Posted on January 13, 2009 at 9:45 am by Eliza Presson
Stanford student David Muraskin previews the first case to be heard this morning, Montejo v. Louisiana (No. 07-1529).
The Sixth Amendment provides a right to counsel at each â€œcritical stageâ€ of a criminal proceeding. This case addresses whether a defendant must affirmatively accept the appointment of counsel to receive the protections of that right, particularly the protection not to be interrogated by the state without counselâ€™s presence or consent.
Based upon the facts and briefing discussed below, it seems likely that the Court in this case will reject the Louisiana and Fifth Circuit rule, which denied petitioner the protections of the Sixth Amendment because he did not affirmatively accept the appointment of counsel. The cert. stage briefing demonstrates that such a rule is alone on the minority side of a lopsided split, with both state and federal courts holding that a defendant is not required to affirmatively accept the appointment of counsel to be covered by the Sixth Amendment. Moreover, the limited briefing performed by respondent, relying heavily on dicta in prior Court cases, provides few avenues for the Court to uphold the lower court opinion without overruling its own precedent.
The relief the Court will grant, however, appears less certain. Respondentâ€™s most compelling arguments go to whether the Louisiana rule, if unconstitutional, produced harmless error in this case. Consequently, the Court could hold the rule unconstitutional, but remand the case for a hearing as to whether it produced harmless error. Yet, petitionerâ€™s briefing indicates that he suffered an additional constitutional violation beyond that encompassed in the question presented, namely the denial of his Fifth Amendment right to counsel during his initial interrogation. Thus, his aim seems to be to inflame the Court against the state, so that the Court feels it must reverse his conviction in order to ensure a just outcome.
In late 2002, Patricia Ferrari returned to her Slidell, Louisiana home to discover her husband, Lewis Ferrari, dead on the kitchen floor from gunshot wounds to his head and chest.
Suspicion quickly turned to Jerry Moore, whom Mr. Ferrari had employed in his dry-cleaning business. In the months leading up to the murder, Mr. Ferrariâ€™s relationship with Mr. Moore had soured; witnesses contend that the two had argued publicly (including on the day of the murder) because Mr. Moore had lost his driverâ€™s license and was forced to rely on a friend, Jesse Jay Montejo, for transportation, making Mr. Moore unreliable.
Mr. Ferrariâ€™s neighbors reported that they saw Mr. Montejoâ€™s vanâ€”known for its distinctive chrome cattle bar on its front bumperâ€”carrying a passenger and speeding away from the area around Mr. Ferrariâ€™s home around the time of the murder. Mr. Ferrariâ€™s white Lincoln, which had been stolen from his home, was seen closely following the van. Subsequent forensics found Mr. Montejoâ€™s DNA under Mr. Ferrariâ€™s fingernails.
Based on this evidence, the police conducted a lengthy interrogation of Mr. Montejo, who produced seven distinct explanations for and descriptions of the crime. After about five hours, Mr. Montejo requested an attorney. The detectives immediately ended their questioning; however, on their way out of the room one detective informed Mr. Montejo that the request had â€œlet [the detective] down.â€ Ten minutes later a video camera recording the interrogation was turned back on, and it captured Mr. Montejoâ€™s sobbing revocation of his request for counsel. The detectives later claimed Mr. Montejo â€œbeg[ged]â€ them to allow him to reconsider his request for counsel.
Mr. Montejoâ€™s subsequent descriptions of the crime amounted to a confession that he was involved with the murder along with two accomplices, Mr. Moore and an individual identified only as â€œD.P.â€ Following these statements, Mr. Montejo and Mr. Moore were arrested for murder.
Consistent with Louisiana law, soon after his arrest Mr. Montejo was brought before a judge for a â€œ72-hour hearing,â€ intended to allow for the appointment of counsel and establish the amount of bail.. The hearing is considered a â€œcritical stage.â€ However, the record does not indicate how Mr. Montego responded to the appointment, and the judge did not seek to elicit Mr. Montejoâ€™s formal acceptance of the representation.
The day after the hearing, the same detectives who had previously interrogated Mr. Montejo asked for his assistance in locating the murder weapon. Petitioner contends, and respondent does not disagree, that this too was a â€œcritical stage.â€ Mr. Montejo said that he believed he was represented by counsel, but the detectives informed him otherwise. (The detectives later claimed that they were unaware Mr. Montejo was represented, even though a representative of the police department attended Mr. Montejoâ€™s 72-hour hearing.) The detectives read Mr. Montejo his Miranda rights, which he agreed to waive, and proceeded to question him about the crime without his counsel present. During this questioning, Mr. Montejo wrote a note to Mrs. Ferrari in which he apologized for murdering her husband and indicated that he had only intended to commit a â€œsimple burglary,â€ which in Louisiana is a technical legal term that describes a particular level of offense within the penal code. The detectives testified at trial that Mr. Montejo spontaneously produced the letter. However, Mr. Montejo testified that the letter was dictated to him by the detectives.
