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Obama DoJ Seeks to Narrow Defendants' Rights:

The Associated Press has an interesting story on the Justice Department's effort to limit or overturn Michigan v. Jackson, which limits the ability of the police to initiate questioning of criminal defendants.

The Obama administration is asking the Supreme Court to overrule long-standing law that stops police from initiating questions unless a defendant's lawyer is present, another stark example of the White House seeking to limit rather than expand rights. . . .

The Justice Department, in a brief signed by Solicitor General Elena Kagan, said the 1986 decision "serves no real purpose" and offers only "meager benefits." The government said defendants who don't wish to talk to police don't have to and that officers must respect that decision. But it said there is no reason a defendant who wants to should not be able to respond to officers' questions.

At the same time, the administration acknowledges that the decision "only occasionally prevents federal prosecutors from obtaining appropriate convictions."

The administration's legal move is a reminder that Obama, who has moved from campaigning to governing, now speaks for federal prosecutors.

More from SCOTUSBlog here.

ruuffles (mail) (www):
From end of article

Justice Samuel Alito first raised the prospect of overruling the decision at arguments in January over the rights of Jesse Montejo, the Louisiana death row inmate.

From scotusblog

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.
4.25.2009 10:30am
Monty:
Do I understand the position of the government correctly:

When presented for arraignment I can demand counsel in open court, be taken back to the interogation room and be questioned for a virtually unlimited duration, with no recording (I don't know federal practice but many police agencies don't record interogations), untill the police claim I confessed. Now despite clearly invoking my right to counsel, again in open court, it is still my word against thier's as to whether I confessed and whether that confession was voluntary?

Is the problem that his request for appointment of counsel wasn't clearly enough a request that interogation stop untill counsel was apointed? Would the government still argue this if in open court the defendent has said "I invoke my 5th and 6th amendment rights and would like to speak to a lawyer before talking to the police"? I find it very troubling if the police could claim a suspect later waived those same rights outside the presence of the court.
4.25.2009 10:50am
Soronel Haetir (mail):
Monty,

My understanding is that the feds affirmativly don't record. Which seems like an incredibly stupid abuse.
4.25.2009 11:09am
Oren:

The Obama administration is asking the Supreme Court to overrule long-standing law that stops police from initiating questions after defendant has asked for a lawyer unless a defendant's lawyer is present, another stark example of the White House seeking to limit rather than expand rights. . . .

That's quite an omission there. Honestly, I think "I'd like to talk to my lawyer" is the semantic equivalent of "I decline to answer any further questions until I talk to my lawyer" and should be interpreted that way.

Then again, this seems like civil-rights equalization to me -- can't let the stupid defendants screw themselves over by talking to the police ...
4.25.2009 11:15am
Sarcastro (www):
The first question that will now be asked is "Are you now or have you ever been a member of any party other than the Democrats?"

And then the night sticks come out.
And then the death squads.
4.25.2009 11:41am
PC:
The first question that will now be asked is "Are you now or have you ever been a member of any party other than the Democrats Socialist Party?"

Fixt.
4.25.2009 11:55am
Monty:
I think "I'd like to talk to my lawyer" is the semantic equivalent of "I decline to answer any further questions until I talk to my lawyer"

What about anwsering yes to: "Are you unable to afford a lawyer and would you like one apointed to represent you"?

I'd like to have a laywer apointed is a bit further from a direct invocation.


Also, can anyone explain a rationale for not requiring all confessions to be recorded on video, given the very low cost of digitial recording? It seems to me that it would both protect defendants against false confession, and prevent defendants from denying a confession they did make...
4.25.2009 12:09pm
BGates:
I'd occasionally wondered if sarcastro was an ideologue who happened to agree with every position of the Democratic party c. 2006-2008, or a partisan hack who would argue for or against anything as party loyalty demanded. Glad we have that cleared up.
4.25.2009 12:20pm
Soronel Haetir (mail):
Monty,

But if you don't record then you can't watch the fibbies lying to the suspect to get them to say something incriminating.
4.25.2009 12:44pm
Monty:
Soronel,

I thought it was legal for law enforcement to lie about most things during an interogation. Is it just that the public learning that would make them look bad?
4.25.2009 12:53pm
33yearprof:
My understanding is that the feds affirmativly don't record. Which seems like an incredibly stupid abuse.


