Oral argument: Jan. 13, 2009
Appealed from: Louisiana Supreme Court (Jan. 16, 2008)
SIXTH AMENDMENT, RIGHT TO COUNSEL, POLICE INTERROGATION, MIRANDA RIGHTS
Does the sound of silence answer in the affirmative, in the negative, or not at all? The question at hand is whether Sixth Amendment rights attached to a defendant who has been appointed counsel, but who has not actively expressed or asserted his right to have such counsel. In this case, Jesse Jay Montejo admitted during initial questioning to shooting Lewis Ferrari during an attempted burglary. Montejo, an indigent, was appointed counsel at a 72-hour hearing. However, within hours after appointment, police returned to Montejo's cell to continue interrogation, something which is strictly barred once counsel has been assigned. During that interrogation, Montejo wrote a confession letter, which was later admitted as evidence. At issue in this case is whether that letter should have been suppressed because it was obtained in violation of Montejo's Sixth Amendment rights. Louisiana argues Sixth Amendment rights may not be passively applied but that a defendant must voluntarily assert his choice to have counsel appointed. Montejo argues that this is nonsensical and that presence at an appointment proceeding is enough.
When an indigent defendant's right to counsel has attached and counsel has been appointed, must the defendant take additional affirmative steps to "accept" the appointment in order to secure the protections of the Sixth Amendment and preclude police-initiated interrogation without counsel present?
Is the appointment of legal counsel alone sufficient to preclude police-initiated interrogation without counsel present under the Sixth Amendment?
On the evening of September 5, 2002, Patricia Ferrari found her husband, Lewis Ferrari ("Ferrari"), murdered in the kitchen of their Slidell, Louisiana home. See Louisiana v. Montejo, 974 So.2d 1238, 2006-1807, 1240-41 (La. 1/16/08). That day, between approximately 4:15 and 5:30 p.m., several neighbors saw a blue van with a "distinctive chrome cattle bar," owned by the defendant, Jesse Jay Montejo ("Montejo"), in the neighborhood and parked outside Ferrari's home. Id. at 1242. A coroner estimated that Ferrari had been shot between 4 and 5 p.m. See id. at 1242. Police questioned Montejo, an acquaintance of one of Ferrari's employees, Jerry Moore, on September 6 and 7, 2002. See id. at 1240, 1244. During questioning, Montejo admitted that he shot Ferrari when Ferrari unexpectedly returned home, interrupting Montejo's burglary. Id. at 1244.
On the morning of September 10, 2002, the indigent defender board was appointed to represent Montejo. Id. at 1249. That afternoon, in order to cooperate with the police and to correct misstatements he had made to the police, Montejo voluntarily accompanied the police to the site where he had allegedly disposed of the murder weapon. Id. Prior to accompanying the police, Montejo was Mirandized a second time. Id. At trial, a detective testified that, during the excursion, Montejo told him that he did not have an attorney, but Montejo testified that he had told the detective that he had an attorney and that the detective had responded that he was mistaken. Id. While sitting in the back of the police car and without counsel present, Montejo wrote a handwritten letter of apology to Ferrari's widow. Id. The trial court admitted the letter over Montejo's objection. Id. at 1250.
The jury convicted Montejo of the sole count of first-degree murder and sentenced him to death. See Montejo, 974 So.2d at 1250. Montejo appealed, but the Louisiana Supreme Court affirmed his conviction and death sentence, holding, in relevant part, that the district court did not err by admitting Montejo's handwritten apology to the victim's wife, because, although Montejo wrote it in the absence of legal counsel after his right to counsel had attached, he had not asserted his right to counsel and had knowingly, intelligently, and voluntarily waived that right. See id. at 1260, 1262.
At issue in this case is the Sixth Amendment, which provides that "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." U.S. Const. amend. VI. The U.S. Supreme Court has held that once the right to counsel has attached, the police may initiate interrogation without counsel present if the accused has not yet requested, retained, or "accepted by appointment" counsel. Patterson v. Illinois, 487 U.S. 285, 290 n.3 (1988). If the accused has requested counsel, the police may not initiate interrogation without counsel present, and any subsequent waiver of that right during police-initiated interrogation is invalid. See Michigan v. Jackson, 475 U.S. 625, 636 (1986); see also Louisiana v. Montejo, 974 So.2d 1238, 2006-1807, 1260 (La. 1/16/08).
