This is the fifth in a series of posts reviewing last term’s criminal cases in the United States Supreme Court and previewing the new term.

You can tell there are no Wisconsinites currently on the Supreme Court — otherwise, the Justices would not treat “badger” as such a bad word.  In an earlier post, I discussed the Court’s marked left-right divide last term in its cases dealing with police investigation practices.  To my mind, the most interesting of these cases was Montejo v. Louisiana, 129 S. Ct. 2079 (2009), which nicely exemplifies the competing views of defendants’ rights on the Court. 

In Montejo, the Court substantially weakened the Sixth Amendment right to counsel by overturning Michigan v. Jackson, 475 U.S. 625 (1986).  Jackson had prohibited police from initiating the interrogation of a criminal defendant once the defendant had requested counsel at an arraignment. 

Why did the Court think Jackson unnecessary?  The answer lies in the Court’s concern with “badgering.” 

According the Montejo majority (the conservative usual suspects — Scalia, Thomas, Roberts, and Alito — plus Kennedy), the only purpose served by Jackson was to prevent police badgering, that is, police attempts to wear down defendants with repeated efforts to interrogate them.  Of course, defendants have a constitutional right to refuse to speak to the police without a lawyer present.  But the concern is that defendants who have chosen to exercise this right may be induced to to change their minds by police pressure tactics.  Thus, in order to discourage such tactics, Jackson required the suppression of confessions given in response to police-initiated interrogation after a request for counsel at arraignment.

In the view of the Montejo majority, however, the Jackson anti-badgering protections were unnecessary because of the overlapping Miranda anti-badgering protections.  Of course, Miranda only applies to defendants who are in custody.  But, Montejo reasoned, defendants who are not in custody are unlikely to give into police pressure tactics — badgering just isn’t much of a concern outside the scenarios already covered by Miranda.  Thus, the majority concluded, Jackson could be safely jettisoned without harm.

The dissenters (the liberal usual suspects — Stevens, Souter, Ginsburg, and Breyer) argued that Jackson was actually not about badgering at all, but about ensuring that defendants would be able to consult with lawyers before waiving their rights:

The assistance offered by counsel protects a defendant from surrendering his rights with an insufficient appreciation of what those rights are and how the decision to respond to interrogation might advance or compromise the exercise of those rights throughout the course of criminal proceedings.  A lawyer can provide her client with advice regarding the legal and practical options available to him; the potential consequences, both good and bad, of choosing to discuss his case with police; the likely effect of such a conversation on the resolution of the charges against him; and an informed assessment of the best course of action under the circumstances.  Such protection goes far beyond mere protection against police badgering.

129 S. Ct. at 2096 n.2 (Stevens, J., dissenting).  Thus, as against the majority’s anti-badgering view of Jackson, the dissent emphasized genuinely informed consent to interrogation as the fundamental value at stake.  Where the majority’s primary interest was in punishing and deterring police misconduct, the dissenters’ main concern was ensuring that defendants had a fair opportunity to receive counsel before making critically important decisions about talking to the police — in their view, even well-meaning, non-badgering police should be required to leave uncounseled defendants alone once the right to counsel has attached.

Although the Court is very closely divided on the question, it seems that a majority views exlusionary rules as merely about punishing and deterring police misconduct.  Not only was this apparent with respect to the Sixth Amendment exclusionary rule in Montejo, but also with respect to the Fourth Amendment exclusionary rule in Herring v. United States, 129 S. Ct. 695 (2009).  The Court in Herring held that evidence obtained as a result of a mistaken arrest need not be suppressed.  Because the arrest in question resulted from a negligent, not a reckless, police error, the Court did not see the case as involving the sort of serious misconduct warranting punishment and deterrence.

The Court’s focus on badgering concerns in particular does not bode well for the defendants in the new term’s two Miranda cases.  In Florida v. Powell, the Court will consider whether Miranda warnings informing the defendant that he had a right to talk to a lawyer “before any questioning,” and that he could use that right at any time during the interview, were sufficient to inform the defendant of his right to have counsel present during the questioning.  In Maryland v. Shatzer, the Court will consider whether police improperly attempted to resume questioning after a defendant had invoked his Miranda rights two years before.

Because neither Powell nor Shatzer has a flavor of badgering or similar police misconduct, I am guessing that the Court will not be inclined to require suppression of the evidence at issue in either case.

Earlier posts in this series:

• Do the Justices Play Nicely Together?
• Ambiguity Is Ambiguous
• Lenity and Mandatory Minimums
• Federalism and Criminal Law