No Second Crawford For You To Burn

The news is all agog at SCOTUS's recent overruling of Michigan v. Jackson. The case that does this is, as you might expect, authoried by Justice Scalia, and is called Montejo v. Louisiana. Some prosecutors, including myself, are happy with the result.

But frankly, I'm getting a little tired of Scalia the bomb thrower.

He did this to everyone in Crawford v. Washington. We'd all gotten used to the Ohio v. Roberts analysis of Confrontation Clause challenges. Then he puts together a majority, says we're supposed to look at whether statements are testimonial, and then conveniently forgets to tell us what that means. Same thing with D.C. v. Heller. Yes, the Second Amendment is an individual right, but I'll leave it up to you guys to figure out which laws are still good.

Look, it's consistent with his view of what the high court is supposed to do. They figure out the constitutional principles and leave it up to us peons to fight it all out. Maybe, at long last, that's the real reason I like the CCA. They are in more of a position to respond to these kinds of questions with answers. Scalia thinks SCOTUS opinions are supposed to be like the last five minutes of every episode of Lost. It's starting to drive me nuts.

So, here we are with Montejo v. Louisiana where the Court has said a defendant who invokes his Sixth Amendment right to counsel and even gets an attorney appointed (though he doesn't have a chance to talk to him) can still waive his right to an attorney and talk to the police. Of course, the Court doesn't tell us if the waiver was valid, they just say it's not automatically invalid.

And that's it.

It could still be involuntary. We don't know. And while we ponder this, what are we supposed to look at to determine if it's involuntary? The remand was for consideration of whether police misrepresented anything about the appointment to the defendant before securing his waiver. Does that mean we don't care about the invocation facts? Montejo just sort of acquiesced to having counsel appointed at his magistration. What if he'd jumped up and down on the table and demanded an attorney and told the judge he didn't want to talk to anyone without an attorney? Is that something that should be considered?

Does it matter than he'd never spoken to counsel? I'm inclined to think that it does because in Brewer police had agreed with a defendant's attorney not to talk to the defendant, but they did anyway. There's no indication that that law is now bad. And that behavior seems to be the type of behavior that the exclusionary rule has a hope of curbing (assuming you believe the exclusionary rule is effective). So, yeah, I think it makes a difference that police in Montejo didn't interfere with an existing relationship. But the majority did say they weren't drawing a distinction between a represented defendant and an unrepresented one.

And does this mean police can only ask a defendant