Law Talk With Douglas M. Schneider, Esq.

You Have A Right To An Attorney...Sort Of

Lost among the news coverage of the Sotomayor nomination and the California Supreme Court's Prop 8 decision was an interesting Supreme Court decision handed down in the case of Montejo v. Louisiana.  Writing for the conservative majority (Roberts, Alito, Thomas, and Kennedy), Justice Scalia overturned prior Supreme Court precedent and ruled that evidence obtained by the police from contact with a defendant who was assigned counsel at an arraignment proceeding does not need to be suppressed.

The basic facts of the case are as follows.  The Defendant was arrested.  He waived his Miranda rights and gave a statement.  He was arrested and brought before the judge for arraignment.  The judge set no bail and "ordered the Office of Indigent Defender be appointed to represent the defendant."  Right after the court hearing, two officers visited the defendant in jail and asked him to help them find the murder weapon.  He was again read his Miranda rights which he again waived.  He was convinced to write a "letter of apology" to the deceased's widow.  Only after all this occurred did the defendant first meet with his court-appointed lawyer.

The crux of the case came down to a prior case called Michigan v. Jackson, 475 U.S. 625, which held that any "waiver" of Miranda rights after a defendant requests counsel at arraignment is presumptively invalid.  This prophylactic rule prevents the government from circumventing the right to counsel by simply convincing a defendant to "waive" their Miranda rights when their lawyer is not present to object.  A waiver of Miranda rights needs to be voluntarily given, and up until now, a waiver would not be considered valid if obtained outside the presence of counsel.  Likewise, this rule mirrors the Rule of Professional Conduct that forbids a lawyer from talking directly to a party that they know to be represented by counsel.

I am not a big fan of the Montejo decision.  The first thing it suggests to me is that problem created by the fact that not a single member of the Supreme Court has worked as a prosecutor or criminal defense attorney.  As a working criminal defense attorney, I can tell you that I can think of just about no situation where I would allow my client to waive his Miranda rights if he did not have an immunity agreement.  I am going to go out on a limb here, and suggest that this is pretty much a hard and fast rule of criminal defense.  Thus, up until now, the police know that questioning must cease once a lawyer is requested, nonetheless appointed or retained, and that any future requests for information from the defendant must go through the lawyer.

What the SCOTUS has done in this case is removed that bar.  Let's be clear about what happened here.  A lawyer was appointed to defendant at an arraignment hearing, and before the defendant could even meet with the lawyer, the police had already seen the defendant, took him on a trip to find the murder weapon, and convinced him to confess to the crime.  Only after these things occurred, did the police allow him to see his lawyer.  Thus, the police were able to circumvent completely the right to counsel.  The defendant's lawyer wasn't even given the chance to explain to him that he did not have to, and should not under any circumstances talk to the police again outside his lawyer's presence.

To be fair, SCOTUS does not make the evidence obtained by this procedure automatically admissible.  Defendant is still able to argue that his waiver of Miranda was not voluntary.  To be honest, this is basically lip service.  Again, any experienced criminal lawyer knows how difficult it is to convince a judge that a Miranda waiver is not voluntary.  Often, the judge is faced with a Miranda waiver that, if found to be voluntary, will end the case because evidence, and often an admission, of guilt becomes admissible at trial.  Judges are hard pressed to find that Miranda was not voluntarily waived when it increases the likelihood that a potential bad guy is going to get off. 

The other thing that struck me about the opinion is how insecure it is about its own findings.  Rather than put forth a rational argument supporting the conclusion, the opinion spends most of its time of the defensive from the 4 Judge dissent.  This is not entirely surprising given that to reach the decision it did it had to ignore stare decisis and overturn prior Supreme Court precedent, and try to argue away one of the most sacrosanct rules of professional conduct.  Though Shall Not Talk Directly To A Represented Party.  For me, the defensive, and indefensible, nature of the decision can be seen by the use of the cheap rhetorical tool of using rhetorical questions.  This type of writing was beaten out of me in my three years of law school.  A good writer (and everyone praises Scalia for being one of the best) makes arguments.  Asking a rhetorical question is not the same as making an argument.  It is used in lieu of making an argument.  It puts the onus on the listener or reader to come up with a reason to disagree.

There are a couple of rhetorical questions in the opinion used in lieu of a real argument.  Here is the most egregious.  The dissent claims that the aforementioned Rules of Professional Conduct and decision in Jackson are intended to safeguard a defendant's right to legal counsel.  Writing for the majority, Scalia (or his clerk) writes "To safe guard the right to assistance of counsel from what? From a knowing and voluntary waiver by the defendant himself?"  What Scalia does here is twofold.  Because he can't really rebut what the dissent is arguing, he doesn't.  He simply tries to cast doubt on the conclusion by trying to poke holes in it.  Further, what Scalia does is use a little bit of sleight of hand.  What the dissent argues, and what any criminal defense lawyer believes, is that a waiver can NEVER be knowing and voluntary if it is done outside of the presence of retained or appointed counsel.  Thus, Scalia's second rhetorical question assumes away the very point it is trying to prove.  That is why he uses the rhetorical question.  It is an attempt to divert attention away from the obvious weakness in the argument.