On October 1, 2008, the U.S. Supreme Court granted Montejo's petition for certiorari to decide whether, under the Sixth Amendment, an indigent defendant is required to affirmatively accept the appointment of counsel in his or her defense in order to preclude police-initiated interrogation without counsel present.
Does the Sixth Amendment require an indigent defendant to affirmatively accept the appointment of counsel in his or her defense in order to preclude police-initiated interrogation without counsel present?
The Supreme Court's decision in this case will resolve an interpretive conflict between the Louisiana Supreme Court and Fifth Circuit, on the one hand, and the majority of state high courts, on the other. See Brief for Petitioner Jesse Jay Montejo ("Montejo") at 28-29. The Court's decision will potentially impact police interrogations and the admissibility of statements obtained during those interrogations.
Petitioner Jesse Jay Montejo ("Montejo") and amici curiae, the National Association of Criminal Defense Lawyers, American Civil Liberties Union, et al. ("NACDL"), contend that it is illogical and unfair to require an indigent defendant to affirmatively accept the appointment of counsel in his or her defense in order to preclude police-initiated interrogation without counsel present. See Brief for Petitioner at 21-22, 32; see also Brief of Amicus Curiae National Association of Criminal Defense Lawyers, American Civil Liberties Union, et al. ("NACDL"), in Support of Petitioner at 14-15, 24. Montejo, NACDL, and amicus Louisiana Public Defenders Association ("LPDA") argue that it is illogical to interpret a defendant's silence regarding the appointment of counsel as a waiver of his or her right to counsel, in particular, in jurisdictions where a defendant has no opportunity to request counsel prior to appointment and is not informed that he or she must affirmatively accept counsel thereafter. See Brief of Amicus Curiae Louisiana Public Defenders Association ("LPDA") in Support of Petitioner at 8; see also Brief for NACDL at 14-15, 24; see also Brief for Petitioner at 21-22. Furthermore, according to Montejo and NACDL, requiring affirmative acceptance of counsel is unfair due to the lack of uniformity within and between states regarding the appointment and acceptance of counsel. See Brief for NACDL at 14-15; see also Brief for Petitioner at 23.
Respondent State of Louisiana ("Louisiana") counters that affirmative acceptance is necessary to balance the rights of the accused with the interests of society in investigating, prosecuting, and punishing criminals. See Brief for Respondent State of Louisiana ("Louisiana") at 13 (citing Texas v. Cobb, 532 U.S. 162, 172, (2001) citing McNeil v. Wisconsin, 501 U.S. 171, 181 (1991), citing Moran v. Burbine, 475 U.S. 412, 426 (1986)). According to Louisiana, if the Supreme Court were to adopt Montejo's proposal, it would effectively foreclose a defendant from waiving his or her right to counsel after appointment and police from obtaining admissions of guilt, even if that defendant neither requested nor desired counsel. See id. at 10-11.
In addition, Louisiana argues that affirmative acceptance is a workable, bright line rule. See id. at 17. According to Louisiana, it clearly indicates to the police when to cease questioning the accused. See id. at 13. Furthermore, Louisiana contends that Miranda warnings alone adequately apprise a defendant of his or her Sixth Amendment right to counsel. See id. at 17.
Conversely, Montejo, NACDL, and LPDA counter that affirmative acceptance is neither workable, nor a bright line rule, because it would require a factual inquiry into the hearing at which defense counsel was appointed, and few courts keep detailed records of such hearings. See Brief for LPDA at 4; See Brief for NACDL at 19-20; see also Brief for Petitioner at 33-34. As a result, the police and prosecutors would be unable to clearly ascertain whether or not a defendant had accepted counsel. See Brief for NACDL at 20-21. Furthermore, according to LPDA, following hurricanes Katrina and Rita, Louisiana public defenders have become increasingly overburdened and under resourced would likely have insufficient resources to comply with an affirmative acceptance requirement. See Brief for LPDA at 1-2, 9, 11.
