom line is that government has no business telling people they can or can’t buy a certain color of car because it’s paint is reflective enough. Again, it tends to be liberals that push this kind of garbage, which is why I maintain that we have more to fear from liberals than anybody else when it comes to our freedoms. If liberals believe they are justified in regulating the color of your car, they certainly will find a lot of other ways to meddle in your life as well.

  2. #2 Time for real change
    May 31, 2009

    Oh ya and as far as citations go here are a few:





    I just recommend going to the first one, it’s all you need to see or if for some reason you are not satisfied you can just type in “armed population crime rate” to google and see what pops ups. I guarantee there is more evidence to support gun ownership than gun control.

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