Supremes another shift

Is there about to be another shift in interrogations law from the Supreme Court. Earlier we mentioned several commentators on the subject of how the “new” court is changing personal rights when faced with investigators. See an earlier post: Exclusionary Rule — To be Dead Letter Law — Possibly?

Court questions Michigan v. Jackson from SCOTUSBlog.

The Supreme Court on Friday told lawyers in a pending case, heard on Jan. 13, to file new briefs on whether the Court should overrule its 1986 decision in Michigan v. Jackson. [475 U. S. 625 (1986)] In that ruling, the Court laid down a rule designed to assure that the right to counsel was not lost in a police interrogation. The Court decided there that, once an accused individual has claimed a right to counsel at a plea hearing or other court proceeding, any waiver of that right during later police questioning would be invalid unless that individual initiated communication. The new order issued Friday afternoon on the validity of that ruling is here, issued in Montejo v. Louisiana.

The Jackson decision is centrally at issue in Montejo. The Court granted review of that case on Oct. 1 and heard argument more than two months ago. Here is the question being reviewed: “When an indigent defendant’s right to counsel has attached and counsel has been appointed, must the defendant take additional affirmative steps to ‘accept’ the appointment in order to secure the protections of the Sixth Amendment and preclude police-initiated interrogation without counsel present.

It seems to me that this issue can arise in two situations in the military. A military suspect is being interrogated and asks for counsel. She contacts ADC/TDS/NLSO/LSSS, and is told that Captain Xray will talk with her. Or, a military accused has been served charges and a trial package with counsel request has already been forwarded to the defense counsel offices and a defense counsel assigned. The command tells the accused the name of the lawyer and that there is an appointment set for next week. In the meantime, law enforcement wants another interrogation, or a pretext contact.