Correct. This is what tripped up Martha Stewart. She went to prison based on an FBI agent's after the fact notes of he remembered that he had understood her to say. There was no evidence available of what she ACTUALLY did say. LESSON: always do your own recording.

Minnesota does require recording (by S. Ct. decision).

An FBI agent "confession specialist" from Milwaukee got caught "red handed" ignoring several (18, IIRC) requests for counsel while breaking down a defendant's resistance. Luckily, it was a state case and the confession was suppressed. The agent didn't know about the recording and he just followed normal federal practice, lied about it, and thought he'd get away with it. He did get away with it as far as his employer, the FBI, was concerned. This happened in Cannon Falls, MN about 8 years ago.

Also, can anyone explain a rationale for not requiring all confessions to be recorded on video, given the very low cost of digitial recording?


Yes. It prevents disclosure of police misconduct. And, most importantly, it results in more convictions.

Scalia, Alito, and company seem to support convictions at any cost. These Justices appear to have forgotten that the Constitution exists for the millions of us who can be/are abused by police but can't appeal because we aren't convicted. Every appellant is a convict, it's the nature of the legal process. Duh.
4.25.2009 12:59pm
Soronel Haetir (mail):
It's legal but the jury might not like it.
4.25.2009 1:00pm
Soronel Haetir (mail):
I believe Alaska (where I live) also requires recording. I believe the rule may be wider than just custodial interrogations in fact, I seem to recall a statment that all interviews in serious felony investigations are to be recorded.

Not sure how serious felony would be distingushed, but it seems better than the fed's rule.
4.25.2009 1:07pm
Ben P:

LESSON: always do your own recording.



For some reason, the image that popped into my head is a suspect breaking out a portable tape recorder while being questioned by the police and asking "do you mind if I record this?"

Don't think that'd fly.
4.25.2009 1:09pm
Dave N (mail):
Scalia, Alito, and company seem to support convictions at any cost.
Except when they don't--such as the case way back on Tuesday, when Scalia (and Thomas) were part of the 5-4 majority limiting police searches of automobiles.
4.25.2009 1:14pm
glangston (mail):
33yearprof:

Scalia, Alito, and company seem to support convictions at any cost. These Justices appear to have forgotten that the Constitution exists for the millions of us who can be/are abused by police but can't appeal because we aren't convicted. Every appellant is a convict, it's the nature of the legal process. Duh.



Defendants don't have much of a chance with Scalia, Alito and company carrying Obama's water. Makes you wonder what sort of SC nominee welll see from the President.
4.25.2009 1:18pm
Ben S. (mail):

Scalia, Alito, and company seem to support convictions at any cost. These Justices appear to have forgotten that the Constitution exists for the millions of us who can be/are abused by police but can't appeal because we aren't convicted. Every appellant is a convict, it's the nature of the legal process. Duh.


You're kidding, right? I hope it's not law you teach; Scalia is widely regarded as one of the most defendant-friendly justices on the Court. (This from my friends who work in public defenders' offices throughout the country.) Examples of Scalia's pro-convict opinions that spring to mind are Maryland v. Craig, Crawford v. Washington, Kyllo v. United States, Thornton v. United States, Illinois v. Caballes, and of course Arizona v. Gant. In each case, Scalia joined (Caballes) or wrote opinions expressly finding in favor of criminal defendants and overturning convictions. I'm sure there are others that I can't think of off the top of my head. He often joined the more traditional liberals in doing so (see Caballes, Gant) or, in other cases, actually fought with them to make his pro-convict point (see Kyllo, Craig).

