Q and A on Montejo v. Louisiana Oral Argument With Alan Raphael

Can you briefly review how this case got to the Court and what are the main issues?
Jesse Jay Montejo is appealing from his Louisiana murder conviction and death sentence, which were affirmed by the Supreme Court of Louisiana. He is asking the United States Supreme Court to rule that the Louisiana court erred in holding that his incriminating written letter of apology to the victim’s wife was properly introduced into evidence. Montejo argues that the letter was obtained in violation of his Sixth Amendment right to counsel because it was written at the suggestion of police after counsel was appointed to represent him, but before he had the opportunity to consult with his attorney, and thus he could not make a valid waiver of that right.

Michigan v. Jackson, 475 U.S. 625 (1986), holds that a statement obtained by police after the right to counsel attaches, and the defendant has “assert[ed] or invoke[ed]his right to counsel,” is inadmissible in evidence if the police initiated questioning in the absence of counsel. Montejo had counsel appointed in a court proceeding in which he never spoke; thus he did not indicate that he wanted or accepted the appointment of counsel. The Louisiana court held that, absent any indication that Montejo wanted counsel, either at the time of appointment or before writing the statement, application of Michigan v. Jackson was inappropriate and the statement was admissible because Montejo validly waived his constitutional rights.

How did the argument go?
This was a case that engaged the Justices, with all but Justice Thomas questioning counsel. Two Justices, Scalia and Alito, queried whether Jackson should be overruled, while Chief Justice Roberts asked whether applying Jackson to this case would extend the rule of that decision to a situation in which the defendant never requested counsel in or out of court before responding to police questions. Justices Scalia, Souter, and Kennedy asked Montejo’s counsel the purpose of Jackson and whether compliance with the Fifth Amendment requirements of Miranda v. Arizona would be sufficient to protect the defendant’s rights. Justice Ginsburg focused on whether it was fair to require Montejo to state his acceptance of appointment of counsel when the Louisiana procedure does not provide for his speaking at that time or inform him that his failure to do so may have adverse consequences.

Much of the questioning of counsel for Louisiana concerned the facts of the case, including whether it was reasonable to assume that all police officers knew or should have known that counsel had been appointed for Montejo, and whether Louisiana was requiring a defendant to request counsel, or whether Jackson would be applicable if the defendant never requested counsel, but agreed to or accepted the court’s appointment of an attorney.

Which if any side do you think should have come out feeling good about their hour in Court?
Probably the defendant should come out of oral argument encouraged by the questioning. In so many cases, Justice Kennedy is the decisive swing vote. In this case, he appeared to favor Montejo at a couple of points. Kennedy indicated that he did not “know what functional purpose is served by [the state’s] position that he [Montejo] had to request the lawyer at the arraignment. …” At other points, Kennedy appeared to agree with Scalia that admissibility of the written apology should be governed by Miranda but, unlike Scalia, Kennedy suggested he saw a serious Miranda problem because Montejo testified that police erroneously told Montejo that he did not have a lawyer after one was appointed for him.

What do you think the Court saw as the strongest argument?
Because the Court appeared greatly divided, different points appeared most important to different judges. Several Justices viewed Montejo’s argument as either an extension of Jackson to situations involving no invocation or request for counsel before the incriminating statement was made or doubted the appropriateness of the Jackson rule. For them, the strongest argument was that Montejo never asked for counsel in court or afterwards in police custody and never indicated that he accepted the court’s appointment of counsel.

To another group of Justices, the strongest arguments were two made by Montejo’s counsel. First was that Jackson provides a clear rule that once counsel has been retained by or appointed for a defendant, waiver of Sixth Amendment rights is possible only if the defendant initiates questioning or discussion about the crime, but not if the police initiated it. Second was that it is unreasonable to require Montejo either to request counsel when counsel has already been appointed, or to accept the appointment when such acceptance is not required by the appointing court. Montejo’s counsel pointed out that about half of the states have judges ask a defendant if he or she wants appointed counsel, and half, like Louisiana, do not do so. Montejo’s argument that this factual difference should not affect the Sixth Amendment waiver rule appeared to appeal to several members of the Court.

Which argument seemed to get the least traction with the Justices?
The attorney for Louisiana at times argued that the Jackson rule applied only if the defendant made a request for counsel, which did not occur in this case. That troubled several members of the Court, because it was inconsistent with the ruling of the Supreme Court of Louisiana, which indicated that an acceptance of appointment of counsel would suffice to make Jackson applicable. For these Justices, a request differed from an acceptance, and they questioned whether the state was asking them to affirm on a basis different from that relied on by the Louisiana court.

Were there any questions or discussions that were particularly illuminating or surprising?
That the Court would seriously consider overruling Jackson is consistent with prior opinions of three of the Justices. That some of them would consider doing so in this case is surprising because the issue was not part of the question on which the Court granted certiorari and thus was not briefed by the parties. The repeated references to the Fifth Amendment Miranda rule and to facts regarding possible coercion involved in obtaining the incriminating statement in this case are surprising, because these issues, although important in the Louisiana decision, were not contained in the grant of review or discussed extensively in the parties’ briefs.

What was the media coverage of the argument like?
There was only limited media attention to this case. Before the argument, an editorial in the Washington Post called the Louisiana ruling “ridiculous” and advocated applying Michigan v. Jackson whenever counsel is appointed for a defendant. Joan Biskupic of USA Today recognized that the Justices were split and saw the issue as being the scope of the Jackson ruling. According to Adam Liptak of the New York Times, several justices were unconvinced by the Louisiana court requirement that a defendant needed to affirmatively accept appointment of counsel before the Jackson rule can apply.

Any guesses on how the case will be resolved? Did any of the Justices show their hand?
It is not possible to be certain of the position of Justices from their questions at oral argument. Justice Scalia did make clear that he favors overruling Jackson. Justice Alito questioned relying on long-held precedents which he believes to have misinterpreted the United States Constitution, specifically criticizing to the language in the Dickerson decision a few years ago which reaffirmed Miranda and indicated that well established constitutional rules should be given deference and should only rarely be overruled. He appeared to agree with Scalia that Jackson should be overruled. Roberts seemed critical of Montejo’s argument as an extension of Jackson, but did not express any criticism of Jackson itself.

Questioning by the Justices appears to indicate that a majority of the Court is critical of the Louisiana requirement of a defendant’s having to accept appointment of counsel. However, Kennedy’s questions and comments suggest that he would prefer to decide admissibility of all incriminating statements under Fifth Amendment voluntariness and Miranda standards rather than under Jackson. If that means that he would abandon Jackson as a Sixth Amendment rule, there may currently be a majority of the Court willing to reverse Jackson, although it remains unclear that they would do so in this particular case.