A Trap for the Unwary: The Sixth Amendment Right to Counsel After Montejo v. Louisiana

AuthorMichael C. Mims
Pages345-389
A Trap for the Unwary: The Sixth Amendment Right to
Counsel After Montejo v. Louisiana
I. INTRODUCTION
An injured pedestrian, the victim of a hit-and-run collision, is
found bleeding on the side of the road. Based on the victim’s
description of the a utomobile, police arrest businessman Sherman
McCoy, who is released on ba il and formally indicted later that
week. McCoy immediately hires a lawyer, who calls the local
district attorney to alert him that he will be representing McCoy on
the charges. Later that night, Detectives Martin and Goldberg visit
McCoy at his home to “chat” about the case. Miranda warnings
are not administered.
1
“The more you can tell us about where you were that night, the
better deal we’ll be able to arrange for you,” Detective Martin
tells McCoy. “You give us what we need, and who knows, maybe
we only charge you with reckless operation.”
2
“I don’t know,” McCoy responds. “I think I should probably
talk this over with my lawyer first.”
“I can tell you exactly what your lawyer will say,” Detective
Martin explains. “Your lawyer is going to tell you not to make a
deal with us. But your lawyer’s not facing jail time, is he?”
Detective Goldberg chimes in, explaining that McCoy’s attorney
stands to make a lot of money if the case goes to trial.
3
Detective Martin then tells McCoy about all of the evidence
that the police have gathered. “Look, we’ve got three witnesses
who saw what happened; we’ve got skid marks that match the tires
on your car; and we’ve got traffic cameras from five different
angles that clearly show that you were the one driving the car that
night,” he explains. As it turns out, the detective is lying. Although
the police know that McCoy’s car was involved in the accident,
Copyright 2010, by MICHAEL C. MIMS.
1
. For a discussion of the Miranda warnings, see infra Part II.B.
2
. See Brief for Respondent at 7 n.5, Michigan v. J ackson, 475 U.S. 625
(1986) (No. 84 -1531), 1985 WL 669649 (―If you want to go up on murder one,
life imprisonment, that‘s up to you. Now we‘ll work a deal and plead to
something less and get two years, get out, that‘s your business. It‘s your
choice.‖).
3
. See id. (―I‘ll tell you what an attor ney is gonna tell ya, an attorney is
gonna tell ya don‘t talk to police. I can tell you that right no w. Don‘t talk to the
police. But, the attorney doesn‘t go to jail, does he? . . . You know what the
attorney does when you say that, the attorney knows that t hat‘s going to get a
trial, even if he‘s appointed he gets paid by how much trial days.‖).
346 LOUISIANA LAW REVIEW [Vol. 71
they have no evidence indicating that McCoy was behind the
wheel.
4
“This is an open and shut case,” Detective Goldberg explains.
“You’re going to jail; everyone knows that. The only question is,
do you let us help you out a nd offer you some kind of deal, or do
you call up your attorney a nd help pad his wallet by letting this
drag on at trial?”
Okay, McCoy thinks to himself, maybe if I give them just a
little something to go on, they won‘t come down so hard on me.
“I’ll tell you what I know ,‖ McCoy responds. “I drove down that
street a round the time of the accident; tha t must be how the traffic
cameras spotted me. But I never hit anyone with my car that
night.”
The detectives leave the McCoy residence shortly thereafter
and head back to the office to tell their boss the good news.
They’ve just gathered the last piece of evidence needed to convict
Sherman McCoy.
Before 2009, both state and federal courts would have widely
agreed that the actions of the police in the above fact pattern, for
multiple reasons, constituted a violation of the defendant‘s Sixth
Amendment right to counsel.
5
However, after the United States
Supreme Court‘s recent ruling in Montejo v. Louisiana,
6
which
overturned Michigan v. Jackson and its firmly established
protections of the right to counsel,
7
the Sixth Amendment no
longer prohibits police from approaching a represented defendant
for post-indictment interrogation in the absence of counsel.
8
Furthermore, dicta in Montejo suggests that other elements of the
above scenario, such as the detectives‘ failure to administer
Miranda warnings and their use of false evidence, might also fall
short of a Sixth Amendment violation.
9
Thus, Montejo represents a dramatic shift in the Court‘s
jurisprudence regarding the right to counsel. By eliminating most
meaningful distinctions between the Fifth and Sixth Amendment
rights to counsel, the Court has denigrated the right to a fair trial
for criminal defendants, eliminated workable standards for law
4
. See State v. Montejo, 974 So. 2d 1238, 1245 n.26 (La. 2008), vacated by
Montejo v. Louisiana, 129 S. Ct. 2079 (2009) (―After the detectives falsely
claim[ed] that forensic analysis can determine when he was in the home . . . Montejo
admitted that he entered the home and proceeded to relate his second version of the
crime. Both detectives conceded at trial that they misled Montejo . . . .‖).
5
. See infra Part IV.B.
6
7
. 475 U.S. 625, overruled by Montejo, 129 S. Ct. 2079.
8
. See infra Part III.
9
. See infra Part IV.
2010] COMMENT 347
enforcement, and demonstrated a disturbingly activist disregard for
stare decisis. This Comment argues that Montejo was poorly
reasoned, will lead to alarming results, and should be limited by
state constitutions. To reach this end, Part II analyzes the history of
the Sixth Amendment right to counsel, the rationale behind the
Sixth Amendment‘s guarantee, and the wa ys in which the Sixth
Amendment‘s right to counsel differs from that of the Fifth
Amendment. Part III introduces Montejo, detailing the Supreme
Court‘s latest interpretation of the Sixth Amendment. Finally, Part
IV discusses the implications of Montejo and analyzes a list of law
enforcement tactics that courts might now find permissible in light
of Montejo. In response to these observations, Part V proposes a
solution for Louisiana and other states that wish to best protect the
fundamental rights of their citizens.
II. BACKGROUND: SOURCES OF THE RIGHT TO COUNSEL
Because Montejo eliminated most meaningful distinctions
between the Fifth and Sixth Amendment rights to counsel, it is
appropriate to study the history of those rights, the differences
between the two rights, and the ways the Court has recently
disregarded those differences.
A. Sixth Amendment Right to Counsel
Traditionally, several factors have distinguished the right to
counsel of the Sixth Amendment from that of the Fifth
Amendment. Such factors include the rationale behind the Sixth
Amendment right to counsel and the context in which the right
applies.
1. Rationale Behind the Sixth Amendment Right to Counsel
The Sixth Amendment provides in pertinent part: ―In all
criminal prosecutions, the accused shall enjoy the right . . . to have
the Assistance of Counsel for his defence.‖
10
The Supreme Court
10
. U.S. CONST. amend. VI. The full text of the Sixth Amendment provides:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, b y an impartial jury o f the State and district
wherein the crime shall have been committed, which distric t shall have
been p reviously ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defence.
Id.

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