Sixth Amendment - New Rules

The Supreme Court must just hate law students. I figure they rule on cases just to complicate their lives. Well, I got news for them....they make law professors lives more complicated too. Sometimes U.S. Supreme court cases get headlines and sometimes they just slide by without much notice. Such was the case in May of this year in Montejo v Louisiana. Simply, the facts are this: Montejo was arrested for murder and, as required in that state, appeared before a judge within the first three days after his arrest. While he said nothing, the court appointed a free lawyer. The next day or so, the cops again approached him and asked him (after is Miranda warnings, including his waiver of an attorney being present) to show them where he threw the gun. The great guy he was, he said OK and did so.

Now for over twenty years as a result of the case of Jackson v Michigan, the rule was that once a "critical stage of the proceeding" has begun, like arraignment, and counsel appointed, the cops were done...finished...nada...CANT ASK THE BAD GUY ANYTHING ABOUT THIS CRIME...unless of course his lawyer says it is OK and is there (right, like that's gonna happen).

Now, in a 5 to 4 decision, the court overruled Jackson and allow the cops to contact the represented defendant and, if he waives his right to counsel, interview him about the case he has already gone to court on!. Now, the last thing anyone would ever call me was a liberal...But this decision causes me some concerns.

So, I guess every defense attorney better tell his criminal case client to not waive his right to a lawyer even well into defending him because it appears the cops can contact the represented defendant and ask him or her to forget about that lawyer and talk to them, and if they agree, the statement is admissible But here us where it gets interesting

The American Bar Association and the California Bar Association rules of ethics state that an attorney "shall not" have communication with a represented party. So, what if one of the detectives or investigators is also a lawyer?...... Don't laugh, there are more cops that are also attorneys than you might think. Now, the cop cannot do his job because to do so would violate the rules of ethics....How about this? The Sheriff or Chief of Police is a lawyer?...and his deputies or officers are his "agents"...Now the Chief or Sheriff is in trouble if his cops (as his agents) contact a represented party. Same dilemma exists for investigators who work for the DA.

So, aside from making life complicated for law students and law professors, the Supreme Court also made life for attorney cops and attorney law enforcement chief officers a bit more professionally dangerous

So, I am sure the cops are celebrating the decision in Montejo, but I see a bunch of litigation as a fall out of this decision and what were pretty clear rules, now less clear.