Friday, April 24, 2009

Rip out another little fragment of Constitutional protection, why don't you?

I hate to say this more than you know or would believe, but as the first hundred days comes to a close, the new boss is looking a lot more like the old boss--at least in court.

Today, the Obama/Holder Department of Justice is trying to overturn a 1986 Supreme Court ruling protecting the rights of 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 case at issue is Michigan v. Jackson, in which the Supreme Court said in 1986 that police may not initiate questioning of a defendant who has a lawyer or has asked for one, unless the attorney is present. The decision applies even to defendants who agree to talk to the authorities without their lawyers.

Anything police learn through such questioning cannot be used against the defendant at trial. The opinion was written by Justice John Paul Stevens, the only current justice who was on the court at the time.

The justices could decide as early as Friday whether they want to hear arguments on the issue as they wrestle with an ongoing case from Louisiana that involves police questioning of an indigent defendant that led to a murder confession and a death sentence.

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."

This, unfortunately, appears to be change that will get you convicted.


Delaware Watch said...

Shocking. It's hard to believe that anyone would support this. I once had a program stopped at Family Court (one in which juvenile defendants would tell me and others w/ my job title about their alleged crimes before they ever talked to an attorney)precisely on the basis that it was unconstitutional along these lines.

I'd like to read more about this. I wonder what is motivating it.

Steven H. Newton said...

So far I have only found the one article; I am sure there will be more.

But one sentence that I did not use in my clip possibly explains it. I paraphrase: Obama has now moved from campaigning to governing, and is expected to represent the interests of Federal prosecutors.That may go a long way in explaining it. But I have to tell you, I have thus far been severely disappointed in the Holder DOJ--and that is not speaking in an ideological sense as a libertarian, but as a constitutionalist.

Townie76 said...


Part of governing is knowing when to say, no, the Court has ruled, we are going to follow their rules. Miranda v. Arizona 384 U.S. 436 (1966) made it clear that when a accused criminal asks for an attorney, all questioning is over. What part of this decision does the government not understand, just because our heart are pure does not mean that we are above the decisions of the Supreme Court.

I am tired of us bending over backwards to prosecutors and police. I recently left Atlanta, where over a year ago, the police in full SWAT gear busted into the house of a 92 year women whom presuming her home was being invaded shot at them only to be shot dead by the police. The aftermath was the snitch who gave the police the info was lying and the police were dirty. Not all prosecutors and police are not paragons of virtue just because they are "thin blue line" and their hearts are pure.
The Obama administration needs to tell the prosecutors to stick it and if they don't like it quit and run for public office, after all they are political appointees.

Hank Foresman