This week saw the demise of a landmark case in the area of constitutional criminal procedure: Michigan v. Jackson. In a 5-4 decision, the Supreme Court rolled back on the protection of defendants that guaranteed that they had the advice of counsel before speaking with police at critical stages of a prosecution. In Montejo v. Louisiana (07-1529), Justice Antonin Scalia said that the protection was not worth the loss of confessions and only caused confusion. The Obama Administration supported the rollback on protections for criminal defendants and argued for Michigan v. Jackson to be overturned.

At issue in this case was the continued interrogation of a murder suspect who had invoked his right to counsel. Under Michigan v. Jackson, when a suspect has invoked his right to counsel, police may not initiate interrogation until counsel has been made available to the suspect. In this case, a Louisiana businessman Lewis Ferrari was found dead on the kitchen floor from gunshot wounds to his head and chest. Neighbors identified the van of Jesse Jay Montejo (later forensics found Mr. Montejo’s DNA under Mr. Ferrari’s fingernails). Police interrogated Montejo who, after five hours and various explanations, asked for a lawyer. A detective told him that he was “disappointed” in him for requesting a lawyer and, when the camera was turned back on, Montejo was shown waiving his request for a lawyer and and effectively confessing. When he was brought for arraignment, he was appointed counsel but was not specifically asked about his desire for the attorney. The police (who had a representative at the hearing) later sought to interrogate him on the location of the murder weapon and when he said that he had a lawyer, they told him that he was unrepresented. They then had him write a letter apologizing to Mrs. Ferrari for killing her husband.

The Michigan v. Jackson decision was viewed as a core protection for criminal defendants that extended the Court’s Fifth Amendment ruling in Edwards v. Arizona to the Sixth Amendment context. The decision, therefore, changes a foundational component in the Sixth Amendment area. Scalia draws a distinction (missed by most criminal defendants) between a request for Fifth and Sixth Amendment protections:

There is no “initial election” to exercise the right, Patterson, 487 U. S., at 291, that must be preserved through a prophylactic rule against later waivers. No reason exists to assume that a defendant like Montejo, who has done nothing at all to express his intentions with respect to his Sixth Amendment rights, would not be perfectly amenable to speaking with the police without having counsel present. And no reason exists to prohibit the police from inquiring. Edwards and Jackson are meant to prevent police from badgering defendants into changing their minds about their rights, but a defendant who never asked for counsel has not yet made up his mind in the first instance.

Scalia simply finds (as the Obama Administration argued) that the powder is not worth the prize in protecting criminal defendants from such interrogations:

Which brings us to the strength of Jackson’s reasoning. When this Court creates a prophylactic rule in order to protect a constitutional right, the relevant “reasoning” is the weighing of the rule’s benefits against its costs. “The value of any prophylactic rule … must be assessed not only on the basis of what is gained, but also on the basis of what is lost.” Minnick, 498 U. S., at 161 (Scalia, J., dissenting). We think that the marginal benefits of Jackson (viz., the number of confessions obtained coercively that are suppressed by its bright-line rule and would otherwise have been admitted) are dwarfed by its substantial costs (viz., hindering “society’s compelling interest in finding, convicting, and punishing those who violate the law,” Moran, supra, at 426).

What does the Jackson rule actually achieve by way of preventing unconstitutional conduct? Recall that the purpose of the rule is to preclude the State from badgering defendants into waiving their previously asserted rights. See Harvey, supra, at 350; see also McNeil, 501 U. S., at 177. The effect of this badgering might be to coerce a waiver, which would render the subsequent interrogation a violation of the Sixth Amendment . See Massiah, supra, at 204. Even though involuntary waivers are invalid even apart from Jackson, see Patterson, 487 U. S., at 292, n. 4, mistakes are of course possible when courts conduct case-by-case voluntariness review. A bright-line rule like that adopted in Jackson ensures that no fruits of interrogations made possible by badgering-induced involuntary waivers are ever erroneously admitted at trial.

But without Jackson, how many would be? The answer is few if any. The principal reason is that the Court has already taken substantial other, overlapping measures toward the same end. Under Miranda’s prophylactic protection of the right against compelled self-incrimination, any suspect subject to custodial interrogation has the right to have a lawyer present if he so requests, and to be advised of that right. 384 U. S., at 474. Under Edwards’ prophylactic protection of the Miranda right, once such a defendant “has invoked his right to have counsel present,” interrogation must stop. 451 U. S., at 484. And under Minnick’s prophylactic protection of the Edwards right, no subsequent interrogation may take place until counsel is present, “whether or not the accused has consulted with his attorney.” 498 U. S., at 153.

