You have to ask for me- Lessons from Montejo vs. Louisiana

How can cops interrogate you if they can’t talk to you because you have a lawyer? Even a false confession requires significant psychological pressure. The kind LEO can only exert without your defense lawyer present. Welcome to the new 6th amendment, it’s no longer a right, it’s a privilege (you have to assert!).

Time for the SCOTUS case of the day- Montejo vs. Lousiana.

What happened?
Jesse Montejo was arrested on September 6, 2002, for a robbery/murder. On September 10, Montejo was brought before a judge for a “72-hour hearing” and appointed counsel.

That same day, before Montejo’s lawyer could make it to the jail, the police picked up Montejo, Mirandized him again, and elicited more incriminating evidence.

What’s wrong with that?
Well, Montejo had a lawyer, and the police continued to interrogate him. The record isn’t clear that Montejo requested a lawyer, or even knew who his lawyer was. That shouldn’t matter. The right to counsel includes (or should) the right to actually meet with and/or speak to your attorney.

I’ve been appointed on cases and not known about the appointment for a few days. It’s not always possible for me to meet each client the instant I am appointed. I may have to change this approach if Montejo inspired officers start (or continue) to interrogate my clients post appointment.

Montejo had been in jail and interrogated for 3 days, at the very least he needed a break to speak with his attorney. SCOTUS acknowledges that Montejo would have been protected had he asked for a lawyer. Your new 6th amendment= the appointment of an attorney provides no protection. The public must be aware that the burden is on them to invoke their right to counsel.

Even without Jackson, few badger-ing-induced waivers, if any, would be admitted at trial because theCourt has taken substantial other, overlapping measures to exclude them. Under Miranda, any suspect subject to custodial interrogation must be advised of his right to have a lawyer present. 384 U. S., at
474. Under Edwards, once such a defendant “has invoked his [Miranda] right,” interrogation must stop. 451 U. S., at 484. And under Minnick v. Mississippi, 498 U. S. 146, no subsequent interro-gation may take place until counsel is present. Id., at 153. These three layers of prophylaxis are sufficient. On the other side of the equation, the principal cost of applying Jackson’s rule is that crimes can go unsolved and criminals unpunished when uncoerced confes-sions are excluded and when officers are deterred from even trying to obtain confessions. The Court concludes that the Jackson rule does not “pay its way,” United States v. Leon, 468 U. S. 897, 907–908, n. 6, and thus the case should be overruled. Pp. 13–18.

The Montejo lesson for police encounters; ask for an attorney, even if you already have one.