And So I Told Justice Alito…

Not having argued a case before the United States Supreme Court, the best I can do is read about the questions asked of counsel at oral argument and play the “what would I have said” game.  It’s exactly the same thing, aside from the lack of pressure, time to think, consider and reconsider, and opportunity to start over when I dig myself into a hole.

As Maryland v. Shatzer was argued on the first Monday in October, 2009, a case which presents the disconcerting notion that the invocation of the right to counsel may make a cop’s job slightly more difficult, and one about which I’ve had some thoughts previously, there was a nagging need to find out how things went.  Not great, according to the Washington Post.


Justices seemed generally supportive of [Maryland Attorney General Douglas F.] Gansler’s point that police should have been allowed to question Shatzer again, but they had a hard time agreeing on how the rule should be changed.

But not terrible either.


Roberts worried that police could repeatedly question and dismiss a suspect who asks for a lawyer.

“You know, just sort of catch-and-release, until he finally breaks down and says, ‘All right, I’ll talk,’ ” Roberts said.

A very astute observation by the Chief. Impressive.  And then there’s Justice Sam Alito.


Justice Samuel A. Alito Jr. posed this hypothetical: What if someone was arrested for joy riding in Maryland, invoked his Fifth Amendment protection, and was never convicted? Could police in Montana question him as a murder suspect in Montana 10 years later?

When [Public Defender Celia A.] Davis said no, Alito replied: “And you don’t think that’s a ridiculous application of the rule?”

Oh, man. She should have seen that slow pitch coming from miles away, and hit it out of the park.  Instead, she whiffed.  Of course it’s a ridiculous application of the rule, whether you’re Justice Alito or pretty much anybody else.  A single invocation of the right to counsel isn’t going to immunize a defendants from questioning on any subject, any crime, anywhere, forever.  But there are so many conceptual ledges to hang on to that Davis shouldn’t have feared the slippery slope.

So is there a better response? You betcha.


Of course, Justice Alito, the police in Montana could have questioned him as a murder suspect, despite his invocation.  Not because 10 years had elapsed, or that the person traveled from Maryland to Montana, but because the subject matter of the questioning was entirely unrelated to the subject matter for which the person invoked right to counsel. 

Some might argue, as apparently Davis does, that a single invocation covers a person for all purposes for all time.  What this highlights is two separate paths along which the constitutional right can flow.  One attaches to the particular offense, the purpose for which the police seek to interrogate, while the other attaches to the person without regard to the subject of the interrogation.  I see no constitutional quandary in the latter, though the former would offend constitutional protections.

Just as people are capable of committing more than one offense in their lifetime, and some can commit quite a few, each is an individual affront to society.  Assume that the person may be innocent of one, guilty of another, happy to talk about the second but not about the first.  Each alleged offense demands an investigation, and each offers the individual a separate opportunity to invoke, or not, his rights.  What they are not, however, is the use of continued attempts at interrogation to “break down” a defendant, as Justice Roberts notes.  Or any of the other words that have been used to describe the wrong of ongoing or perpetual interrogation.

One crime; one change to question.  If the suspect invokes right to counsel, that’s that.  No second dips at this well, but that has nothing to do with a person suspected of poisoning some other well. 

And for all those who thought our newest Latina justice was too liberal, check out whose lead she followed:



When Alito raised the hypothetical ante to a crime committed 40 years later, Sotomayor joined in.

“He is arrested for joy riding, he is let go, and you are saying that for 20, 40 years he is now immunized from being re-approached by the police?” Sotomayor asked.

Notice the word “immunized”?  Would that be from the swine flu? 

2 thoughts on “And So I Told Justice Alito…

  1. Jdog

    What if, hours or days weeks (or months, or years) later, the police finally get around to checking the trunk of the car that he was allegedly joyriding in, and find a dead body?

    Is that a separate crime — for which he has not invoked the 5th and might be willing to talk about (e.g. “I don’t know anything about a dead body in the trunk of the car”) or invoke the Fifth over (e.g., of how not do it “I need to talk to my lawyer before we talk about why I shot the bastard”) — or the same crime, where he’s already invoked the Fifth, and if he’s going to talk about it without counsel present, he’s gotta come to them, not vice versa?

  2. SHG

    Nope. Anything arising out of the same incident is covered.  Anything wholly unrelated is not covered. Bright line test, easily applied.

    Of course, all of this would be unnecessary if people would just shut up when questioned by the cops.

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