And when a defendant is read his
Miranda rights (which include the right to have counsel
present during interrogation) and agrees to waive those
rights, that typically does the trick, even though the
Miranda rights purportedly have their source in the Fifth
Rumpole says: "purportedly"???....uhho!!
Scalia has Miranda on his mind, and not in a nice way. Although that is fodder for another day, can't you just see Assistant Attorney Generals around the country looking for the right case to bring to Scalia so he can sever Miranda's head and serve it on a silver platter to the right wing? There's a federal appeals court judgeship waiting for the AG who kills Miranda.
And here's why this decision affects Miranda. This case is a 6th amendment right to counsel case. Miranda is (purportedly) a 5th amendment case. In this case Scalia writes to strike down the "prophylactic" rule created by Jackson in 6th amendment cases when counsel is appointed.
And why does this decision threaten Miranda? Here's what Scalia writes:
We created such a presumption in Jackson by analogy to a similar prophylac-
tic rule established to protect the Fifth Amendment based Miranda right to have counsel present at any custodial interrogation.
See what he's doing? First he strikes down the "prophylactic" protections in a 6th amendment case analogous to Miranda. Can striking down the "prophylactic" protections in 5th amendments Miranda cases be far behind, especially since in Scalia's view, Miranda merely "purports" to have it's origins and protections in the 5th amendment? And of course, when Scalia does go after Miranda, what case will he cite as precedent? THIS ONE.
It's a particular ingenious way of interpreting the constitution and creating reasons to overrule other decisions. Create case law under one amendment to be used to undermine the firmest of constitutional decisions on another amendment. Hardly the acts of a man who tells anyone and everyone that constitutional jurisprudence should be limited to original intention.
Here, in all its glory, is Scalia's view of the real world of police and defendants:
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.
No reason whatsoever Justice Scalia, except that Montejo is going to die because he remained mute at his preliminary hearing. I don't know about you, but we rarely encounter murder suspects who are versed in the intricacies of 6th amendment case law.
So for today, in a court still dominated by Scalia and his cohorts when it comes to criminal law, the lesson is silence is NOT golden:
and even if it is reasonable to presume from a defendant’s
request for counsel that any subsequent waiver of the right
was coerced, no such presumption can seriously be enter-
tained when a lawyer was merely “secured” on the defen-
dant’s behalf, by the State itself, as a matter of course.
Oh. And just in case you still don't believe me when I tell you Scalia and his gang are the farthest thing imaginable from true conservatives, consider this little paragraph about society versus the individual: speculating on the result if the court found that the appointment of an attorney (versus asking for an attorney and getting one) would automatically trigger the "prophylactic" protections ala Miranda that Scalia despises so much, Scalia shows us how much of a collectivist (versus a conservative truly concerned about protecting individuals from government) he is:
That would have constituted a “shockingly dramatic restructur-
ing of the balance this Court has traditionally struck
between the rights of the defendant and those of the larger society
So there you have it. Scalia the great collectivist-always worrying about the rights of "the larger society". Upholding the rights of society versus the individual- doesn't sound like a conservative to me.
See you in court, whispering to defendants "ASK for a lawyer. Don't just accept one."