The Supreme Court's decision in this case will clarify when the full scope of a defendant's Sixth Amendment right to counsel attaches and potentially impact police interrogations and the admissibility of statements obtained during those interrogations.
Jesse Jay Montejo argues that police violated his Sixth Amendment rights by interrogating him after a lawyer had been appointed to him but before having the opportunity to meet his counsel. See Brief for the Petitioner, Jesse Jay Montejo, at 18. In Michigan v. Harvey, the Supreme Court decided that, once legal counsel has been either obtained or requested, any statement made by the defendant is inadmissible in court. See id. at 18 (citing Michigan v. Harvey, 494 U.S. 344, 352 (1990)). Moreover, police are not permitted to instigate pre-trial questioning once the accused has a lawyer. See id. The purpose of this rule goes to the essence of the adversarial nature of American trial system: by ensuring that the defendant's right to rely on his counsel remains intact, his counsel serves as an effective "medium," isolating the defendant from the prosecuting authorities of the State. See id. Montejo was appointed counsel at the 72-hour hearing, the very purpose of which is to assign counsel to indigent defendants. See id. at 16. The Supreme Court has held that the right to counsel attaches when judicial appointment proceedings, such as Louisiana's 72-hour hearing, have been conducted. See id. at 18-19 (citing Rothgery v.Gillespie County, 128 S. Ct. 2578, 2591 (2008)). Furthermore, the detectives cannot claim ignorance of counsel's appointment: knowledge of the actions of one state actor is imputed to another. See id. (citing Michigan v. Jackson, 475 U.S. 625, 634 (1986)). Consequently, the incriminating evidence that the detectives discovered during this illicit interrogation are inadmissible in court. See id. (citing McNeil v. Wisconsin, 501 U.S. 171, 179 (1991)).
Louisiana readily allows that the Sixth Amendment provides that the defendant shall have the aid of counsel. See Brief for the Respondent, State of Louisiana, at 10-11. However, it argues that a defendant must assert his right to counsel; it cannot be passively bestowed upon him. See id. at 10. The State contends that, under Montejo's reading, the defendant's right to choose would be negated as he would not be able to waive his right to counsel. See id. at 11.
Montejo returns that Louisiana's argument that defendants need to "affirmatively accept" appointed council is illogical. See Brief for the Petitioner at 20-21. He argues that it is wrong to interpret a defendant's silence as a wish to forgo having legal counsel. See id. at 21. Rather, it is more likely an indication of the defendant's unawareness of the need to speak during a routine procedure. See id. Moreover, Montejo points out that indigent defendants in Louisiana are not even asked whether they wish a lawyer, and, therefore, are not granted occasion to actively accede to the appointment. See id. Nor is there any evidence that Montejo gave any indication that he did not wish to have counsel appointed to him, thus making the State's conduct an illogical and illegitimate departure from the ordinary. See id. at 22. Moreover, the Supreme Court has held that "presuming waiver from a silent record is impermissible." See id. at 28 (citing Carnley v. Cochran, 369 U.S. 506, 516 (1962)).
Louisiana implicitly responds that its reading is not only logical but also warranted. See Brief for the Respondent at 13. Firstly, while the Constitution protects individual rights, it "does not negate society's interest" in having the police conduct interrogations. See id. Admissions of guilt are not only desirable, but also "essential to society's compelling interest in finding, convicting, and punishing those who violate the law." See id. Secondly, insistence upon the defendant's active invocation or assertion of his right to counsel also serves to discourage potential police pressuring to waive this right: once the right has been invoked, the police must cease communicating with the accused. See id. Conversely, Louisiana points out that without requiring a positive assertion of the right to counsel, police would be barred from approaching suspects regardless of whether they have expressed any form of unwillingness to be questioned. See id. at 14. Such a result is clearly not in society's interest. See id.
The State argues that Montejo's reading of passive appointment runs against the jurisprudence of the Supreme Court. See id. at 11. It points out that the Court has specifically noted that "the assertion of the right to counsel is a significant event." See id. (citing Edwards v. Arizona, 451 U.S.477 (1981)). The State points out that the Court has repeatedly taken special notice of defendants actively seeking to exercise the right to have counsel. See id. at 12 (citing Patterson v. Illinois, 487 U.S. 285, 290 (1988); Michigan v. Jackson, 475 U.S. 625, 636 (1986); and Maine v. Moulton, 474 U.S. 159, 170-171 (1985)). Moreover, looking at the other side of the coin, the State notes that the Court explicitly rejected the argument that the mere existence of an attorney-client relationship triggered the right to counsel. See id. at 12-13 (citing Moran v. Burbine, 475 U.S. 412, 430 (1986)).