At the end of the day, I don't think Montejo is a "sky falling down" decision, but it does have real consequences.  Currently, if I call a detective to let them know a suspect is represented by counsel, they will not question that suspect outside of my presence.  In fact, I recently received a call from a DA apologizing to me because after I told a detective that my client was represented she immediately called my client and berated her.  The DA apologized to me and told me that she reprimanded the detective.  However, the Montejo decision completely changes this.  It actually encourages the police to question the defendant outside my presence to try to get a waiver of Miranda.  Now, I am a private defense attorney, so my clients pay me.  I have far more time to instruct my clients.  Thus, the first thing I always tell them is say nothing to anyone.  I don't care what the police say to you, don't say a darn thing outside my presence.

However, this is not so with people represented by pro-bono legal services like Legal Aid.  They have huge dockets of cases and can't always give each one lengthy and individual attention.  Thus, as in the Montejo case itself, it might take two hours after being appointed for the defense lawyer to have even his first conversation with the defendant.  This gap in time is now going to be used by police to try to end the case.  The new mantra is going to be rush to get a Miranda waiver before the lawyer has his chance to get involved.  As is often the case with short-sighted criminal legal decisions, it is the indigent and uneducated who are going to pay the steepest price.  It is my sincere hope, although I doubt it, that police (at least in NY where I practice) will continue with the practice of not questioning a represented defendant when their lawyer is not present.

 

Getting Arrested

Since becoming a lawyer, the biggest eye opener for me has been just how easy it is to get arrested in NY.  Let me give you two examples.  A woman walks into a major retail store.  She looks at some items and puts them back in a different location.  After she pays for her items and leaves the store, a private security guard follows her out of the store, and asks her to return with him.  The security guard asks what happened to the item and the woman says she put it on the table.  When they walk to the table, the item is not there but the woman sees it on the floor.  So she says "there it is, on the floor."  The security guard says "very sneaky, I saw you drop it out of your pockets."  Leaving out some details, the woman is eventually arrested.  This woman, a white-collar professional, spends the night in jail with drug addicts and prostitutes.  Eventually someone points out that she couldn't have dropped the items out of her pockets because she was wearing a dress with no pockets.  Nonetheless, the arrest stays on her record, and the prosecution moves on, until the case is resolved.

A woman's sister gets beat up by her boyfriend.  She was the one who set them up, so she goes over to his house and rings the bell.  No one answers.  She leaves and calls the cops.  The boyfriend also calls the cops and says that she broke his window (she didn't).  He gets arrested for domestic violence and assault and she gets arrested for criminal mischief.

The attitude of the police seems to be I arrest them and let the issue of proof be decided by the lawyers.  I understand where the police are coming from, but I think they are failing to consider all of the consequences that attend an arrest.  The first woman was a permanent resident.  For her, even the arrest can have consequences.  The second woman was suspended from her job, without pay, until the case is cleared up.  People who work for a public union have a clause in their contract that they have to report an arrest within a certain number of days.  Many of them get terminated for failing to make this report.  Many of these types of cases will eventually get dismissed and sealed rendering the arrest a nullity that in most circumstances does not have to be reported.  However, to get a job with the military, police, and other government jobs, even sealed arrest records are fair game.  This is to say nothing of the cost of defense and, for some, the discomfort of a night or more in jail.

A California Court Cites Me (From January, 2007)

Ok, so the case was eventually overturned.  It was still cool when it happened.  I even got a call from the press.

I know that a blog is no place to brag. However, today a California court ruled that a prior juvenile conviction could not later be used to enhance a sentence for a subsequent crime committed as an adult. What is notable about this decision is that I had articulated this position in a published article that I penned while in law school. (http://www.cardozolawreview.com/PastIssues/SCHNEIDER.WEBSITE.pdf)

My basic argument was that the Supreme Court in Apprendi v. New Jersey had stated that except for the fact of a prior conviction, anything that increased a sentence beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. The Supreme Court did not require prior convictions to be submitted to a jury under the theory that the defendant had already received due process in the prior adjudication. Included in due process is the right to a jury trial. However, juveniles do not have a right to a jury trial. Hence, I argue that after Apprendi, a juvenile adjudication in which there was no right to a jury trial cannot be used to later enhance an adult sentence.

Today, a California court agreed with me. http://www.courtinfo.ca.gov/opinions/documents/H028798A.PDF

"The sole issue in this appeal is whether it is constitutional to use juvenile adjudications to increase the maximum punishment for an offense, in light of the United States Supreme Court’s opinions in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely).In concluding that it is not, we respectfully disagree with our colleagues on this court and others, and join the small but growing number of courts across the country that have likewise concluded that Apprendi and its progeny compel us to recognize that the Sixth Amendment right to a jury trial is an integral part of the process that is due before a prior conviction may be used to increase the maximum sentence for a criminal offense."

Although I expect this case to be appealed to the California Supreme Court, it is an important development in the criminal law. Allowing juvenile convictions to later enhance adult sentences allows the State to pull a bait and switch on the juvenile defendant. In exchange for a more lenient justice system, the juvenile gives up certain constitutional protections, namely the right to a jury trial. However, if that juvenile commits a crime as an adult, the State argues that the juvenile conviction should be used to enhance a sentence as if the juvenile conviction was just like any other conviction. Such a process allows states to make an end run around Constitutional due process.

Anyway, I don't know if any of you will find this interesting or important. I certainly was excited. I just gave an interview to a San Francisco legal journal called "The Reporter," and I understand there may be an article on Thursday if anyone is interested.