By Kristi Couvillon

I finally took a break from my practice today to read the United States Supreme Court’s decision in Montejo v. Louisiana. I had been dreading reading this opinion as I knew it whittled away our 5th and 6th amendment rights – both to counsel and against self-incrimination.

Obviously, police have always been able to interrogate suspects without lawyers, but, until this decision, police were not allowed to question a defendant who had a lawyer (or who had requested a lawyer) unless that attorney was present. Now, as long as a defendant “waives” his right to counsel, the cops can interrogate that defendant all they want.

You might say, “Well, sure, if they waive that right, they should be able to do whatever they want – the defendant knows what’s best for him.” Well, while it’s debatable whether certain defendants know what is best for them in most situations, this does not take into the account that the police are allowed to lie, trick, or deceive defendants as part of their investigations. (Admittedly, if my loved one was kidnapped, you can bet I’d want cops to use any trick possible to get the kidnapper to tell where my loved one was!) Not to mention, part of what we all learn in childhood is “It’s always best to tell the truth.” “Just come clean and we’ll go easier on you.”

Sounds rational, right? Wrong. Mr. Montejo came clean, told the truth, led the cops to the murder weapon, wrote a letter of apology to the widow of the man he admitted killing, and for his honesty, got the death penalty.

In this case, Mr. Montejo had been brought to court for a hearing and appointed a lawyer. On that same day, before the newly appointed lawyer could make it to jail to meet with his new client, the police met with Mr. Montejo, read him his warnings, and interrogated him which led to the above. The appointed attorney arrived at the jail just as Mr. Montejo and the cops were returning from their murder-weapon-finding-adventure. Understandably, the lawyer was outraged. The case turned on the fact that Mr. Montejo had never asked for a lawyer and that he waived the right to have counsel present.

A big problem I have with this case is that I really don’t think many of my clients understand the Miranda warning: “Youhavetherighttoremainsilent.
Anythingyousaycanandwillbeusedagaisntyouinacourtoflaw.
Youhavetherighttoanattorneypresentduringquestioning.
Ifyoucannotaffordalawyer,onewillbeappointedforyou.
Doyouunderstandtheserights?” What? Never mind that you are nervous, scared, worried, and in a foreign environment with no friendly faces. I’ve had several clients tell me that they didn’t know what that meant and that they thought they were just supposed to say “yes,” cooperate, and do what they’re told.

So, what does this all this mean should you ever find yourself in the hot seat?
1. ALWAYS ASK FOR A LAWYER.
2. DON’T TALK TO THE POLICE. (Save it all for your lawyer; s/he is in a much better place to figure out what, if anything, should be shared with the prosecution or law enforcement.)
3. ASK FOR A LAWYER AGAIN, EVEN IF YOU THINK YOU ALREADY HAVE ONE.

Labels: Miranda, Montejo v. Louisiana, rights

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