Montejo argues to the contrary, saying that the approach taken by the Louisiana Supreme Court does not accord with the Supreme Court's precedents. See Brief for the Petitioner at 24-32. According to Montejo, the dispositive factors are, firstly, the attachment of Sixth Amendment rights, and, secondly, that the accused already has been appointed a lawyer. See id. at 26. Montejo observes that while the Court has held that a defendant may waive his rights to an attorney, it also made it clear that the defendant had not been already appointed counsel. See id. at 24 (citing Patterson v. Illinois, 487 U.S. 285, 290 n.3 (1988)). Moreover, in that same decision, the Court used the phrase "accepted by appointment," implying that appointment is a form of acceptance. See id. at 30. Elsewhere, the Court found that the appointment of counsel triggered Sixth Amendment protections, not a just request. See id. at 25 (citing Michigan v. Harvey, 494 U.S. 344, 352 (1990)). Finally, Montejo distinguishes Moran v. Burbine by remarking that the Supreme Court determined that the defendant's Sixth Amendment rights had not attached at the time of questioning because he, unlike Montejo, was not then under arrest. See id. at 27 (citing Moran v. Burbine, 475 U.S. 412, 428 (1986)). By implication, then, Sixth Amendment rights must be said to have attached to a defendant who has been already arrested, and for whom counsel has been obtained. See id. Looking to high courts of other states who have addressed this question, Montejo notes that "a strong majority . . . have concluded that appointment triggers the Sixth Amendment Jackson rule." See id. at 28.
Montejo also argues that, besides the fact that the approach taken by the Louisiana Supreme Court is contrary to Supreme Court precedents, it would also create impractical and unacceptable administrative issues. See id. at 32. Firstly, it creates a trap for the unwary by failing to give the accused any indication that an attorney has not been appointed, and that Sixth Amendment rights have not attached. See id. Secondly, the approach is administratively unsound as reviewing courts would be forced to review the "historical fact" of whether defendants had accepted attorney appointment. See id. at 33. The State brushes aside these arguments by saying that it is not too much to expect the accused to express his desire to exercise his right to counsel, and no further procedural measures are required. See Brief for the Respondent at 16-17.
The State concludes by arguing that even if an error is found, it was a harmless one given the other evidence which overwhelmingly indicates Montejo's guilt. See id. at 17. In addition to the confession letter, the jury also had some four hours of videotaped interviews in which Montejo admits to having shot Mr. Ferrari, which had been conducted prior to the interview in dispute. See id. at 18. Furthermore, rules of evidence would have allowed the letter's admission as impeachment evidence against Montejo's witness. See id. Montejo contends that it is the state's burden to prove that the error was harmless and that Louisiana cannot meet this burden because the letter is "highly probative of guilt." See Brief for the Petitioner at 37-38. Montejo argues that the letter permitted the prosecution "to raise highly damning evidence at all stages of the trial" and that such a result cannot be considered harmless. See id. at 40.
At first blush, the essence of this issue appears to be a matter of making sense of silence. However, it actually cuts much deeper: are Sixth Amendment rights applicable by default (and therefore present, even in silence), or must the defendant actively assert the desire to exercise these rights (meaning that the rights stand by passively until they are taken up)? Louisiana argues for the latter, saying that to do otherwise would negate the defendant's fundamental right of freedom of choice. Montejo contends otherwise, saying that his silence was illegitimately interpreted as a waiver. Contingent upon this issue is whether a confession letter that Montejo made during questioning by police was legitimately allowed to be entered as evidence. If Montejo's Sixth Amendment rights had attached already, as Montejo claims, then the letter was inadmissible; if Montejo's Sixth Amendment rights had not attached because he had failed to assert his desire to exercise the right to counsel, as Louisiana claims, then the letter was admissible.
Edited by: Joe Hashmall
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