This hardly qualifies as a justice who supports convictions "at any cost." I hope you don't spread this ill-informed, politically biased drivel to your students.
4.25.2009 1:24pm
pintler:

I seem to recall a statment that all interviews in serious felony investigations are to be recorded.


I agree that interviews should be recorded whenever possible. I would argue for an exception for reluctant witnesses in some cases, e.g. the witness who saw the gangland hit and says 'the shooter was Guido, but you didn't get it from me'.

There are also practical considerations with field interviews. Maybe the rule should be that if there is a dispute about what was said at an unrecorded interview, the recollection of the person being interviewed is presumed to be correct; that would encourage recording whenever possible, I would think.
4.25.2009 1:39pm
Soronel Haetir (mail):
I believe field interveiws are allowed to use audio only, which I am fine with. Setting up a reasonable video shot in the field is quite a bit more difficult than a usable audio track.
4.25.2009 1:47pm
Anderson (mail):
Once the suspect says, "I want to talk to my lawyer," that should be it. No more questions.

In a perfect world, what DOJ suggests would fly; but in practice, police will abuse it. Police have the power; the suspect doesn't; the rules have to weigh towards the suspect to address that imbalance.
4.25.2009 1:50pm
Dave N (mail):
The only modification I would make of the Jackson rule would be to require an affirmative request for counsel--that is, once an indigent has made the formal request for counsel or retained counsel has made an appearance, Jackson should apply.
4.25.2009 2:19pm
Richard Aubrey (mail):
It's all good, guys. Duh Won Won.

Talk Left isn't happy but doesn't seem to be regretting the decision.
I don't think any of the folks who voted dem will ever publically admit that they regret doing so. But their smiles....ahh, their smiles bring joy to my heart. Novocain smiles, they are.
4.25.2009 2:24pm
Ben P:

Talk Left isn't happy but doesn't seem to be regretting the decision.
I don't think any of the folks who voted dem will ever publically admit that they regret doing so. But their smiles....ahh, their smiles bring joy to my heart. Novocain smiles, they are.


Is it really necessary to bring out all of the times some sector of the conservative base had a disagreement with Bush?

Of course some on the left disagree with some things Obama does. Our political parties are loose coalitions by nature. If there was one single Political outcome of the Bush presidency it's that he caused the Democrats to be an even wider coalition than they were before, and that's saying something for the party that somehow managed to be both the party of industrial labor movements and anti-industry greens.

In some ways he's been more liberal than some in his coalition want, and in quite a few other ways he's been more conservative. (If these terms even have meaning that is.)
4.25.2009 3:23pm
Oren:

I'd like to have a laywer apointed is a bit further from a direct invocation.

I suppose, although it's not that ambiguous.


Also, can anyone explain a rationale for not requiring all confessions to be recorded on video, given the very low cost of digitial recording? It seems to me that it would both protect defendants against false confession, and prevent defendants from denying a confession they did make...

Even worse, my State is 2-party consent, so I can't just turn my phone on to "record" mode and leave it my pocket while I talk to the police. Various citizens have done that and been hauled into court for "wiretapping".b Even worse, the police have answer 911 calls with "This call is recorded".

I put a "All conversations subject to recording" decal on the rear left window of my car for this exact purpose ...
4.25.2009 3:50pm
ArthurKirkland:
There might be a reason not to require a recording of every confession/interrogation, but I find it difficult to think of a good one.
4.25.2009 4:01pm
rosetta's stones:
Barrack should tread lightly on these civil liberties issues, but so far he seems to be stomping. I noticed somewhere that Holder's JD recommended a max. sentence for a medical marijuana distributor, which they'd implied previously they'd be backing away from.
4.25.2009 5:02pm
Soronel Haetir (mail):
Dave N,

And how do you then deal with the case at bar where the D's response to appointment of counsel was not recorded?

This was apparently asked about at oral argument, to either the SG or LA AG, would a simple "Thank you" be enough or would something more be required?

