Don't answer the door: Montejo v. Louisiana relaxes police restrictions for questioning non-custodial defendants.

• Author: Bretz, Emily

In 2009, the Supreme Court held in Montejo v. Louisiana that a defendant may validly waive his Sixth Amendment right to counsel during police interrogation, even if police initiate interrogation after the defendant's invocation of the right at the first formal proceeding. This Note asserts that Montejo significantly altered the Sixth Amendment protections available to represented defendants. By increasing defendants' exposure to law enforcement, the decision allows police to try to elicit incriminating statements and waivers of the right to counsel after the defendant has expressed a desire for counsel. In order to protect the defendant's constitutional guarantee of a right to counsel at all critical stages in his prosecution, it is essential to impose higher waiver standards for represented defendants. Thus, this Note argues that state and lower courts should adopt a rule that would render invalid any waiver of right to counsel given in response to police-initiated questioning, regardless of whether the questioning occurred in a custodial or non-custodial environment, provided the defendant who waived the right had already been formally charged and invoked his right to an attorney.

INTRODUCTION I. THE ROAD TO MONTEJO: THE BACKGROUND OF THE RIGHT TO COUNSEL AND WAIVER UNDER THE FIFTH AND SIXTH AMENDMENTS A. The Fifth and Sixth Amendments Protect Two Distinct Interests 1. The Purpose of the Fifth Amendment 2. The Purpose of the Sixth Amendment B. Waiver Standards 1. Waiver Requirements Under the Fifth and Sixth Amendments 2. Merging the Waiver Analyses 3. Montejo and Its Implications for Sixth Amendment Waivers II. THE EFFECTS OF MONTEJO ON REPRESENTED DEFENDANTS IN NON-CUSTODIAL ENVIRONMENTS A. Montejo and the Relevance of Custodial Interrogation B. Deceptive Police Techniques and the Focus on Non-Custodial Questioning C. Use of Coercive Techniques Once the Sixth Amendment Right to Counsel Has Attached D. Montejo's Implications for Vulnerable Defendants III. How TO UPHOLD THE CONSTITUTIONAL GUARANTEE OF THE RIGHT TO COUNSEL A. Strategies for Defense Counsel 1. Arguing that the Interrogation Took Place in Custody 2. Disputing the Validity of a Waiver B. What the Lower Courts Should Do to Protect the Attorney-Client Relationship CONCLUSION INTRODUCTION

God asked Eve, "What is this you have done?" Eve, on behalf of everyone, replied, "The serpent tricked me, and I ate." And so, without the intervention of Miranda warnings, lawyers, or an appellate court, God concluded the first recorded interrogation and dispensed justice upon Satan and man- kind. (1) So begins a recent article by John Bradley, district attorney for Williamson County, Texas. The article goes on to contrast God's approach with the rule-based interrogation methods used by mortal creatures. After the Supreme Court's ruling in Montejo v. Louisiana, however, these interrogation rules shifted considerably in favor of the prosecution. (2) Prior to Montejo, police could not approach and question defendants once they were formally charged with a crime, and any subsequent waiver of the Sixth Amendment right to counsel was deemed invalid. (3) The Montejo decision effectively eliminated these protections. (4) Thus, by allowing police increased opportunities to initiate interrogation and secure waivers from represented defendants, Montejo undermines the purpose of the Sixth Amendment, which serves to protect the defendant after his first formal judicial proceeding, once "the government has committed itself to prosecute, and ... the adverse positions of government and defendant have solidified." (5)

On September 6, 2002, Jesse Montejo was arrested in connection with the robbery and murder of Lewis Ferrari. He was brought to the sheriff's office where, after waiving his rights under Miranda v. Arizona, (6) he was interrogated for nearly eight hours. (7) Ultimately, Montejo admitted that he shot and killed Ferrari, who had unexpectedly returned home during the course of the burglary. (8) On September 10, Montejo appeared in court for a mandatory preliminary hearing. He stood silent while, as a matter of course, the judge appointed him an attorney from the Office of the Indigent Defender. (9) Shortly thereafter, two police detectives went to visit Montejo in jail. After securing another Miranda waiver from the defendant, they requested he accompany them, without his lawyer, on a search for the murder weapon. (10) During this excursion, Montejo wrote a letter, with a pen and paper provided by the police, apologizing to the victim's widow for his involvement in the murder. (11) Upon his return to the prison, Montejo finally met his court-appointed attorney. (12)

