Court-Martial Trial Practice Blog
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.