The parties in this case even seem to agree that in the post arraignment meeting the D openned by saying he thought counsel had been appointed but the police went ahead with Miranda anyway.
4.25.2009 5:50pm
whit:

Even worse, my State is 2-party consent, so I can't just turn my phone on to "record" mode and leave it my pocket while I talk to the police. Various citizens have done that and been hauled into court for "wiretapping".b Even worse, the police have answer 911 calls with "This call is recorded".

I put a "All conversations subject to recording" decal on the rear left window of my car for this exact purpose ...



my state is two party and it's a misdemeanor to violate it.

furthermore, the courts (last i checked) allow citizen recording of police (w/o consent), but NOT police recording of citizen (w/o consent)

interesting double standard that.

the rationale to allow the former is that it is not a "private conversation", and thus not subject to the law.
'
i agree, but it should work both ways
4.25.2009 9:24pm
Soronel Haetir (mail):
Whit,

I can see the rationale, police already have enough power over citizens in many encounters.

I could also see a rationale for a blanket recording policy of police action. I would find leeway in this area far more damning.

An example (though I think this is waning), the two stage interrogation where first the suspect is broken and then a recorded confession is taken. I have huge problems with the unrecorded portion, especially given that it is usually much longer than the recorded portion, often by a factor of hours per minute of the final product.
4.25.2009 11:25pm
whit:
it;s not about "power". it's about being able to use a means to mechanically record stuff you can already testify about.

the typical anti-police reaction is that they should be allowed to record US, but we shouldn't be allowed to record them.

that's retarded.

all recordings do is allow an UNBIASED INARGUABLE record of what is already observed/heard by both parties present.

and we should have JUST as much right to do it to you, as you have to do it to us.

cause it protects US from false complaints, and protects you from the same.

to paraphrase, i find your double standard disturbing.
4.26.2009 12:53am
Soronel Haetir (mail):
Whit,

Look at the 911 thread where we already have people saying they would refrain from calling due to the risk that the recording would get aired.

While I can see that as being a rational concern in some circumstances, DV as an example, I find it far stranger when considering something like calling in a potential wildfire or a wreck on the highway.
4.26.2009 2:20am
Richard Aubrey (mail):
Ben P.
Problem isn't "disagreement". Problem is the superior, sneering attitudes of the dem voters, the insistence that everything, just everything Bush did was beyond awful--the voters apparently having overlooked McCain--and that O was going to fix everything.
One truthful thing O said was that he was a blank slate on which people saw what they wanted to see.
Despite having been told.
Qualititively, this is 'way different from "disagreement".
Conservatives who voted for Bush didn't think they were elected Mr. Fixit who could never do wrong.
4.26.2009 8:57am
pintler:

my state is two party and it's a misdemeanor to violate it.

furthermore, the courts (last i checked) allow citizen recording of police (w/o consent), but NOT police recording of citizen (w/o consent)


I recall a debate whether dash cams (and the corresponding audio recordings) were legal a few years ago. That resulted in, I think, RCW 9.73.090, which exempts police from the requirements of 9.73.030 thru 080. I don't see anything in 9.73 that makes an exception for private citizens to secretly record non-public conversations with police.

This is all concerning non-public conversations; the police can openly record in public (occasionally demonstrators object on policy grounds, but I don't recall anyone suggesting it is illegal), and private citizens can openly record in public, including e.g. officers making an arrest. There are periodic cases where officers object to that, but IIRC the resulting charges are always eventually dismissed.

Anyway, I'd be interested in any cases or code that say private citizens may record in circumstances where the police can't.
4.26.2009 10:22am
Oren:



furthermore, the courts (last i checked) allow citizen recording of police (w/o consent), but NOT police recording of citizen (w/o consent)


In MA, even recording an on-the-job LEO while he discharges his official duties requires his consent.


and we should have JUST as much right to do it to you, as you have to do it to us.


I agree that a normal conversation with a police officer (or if you call 911 FFS) has no expectation of privacy.

On the other hand, no hidden mics or other funny business. You can record what I say to your face, no more. Videotaping a public demonstration is OK, but no high-power directional mics to capture private conversations.

