In both the Montejo and Ventris decisions, one of the substantive foundational explanations offered for overruling Michigan v. Jackson was, as Justice Antonin Scalia stated, that there would be “few if any” confessions resulting from post-appointment of counsel badgering by police. Now I’m a fan of Nino’s as much as any criminal defense lawyer. Heck, more than most. But he doesn’t have a clue how life works on the street.
It didn’t take long for the Texas Tornado, Mark Bennett, to make the point, taking his cue from Dallas’ favorite son, Robert Guest. From the Texas prosecutor website, some helpful internal ethics advice:
From Lisa Tanner:
It didn’t take long for the Texas Tornado, Mark Bennett, to make the point, taking his cue from Dallas’ favorite son, Robert Guest. From the Texas prosecutor website, some helpful internal ethics advice:
From Lisa Tanner:
So here is a question that’s come up among lawyers and officers from other states on a listserve I’m on.
Near as I can tell, it looks like SCOTUS has said that the police can initiate contact with and take a run at talking to a suspect/defendant, even if he is represented by counsel, so long as he clearly and unequivocally waives his right to silence and counsel. Right?
I, probably like everyone else on this board, get asked pretty regularly by officers to weigh in on whether they can take a run at interviewing a suspect/defendant. And if the guy is known to be represented, the standard answer is, of course, that he’s absolutely off limits (unless he should happen to initiate the contact himself, but that’s a whole ‘nuther issue). Now, under Jackson, it seems that the standard answer must change.
But, here’s where it seems to get tricky:
Disciplinary Rule 4.02 says that we cannot communicate or cause or encourage another to communicate with a person we know to be represented by counsel about the subject of that representation unless it is consented to by the representing lawyer or is “authorized by law”….
So how does that factor in? It seems to me that if we advise an officer that it’s now ok to take that run at that suspect that we know is represented, we might just be running afoul of 4.02, or does the “authorized by law” language kick in and permit it?
So if an officer approaches us for advise, would our safest bet just be to tell them that we cannot advise them what to do but direct them to Jackson? Calling Chip, the Ethics Guru!
Back at ya:
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The interpretation of Montejo amongst these prosecutors is that representation no longer plays a role in the determination of whether the cops can interrogate a defendant with a lawyer, whether requested, assigned, retained or otherwise. Their read is that they can go back to the interrogation well at their leisure until a defendant clearly and unequivocably invokes the right to refuse to speak with cops without an attorney present.
It took the cops what, maybe 30 seconds, to figure out how to make good use of Nino’s “few if any” opportunities? Does this mean that Nino doesn’t get out enough, or Nino knows exactly what he’s doing by sending the message to the troops in the streets about how to get confessions when the going gets tough. Who would be so cynical as to think that?
And as long as we’re talking about Nino’s cluelessness, the only fault that he sees is police “badgering” represented defendants into confessions. What about lying to them? What about using finely honed psychological techniques to deceive them into talking? What about negotiating backroom deals with defendants who don’t realize that it can’t happen that way? Do these things not happen in Nino’s world? They surely happen in ours.
It must be nice to rule from the sanitized world of Washington, where bad things are never done by cops on a mission. But while the Supremes prestend that this isn’t an issue, cops and prosecutors are busily figuring out how to game the situation under Nino’s new rules of engagement. That didn’t take long.
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I am uneasy with the Court’s tendency to implicitly take judicial notice of factual matter that has little or no empirical support. Scalia’s argument about “few if any” badgering-induced confessions is a perfect example. He’s finding a “fact” not in the record, and is then using it to justify a legal conclusion. True, this “fact” probably was disputed by the parties (I haven’t read the briefs), but often similar “facts” are subsidiary, mentioned in passing, or are not even briefed.
It seems to me that this practice produces something less than due process, and also improperly decides issues that really should be subject to empirical analysis. Judicial decisions are based, I think, on far too much speculation and far too little science — hard, soft-boiled, scrambled, or otherwise.
A very astute observation. This “fact” comes out of thin air, yet is the lynchpin of his value judgment. Talk about empathy.
It seems the first question under 4.02 is whether saying one wants to consult with an attorney creates a protected attorney-client relationship for that great majority of people who don’t maintain an open-ended consultative relationship with a specific attorney.
If the answer to that is “yes it does” then the “authorized by law” question you pose would come into play. If the prosecutor is giving general advice to a cop about the state of federal sixth amendment jurisprudence, there is no “person” known to be represented at the time the advice is given. Only at the time of interrogation would there be an identifiable “person known to be represented”. If a cop calls at that point, you better be very careful about getting your facts straight before becoming the test case at the disciplinary commission.
On the meaning of “authorized by law” in DR 4.02, it seems to me that JB got it wrong. It cannot mean simply “not prohibited by the Constitution”, which is what Montejo found. Instead, it must mean “positively authorized by a specific provision of law”.
If 4.02 meant the former, it would, for example, be inapplicable to civil cases, since (I’m quite sure) nothing in the Constitution has ever been held to prohibit lawyer A from communicating with lawyer B’s client. That would, of course, run completely counter to 4.02’s text and intent.
Also, DR 4.02 is similar to ABA Rule 4.2, comment 5 to which states “…When communicating with the accused in a criminal matter, a government lawyer must comply with this Rule in addition to honoring the constitutional rights of the accused. *The fact that a communication does not violate a state or federal constitutional right is insufficient to establish that the communication is permissible under this Rule.*” (emphasis added).
As usual, this is blogging, not legal advice. Consult your favorite lawyer for legal advice.
Ugh! “nothing in the Constitution has ever been held to prohibit lawyer A from communicating with lawyer B’s client” should, of course, be qualified by appending “in a civil case”.