The trial court deemed Montejo's waiver admissible, and he was found guilty and sentenced to death. (13) Affirming, the Louisiana Supreme Court rejected Montejo's claim that the letter should have been suppressed under Michigan v. Jackson. (14) Jackson held that "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." (15) The Louisiana Supreme Court reasoned that the protections afforded by Jackson apply only in situations where defendants actively assert their right to counsel, not in those where the defendant simply stands mute while counsel is appointed, as was the case with Montejo. (16) Thus, while Montejo's "right to counsel had attached, he did not assert his right to counsel such that the prophylactic rule of Michigan v. Jackson would invalidate any waiver he would later make." (17) The U.S. Supreme Court granted certiorari to address whether a defendant must affirmatively accept appointment of counsel in order to validly invoke the right to counsel under Jackson. (18) Three months after oral arguments, the Court foreshadowed a potential narrowing of the Sixth Amendment guarantee of counsel, when it asked the parties to brief the following question: should Jackson be overruled? (19)

On May 26, 2009, the Court ruled in the affirmative. In making its determination, the Court considered the right to counsel under the Fifth Amendment (the right to be informed of one's entitlement to an attorney during custodial interrogation) and under the Sixth Amendment (the right to actual assistance of counsel at all critical stages of the prosecution). (20) Despite the different protections and purposes of these two amendments, the Court in Montejo ultimately decided that the waiver procedure for each right should be identical. (21) Although the Court reversed the Louisiana Supreme Court's holding that a defendant must affirmatively accept counsel, it further declared that Michigan v. Jackson should be overturned because it was "unworkable," and because the decision's marginal benefits were outweighed by its substantial costs. (22) The reasoning in Montejo rested heavily on the argument that the protections afforded by the Fifth Amendment are sufficient to shield a defendant who does not wish to communicate with officials without counsel. (23) Under Montejo, as long as the defendant is advised of his Miranda rights before any questioning begins, and knowingly and voluntarily waives his right to counsel, the police may initiate interrogation even if the defendant invoked counsel at his first judicial appearance. (24)

Montejo rejected the suggestion of previous courts that Miranda warnings might not suffice to waive the Sixth Amendment right to counsel during interrogation if a formally charged defendant has already retained counsel. (25) The Court found no justification for distinguishing between represented and unrepresented defendants. (26) However, because the Court focused primarily on those defendants who do not invoke counsel, it gave short shrift to those who do express a desire for representation. (27) Indeed, the decision is particularly troubling for defendants who invoke their Sixth Amendment rights in non-custodial environments. Police can approach those individuals, conduct an interrogation, and encourage a waiver, even after a defendant requested and retained a lawyer. (28) Montejo thereby creates the potential for officers to infringe upon the defendant's Sixth Amendment right to counsel at a particular stage--interrogation--where having a lawyer is integral to "protect the fairness of the trial itself." (29) A represented defendant who has been formally charged should know the consequences implicated should he surrender the right to counsel, consequences that can be readily explained by his attorney. (30) While we may afford God more leniency in His casual disregard of Miranda warnings and waiver standards, we cannot allow police and prosecutors to do the same at the risk of infringing on the constitutional rights of defendants.

This Note argues that Montejo v. Louisiana improperly restricts the constitutional rights of criminal defendants by creating the possibility that police will conduct interrogations, without counsel present, of defendants in non-custodial environments after their Sixth Amendment rights have attached. In light of Montejo's holding, lower courts should adopt measures to heighten protections for criminal defendants, whether through state judiciaries interpreting their current constitutions to protect the attorney-defendant relationship or through circuit courts expanding upon federal constitutional provisions. Part I examines the right to counsel under both the Fifth and Sixth Amendments, and contends that while the cases that preceded Montejo blurred the line between these two separate privileges, Montejo goes one step further by effectively merging their protections, even in settings where the defendant invokes and then subsequently waives counsel. Part I also explains the Supreme Court's conflation of the Fifth and Sixth Amendments' constitutional safeguards and the Court's rejection of...