Fair enough?
4.26.2009 12:36pm
Oren:

This is all concerning non-public conversations; the police can openly record in public (occasionally demonstrators object on policy grounds, but I don't recall anyone suggesting it is illegal), and private citizens can openly record in public, including e.g. officers making an arrest.

In Massachusetts, the Supreme Judicial Court held in Commonwealth v. Michael Hyde, 434 Mass. 594 (Mass. 2001), that secretly recording a police officer constitutes a violation of Massachusetts' wiretapping statute (Chapter 272: Section 99. Interception of wire and oral communications).

Hyde was recording police officers effecting a traffic stop on him.
4.26.2009 12:40pm
einhverfr (mail) (www):
RS:

Barrack should tread lightly on these civil liberties issues, but so far he seems to be stomping. I noticed somewhere that Holder's JD recommended a max. sentence for a medical marijuana distributor, which they'd implied previously they'd be backing away from.


Us civil libertarian types will continue to hold his feet to the fire.... It is also a reminder about how little campaign rhetoric matters.
4.26.2009 3:15pm
hattio1:
Soronel says;

I believe Alaska (where I live) also requires recording. I believe the rule may be wider than just custodial interrogations in fact, I seem to recall a statment that all interviews in serious felony investigations are to be recorded.

Not sure how serious felony would be distingushed, but it seems better than the fed's rule.


Actually, the case is Stephan and it says that you have to record custodial interrogations when feasible and particularly at a place of detention. It also says you have to record the Miranda warnings and waiver. It's based on Alaska's Due Process clause in the State Constitution.
4.26.2009 4:17pm
hattio1:
Pintler says;

I agree that interviews should be recorded whenever possible. I would argue for an exception for reluctant witnesses in some cases, e.g. the witness who saw the gangland hit and says 'the shooter was Guido, but you didn't get it from me'.


In Alaska at least, the rules regarding the requirement to record only relate to defendants. So, if the guy is claiming he's a witness, you don't HAVE to record him. On the other hand, if you think he's a witness, and he all of a sudden confesses, you got problems. Also it's the cops word against the witness if there's a disagreement at trial.
4.26.2009 4:21pm
hattio1:
Whit says;
<blockquote>

<it;s not about "power". it's about being able to use a means to mechanically record stuff you can already testify about.

the typical anti-police reaction is that they should be allowed to record US, but we shouldn't be allowed to record them.

that's retarded.

all recordings do is allow an UNBIASED INARGUABLE record of what is already observed/heard by both parties present.
/blockquote>
While I have no problem with the police being allowed to record (indeed, I think they should be required to record), it's not exactly the case that a recording is automatically unbiased. As another commenter mentioned it used to be quite common for hours-long interrogations to be followed by a confession that was taped that was often less than five minutes. In that case, the recording is not unbiased because is leaving out everythign that occured to get the confession, including potentially threats, offers of leniency, lies, etc.
4.26.2009 4:25pm
Fub:
whit wrote at 4.25.2009 9:24pm:
my state is two party and it's a misdemeanor to violate it.

furthermore, the courts (last i checked) allow citizen recording of police (w/o consent), but NOT police recording of citizen (w/o consent)

interesting double standard that.
As I recall (perhaps erroneously), consent is implied if a party is informed that his words are being recorded and he continues speaking, even if he says "turn off the recorder", as long as the recording party doesn't mislead the other party, eg: "OK, I've turned off the recorder." That may vary by state, but I'm pretty sure it's that way in CA, at least between non-state actors.

Otherwise, I can't imagine how anybody could be convicted of Cal. Penal Code 653m (telephone harassment) for leaving threatening messages on an answering machine. How can the caller NOT be consenting to recording in that case?
4.26.2009 9:45pm
David Schwartz (mail):
Whit: The problem is that you can say horrible things about my mother and then turn your recorder on while I say the same things about yours.
4.27.2009 9:15am

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