When his trial began, Mr. Montejo sought to suppress both the statements made during his interrogation and the letter he wrote Mrs. Ferrari. He argued that he was coerced into revoking his request for counsel during the initial interrogation, and that the letter was the product of an interrogation that occurred at a â€œcritical stageâ€ after the appointment of counsel, without his counselâ€™s presence or consent. The trial court denied his motion, instead accepting the stateâ€™s argument that both statements had been given voluntarily, following proper Miranda warnings, making them admissible.
At trial, the state relied heavily on Mr. Montejoâ€™s letter, while Mr. Montejo altered his narrative of events and argued that although he had been involved in an altercation with Mr. Ferrari prior to the murder, he did not take part in the shooting. Mr. Montejo was convicted of first-degree murder and sentenced to death.
On appeal to the Louisiana Supreme Court, Mr. Montejo raised twenty issues for review. However, the court only considered in detail the two issues raised by Mr. Montejoâ€™s motion to suppress, rejecting both claims. Regarding the admission of the letter, the Louisiana Supreme Court agreed that the 72-hour hearing was a â€œcritical stage,â€ requiring the appointment of counsel. As a result, the court â€“ citing Michigan v. Jackson (1986) â€“ explained that had Mr. Montejo requested representation by counsel, the police could not have questioned him further in the absence of his counselâ€™s consent or presence. However, relying on state precedent, State v. Carter (1995), and the controlling Fifth Circuit case, Montoya v. Collins (1992), the court concluded that counsel is not â€œrequestedâ€ if a defendant merely accepts court-appointed counsel without making some affirmative statement or indication that he desires representation. As a result, Mr. Montejoâ€™s interrogation following the 72-hour hearing was not governed by the Sixth Amendment right to counsel. Instead, the court only needed to find that Mr. Montejo voluntarily waived his right to counsel, which (based upon his signed Miranda waiver) the court concluded he had. Thus, the fruits of the interrogation were admissible.
Petition for Certiorari
Mr. Montejo filed a petition for certiorari, asking the Supreme Court to consider the question whether he needed to affirmatively accept the appointment of counsel at a â€œcritical stageâ€ to subsequently receive the protections of the Sixth Amendment.
Mr. Montejo presents three reasons that cert. should be granted. First, he contends that Louisianaâ€™s rule requiring affirmative acceptance of the appointment of counsel is on the minority side of a 4-1 split among state supreme courts. According to petitioner, state supreme courts in Wisconsin, Arkansas and Texas have all concluded that a defendant receives the full panoply of Sixth Amendment protections even when he remained silent during the appointment of counsel. Moreover, petitioner notes that the Louisiana rule, and the Fifth Circuit decision upon which the Louisiana Supreme Court relied in establishing that rule, are at odds with the holdings of the Eleventh Circuit, which has explicitly rejected the argument that a defendant must affirmatively accept the appointment of counsel at a â€œcritical stage.â€
Second, Mr. Montejo argues that Louisiana and the Fifth Circuitâ€™s rules are inconsistent with the Courtâ€™s jurisprudence on the right to counsel. Petitioner notes that under Faretta v. California (1975), a defendant may proceed pro se only if he affirmatively waives the right to counsel, suggesting that he does not need to request the right for it to attach.
Third, petitioner argues that a rule requiring defendants to affirmatively invoke their right to counsel is inefficient, as it requires reviewing courts to conduct a fact-intensive inquiry. By contrast, a bright-line rule â€“ i.e., that the Sixth Amendmentâ€™s protections apply after counsel has been appointed at a â€œcritical stageâ€ â€“ would allow courts to make quick rulings as to the constitutionality of subsequent interrogations.
Opposing certiorari, the state did not contest the existence of a split. Instead, it made four arguments. First, the Courtâ€™s precedents in Patterson and Jackson suggest that the defendant must affirmatively request the appointment of counsel to receive the protections of the Sixth Amendment right to counsel. Second, the Court in Patterson suggested Miranda warnings would suffice to waive the right to counsel at a â€œcritical stage.â€ Third, the letter did not result from an interrogation, but rather from Mr. Montejoâ€™s independent and voluntary decision to write the letter while he was with the police discussing other matters. Fourth, any error created by admitting the letter into evidence was harmless, because the jury would in any event have convicted Mr. Montejo in light of his taped confessions and the DNA evidence.
