Montejo v. Louisiana

This, like the Harbison case, is a capital punishment case, but the issue that arises here could arise in any criminal law case. It has to do with whether a person in custody must "accept" counsel appointed him in order to be able to gain additional protections of the law as provided for by a 1986 Supreme Court decision. Thus, this is a Sixth Amendment case, relating to the appointment of counsel, which implicates the issue of when police must stop interrogating someone. More particularly, the issue has to do with aggressive interrogation by interrogators, which one court called 'hectoring,' even after the defendant has asserted his right to an attorney. My "bottom line" in all this is that all police interrogations need to be videotaped, from beginning to end, and that those videos, if not put on YouTube, at least need to be fully available to defense attorneys and courts. So many problems come about because interrogation is done in the secrecy of police custody. Because there is so much distrust "out there" with respect to interrogation techniques, why not require them to be on video? All of them? After all, constitutional rights are at stake.

Some Facts

We know this is going to be a difficult case of "he said/he said" when we read the accounts of Mr. Montejo's arrest. On Sept. 6, 2002 he was approached by Gretna, LA police in connection with a murder investigation. Gretna police assert they simply asked Montejo to accompany them to the police station, while Montejo testified that he was pulled from his vehicle at gunpoint, thrown to the ground and handcuffed. Hm....do you think this case is going to develop some problems?

Well, Mr. Montejo was interrogated for 6 1/2 hours that afternoon/evening (until 11:00 p.m.) and then was questioned for another hour between 3 and 4 the next morning. Only four hours of this interview was taped, and at one point the tape was turned off for 10 minutes, after which a visibly affected Mr. Montejo was seen. At trial, Montejo testified that the following happened in the first segment:

"Specifically, Montejo stated that after being taken into a room and handcuffed to the wall, the detectives walked in the room and they told me, Oh, we just wanted you for questioning, you're not under arrest, though. And at that time, I told them.…Can I please leave? He is like, well, we have some questions we want to ask you. And I informed him at that time I don't want to talk to nobody, I don't have no information for nobody, for nothing under any circumstances, can I please leave. Like, no. I said, Well, can I have a lawyer? He said, Well, I wouldn't advise that, because right now, you know, we need to question you about some serious matters. And at that time, I told him, Well, I am allowed to have a lawyer present, ain't I? He's like, Yes, but we wouldn't really recommend that."

The detectives seemed to ignore his request for counsel, or not take it seriously, and the interrogation went on. At trial and on appeal, the courts held that whether this technique was a violation of Montejo's Fifth Amendment rights was a "close question," but they decided it wasn't. In fact, this Fifth Amendment issue isn't actually before the Supreme Court, but I presented it for you so that we can now understand the real issue--the kind of interrogation that took place after an attorney was appointed.

September 10, 2002

At a Sept. 10, 2002 hearing, Montejo was formally appointed counsel through the state Office of Indigent Defender. Thus, in the language of law, the right to counsel "attached" for Mr. Montejo. He has counsel. However, no counsel was present for him at that hearing--counsel was just appointed.

The detectives then decided to go to work on Montejo further before his court-appointed counsel could show up. They took him on a ride in a police car, allegedly to search for the discarded murder weapon. Montejo testified as follows:

"They asked me if I would come with them to go clear up where I threw the gun at. So I said, Well, and I don't, I don't, I don't really want to go with you. He said, Do you have a lawyer? I said, yeah, I got a lawyer appointed to me."

Rather than terminate the interview and verify whether Montejo had a lawyer, the detectives decided to keep questioning him, according to Montejo's testimony:

"He said, No, no, you don't. I said, Yeah, I think I got a lawyer appointed to me, and I guess that's where I messed up, when I said I think I got a lawyer appointed to me. He said, No, you don't. He said, I checked, you don't have a lawyer appointed to you."

The Legal Question before the Court

The legal issue for the Sept. 10 confrontation is different than the issue for the Sept. 6-7 event. Here we have a Sixth Amendment representation issue. Counsel had been appointed. Under a 1986 Supreme Court decision, Michigan v. Jackson (475 US 625 (1986)), the Court held that once a defendant asserts his right to counsel, any subsequent waiver of that right without counsel present is presumed invalid unless the accused initiates communication. The legal question is whether, in order really to be represented, Mr. Montejo had to have "accepted" the appointment of his counsel. That is, the State's case rests on the notion that the protections of Jackson, just cited, don't really go into effect until the defendant makes an affirmative statement or step to accept appointment of counsel. Montejo argues, on the other hand, that once the court appointed counsel for him, which it did on Sept. 10, then the full protections of Jackson attach. Since he was subsequently convicted of capital murder and sentenced to death, and since much of the evidence gathered on the Sept. 10 drive would be excluded if Jackson was held to apply, the issue is very important for Mr. Montejo.

Though I think that good law in this case would be to deny the State's case (which was upheld by the LA Supreme Court), because it adds a layer of complexity that does not exist in the law governing appointment of counsel, I think the bigger issue relates to the way interrogations are done and recorded. Lots of confusion would be eliminated if all of this were on tape. Then, we could, like the NFL refs, look at the tape and make a ruling. Things would easily resolve themselves in about 99% of the cases....

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