What is fascinating is the muted response to this case or the position of the Obama Administration. Once again, President Obama has followed the Bush Administration in an assault on constitutional protections for accused individuals. This case does not involve terrorism, it is simply a rollback on constitutional criminal rights. Yet, the left has been largely silent in any critique. What is worrisome is that Supreme Court nominee Sonia Sotomayor is viewed with great suspicion by civil libertarians, particularly in cases involving police misconduct. For a past review of cases, click here. Sotomayor would not be a reliable vote in the area of constitutional criminal procedure — raising the possibility that she will actually make the Court more conservative in such areas. For some civil libertarians, that is a risk not worth taking, particularly given the fact that Obama could have successfully nominated individuals with a proven allegiance to such constitutional principles and prior writings showing a deep philosophical commitment to them.

Just as supporters of President Bush showed blind loyalty, many liberals appear to be responding the same way to President Obama, ignoring legal policies that are identical to Bush and showing little interest in the actual views of his nominee. Ironically, the left despises Scalia. Yet, once again, he is espousing the very argument advanced by the Obama Administration. Putting aside the merits of this case, the rhetoric from Obama supporters often seems detached from the realities of the positions of the Obama Administration.

In his dissent, Justice Stevens shows how both the majority and the Obama Administration misrepresented the importance and necessity of Jackson case:

The majority’s analysis flagrantly misrepresents Jackson’s underlying rationale and the constitutional interests the decision sought to protect. While it is true that the rule adopted in Jackson was patterned after the rule in Edwards, 451 U. S., at 484–485, the Jackson opinion does not even mention the anti-badgering considerations that provide the basis for the Court’s decision today. Instead, Jackson relied primarily on cases discussing the broad protections guaranteed by the Sixth Amendment right to counsel—not its Fifth Amendment counterpart. Jackson emphasized that the purpose of the Sixth Amendment is to “ ‘protec[t] the unaided layman at critical confrontations with his adversary,’ ” 475 U. S., at 631 (quoting United States v. Gouveia, 467 U. S. 180, 189 (1984) ), by giving him “ ‘the right to rely on counsel as a ‘medium’ between him[self] and the State,’ ” 475 U. S., at 632 (quoting Maine v. Moulton, 474 U. S. 159, 176 (1985) ). Underscoring that the commencement of criminal proceedings is a decisive event that transforms a suspect into an accused within the meaning of the Sixth Amendment , we concluded that arraigned defendants are entitled to “at least as much protection” during interrogation as the Fifth Amendment affords unindicted suspects. See, e.g., 475 U. S., at 632 (“[T]he difference between the legal basis for the rule applied in Edwards and the Sixth Amendment claim asserted in these cases actually provides additional support for the application of the rule in these circumstances” (emphasis added)). Thus, although the rules adopted in Edwards and Jackson are similar, Jackson did not rely on the reasoning of Edwards but remained firmly rooted in the unique protections afforded to the attorney-client relationship by the Sixth Amendment .2

Once Jackson is placed in its proper Sixth Amendment context, the majority’s justifications for overruling the decision crumble. Ordinarily, this Court is hesitant to disturb past precedent and will do so only when a rule has proven “outdated, ill-founded, unworkable, or otherwise legitimately vulnerable to serious reconsideration.” Vasquez v. Hillery, 474 U. S. 254, 266 (1986) . While stare decisis is not “an inexorable command,” we adhere to it as “the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, 501 U. S. 808, 827–828 (1991) .

While Scalia and the Obama Administration insists that this rollback will impact “few” cases, I fail to see the basis for this assumption as a criminal defense attorney. These cases were put into place because of the strong preference among some police officers to prove cases through confessions rather than forensics or field work. The Supreme Court discussed this tendency and its abuses in the Miranda and later decisions. Some detectives will inevitably use this case to further expand on the opportunity for interrogations without counsel. There is a reason why some officers in past cases worked hard to avoid the involvement of counsel: represented parties are less likely to confess and less likely to know the full range of rights or options as suspects. Bright lines are needed in this area and justice is advanced by the presence of attorneys. While it is true that there are other protections against “coerced confessions,” this decision will have a material and detrimental impact on the rights of accused individuals in the criminal justice system. What greatly concerns me is that, with our system of aggravator and mitigators and sentencing guidelines, most defendants have no idea how small admissions can affect their cases and their lives.

For the opinion, click here.