Petitionerâ€™s merits brief largely tracks the substantive arguments made in his cert. petition. The brief begins by reviewing a series of Court cases that, in petitionerâ€™s view, establish that once counsel has been appointed, the protections of the Sixth Amendment right to counsel apply, regardless of the defendantâ€™s silence or lack of affirmative response to the appointment. In particular, petitioner points out that while Patterson holds that a defendant may be interrogated following a proper Miranda warning when counsel has not yet been appointed, the Court in that case distinguished such a scenario from an interrogation that occurs once the accused has obtained counsel â€“ which, the Court explained, generates a distinct set of constitutional protections. Similarly, petitioner cites Michigan v. Harvey (1990), Moran v. Burbine (1986), and United States v. Henry (1980), for the proposition that once a defendant is represented by counsel, the unique protections of the Sixth Amendment right to counsel apply, regardless of how that counsel is obtained. Moreover, petitioner reiterates that Faretta stands for the proposition that the Sixth Amendment right to counsel must be affirmatively waived because it is presumed to automatically apply absent waiver.
Petitioner next argues that it is both reasonable for a defendant to remain silent once counsel is appointed and that any contrary rule would risk disparate treatment for defendants based on where they are charged. Petitioner reasons that because defendants are not typically informed that they have to affirmatively accept the appointment of counsel, with the appointment instead presented to defendants as a routine procedural matter, there is no reason for defendants to believe that they need to affirmatively accept the appointment of counsel. What is more, as in Louisiana, most jurisdictions neither document how the defendant reacted to the appointment of counsel nor ask defendants whether they desire representation. Thus, a rule that required the affirmative acceptance of counsel would provide such defendants fewer protections both in the trial court and on appeal than if they were charged in a jurisdiction that does document the defendantâ€™s reaction.
In addition, petitioner suggests that even if a record of the defendantâ€™s responses to the appointment of counsel were available, Louisianaâ€™s rule would be inadministrable, because it would require courts to interpret a defendantâ€™s gestures and murmurings to determine whether he had affirmatively accepted the appointment of counsel. While acknowledging a concern by some members of the Court that the holding of Jackson was too broad and actually prevents defendants from voluntarily waiving their right to counsel, petitioner also emphasizes that the Court does not need to consider that question in this case because he did not voluntarily waive his right to counsel.
Finally, petitioner seeks to rebut the harmless error analysis advanced by the Louisiana Supreme Court and respondent. He notes that the prosecution relied heavily upon the letter in its case, presenting the letter during testimony and argument. In fact, the letterâ€™s admission was so clearly harmful, petitioner argues, the Court should rule on this issue in its decision rather than remanding the case to Louisiana for further consideration.
Respondentâ€™s brief is only twenty-four pages in length with only ten pages of argument. The state expands upon its argument (also made in the brief in opposition) that the language in Jackson, Main v. Moulton (1985), and Edwards v. Arizona (1981), describing the defendant as having â€œassertedâ€ or â€œrequestedâ€ his right to counsel, indicates that the Court intended the Sixth Amendment protections to apply only after a defendant affirmatively accepted the appointment of counsel. Similarly, in Patterson the defendantâ€™s Sixth Amendment claim was rejected because he did not â€œexerciseâ€ his right to counsel, suggesting the same rule.
Moreover, respondent argues, the Court has consistently held that the right to counsel must be balanced against the societal interest in investigating a crime. A bright-line rule, requiring defendants to affirmatively invoke the right to counsel, would allow the police to gather the greatest amount of evidence without impinging on defendantsâ€™ desired representation. Respondent also challenges petitionerâ€™s assertion that such a rule would be inadministrable, suggesting that this rule would consider only whether the defendant made any indication that he desired representation. If so, the Sixth Amendment protections would apply; if not, the police could continue their interrogation. The police could be required to read defendants Miranda, to inform them of their right to request counsel.
Finally, the state again contends that even if the lower courtâ€™s ruling were unconstitutional, it was a harmless error. Even if the letter were ruled inadmissible during the suppression hearing, it could still have been entered into evidence as rebuttal in response to Mr. Montejoâ€™s testimony at trial. Moreover, petitionerâ€™s confession and his DNA found under the victimâ€™s fingernails indicate petitioner would have been found guilty regardless of the letter.