FED STUFF

Courtesy of everyone's favourite federal blogger,  Dade Circuit  Judges Jerald Bagley, Robert Scola,  Mary Barzee Flores,  and Darrin Gayles have applied for the vacancy in US District Court. 

(Click on the link for the full list).

We all know that the Chief (Judge Fred Moreno) got his start in the humble confines of county court in our Justice Building. But who can name the last Dade Judge who was appointed to the federal bench?  Who was the last female Dade Circuit Judge named to the Federal Bench?

Former Fed Prosecutor and current Dade Circuit Judge Daryl Trawick has thrown his hat into the ring to be the next US Attorney. Also on the list is  Judge Illona Holmes, who is currently chief judge of the criminal division North Of the Border. Can anyone tell us Judge Holmes' connection to our little building? 

THIS COULD BE A PROBLEM

The title of the post links to the US Supreme Court's recent decision in Caperton v. A.T. Massey. 

The case reached the Supremes when the West Virginia Supreme Court (motto: "readin and writin at the highest legal levels") voted 3-2 to overturn a 50 million dollar verdict.  

Una momento por favor:  One of the Justices in the majority had received a campaign contribution in an "extraordinary amount"  from the CEO of the company that was appealing the verdict.  

Writing for the majority, Justice Kennedy wrote that " Under our precedents there are objective standards that require recusal when the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.”   

Just how bad were things in West Virginia?  Of two of three judges in the majority, the CEO of the defendant company had contributed 3.5 million dollars to various election committees to get one of the justices elected, and took the other justice on vacation to the French Riviera during the time the appeal was pending.  

Such actions pass muster with Dick Cheney, but no one else.  Justice Kennedy took pains to make sure that the court's recognition of a constitutional violation when an elected judge receives campaign contributions from on of the parties does not cause a flood of recusal motions: 

Our decision today addresses an extraordinary situation 

where the Constitution requires recusal.  Massey and its 

amici predict that various adverse consequences will 

follow from recognizing a constitutional violation here— ranging from a flood of recusal motions to unnecessary 

interference with judicial elections.  We disagree. The 

facts now before us are extreme by any measure.  The 

parties point to no other instance involving judicial cam­ 

paign contributions that presents a potential for bias 

comparable to the circumstances in this case. 

Query: When do we see our first "Caperton motion" to disqualify a Judge in Dade because the attorney for one of the parties works in a law firm that raised a $100,000.00 for the Judge? 

And once that happens, and it will,  who will our poor dear robed readers turn to for campaign contributions?

While the Caperton case is extreme, even for Dade,  the ruling is best viewed as the beginning of a new area of litigation, not the end. 

See you in court, saying "show me the money!"

Tough Times for White Shoes

No, we're not talking about Houston Oiler kick returner Billy "White Shoes" Johnson, who ran through opposing team's kick coverage units in the NFL in the 1970's like Fast Gerry Klein used to a bond hearing calendar (until he was unceremoniously sacked like Chad Pennington facing a Ray Lewis blitz). 

Can you tell we're getting ready for football season? 

Anyway, what we are talking about are  tough times hitting those big high falutin "White shoe" Wall Street law firms. You know, the ones who sneered at us when we decided to go into criminal law while they did MA deals for the Street. Who's laughing now? Check out the Times Article on all their troubles here

Just to show we're still paying attention, our intrepid (if quiet) Public Defender still refuses to publicly discuss where the money went for the PD straw employees. Carlos Martinez remains ensconced in his Fortress Of Solitude, pictured below.

Nothing Super about his refusal to discuss this issue. 

RaIN RAIN

Go away, rain on Broward not us today. 

(Speaking of North of the Border, click on this link to read about an emerging scandal involving the Broward SAO, a disgraced DUI patrol officer, and an alleged coverup of immense and disturbing proportions.  If you have any inside information on this, please email us.)

The rain has knocked our internet service out on an intermittent basis. 

We have a lot to say, but little ability to say it. 

Some people have been hoping for this for years. 

But what countless legions of lawyers, judges  and others could not accomplish, mother nature has, at least on a limited basis. 

Talk amongst yourselves while we dry out. 

See you in court, with our Mac and bumbershoot. 

MURDER OR TAN?

Very quietly a real battle is shaping up over the prosecution of Aventura Developer Adam Kaufman for murdering his wife. 

The state and ME Dr. Bruce Hyma (someone we have found to be very thorough) aver that the woman died of mechanical strangulation. 

Attorney Bill Matthewman (who knows his way around a courtroom in the biggest cases) counters with  ME Dr. Ron Wright who states that the deceased died of natural causes. Matthewman also posits that the woman had an allergic reaction to a tanning lotion causing her to fall on a magazine rack that caused her asphyxiation.  

The title of the post links to the Herald article in which it is reported that Judge Miller denied bond on Wednesday. 

We will watch this one closely. 

Lets see- the Broward blog claims they are updating and will be bigger and better than ever. Meanwhile Federal Bloggers have abandoned their defense of Justice Scalia to complain about the traffic. Must be a slow month. 

FACDL PREZ Hector Flores asked us to post this link of photographs of the FACDL banquet.

If you just can't get through your day without espying a pic of Judge Miller or Judge Echarte in a tux, go to the website. 

See You in Court.

AT THE REQUEST OF JASON GREY

Jason Grey sent us this email

Dear rumpole, my wife of 15 years died monday at 4:41. she had struggled against cancer for 8 long years and couldn't go on she leaves me our 8 year old son jordan and literally hundreds of friends behind. I  ask you for a favor. ileana was a court reporter in the building from 1990 until 1997 many there knew her and loved her. she was truly the kindest sweetest person ever known. I have had a harder time dealing with this than I thought i would, even though it was long coming. here is my request: I am asked as many as 20 times a day how is Ily? How is your wife? I dont think i can tell 100 people what happened and answer all the questions ....

Could You pls post some type of announcement?  

Attached is the obit photo which will run tomorrow , the funeral is thur. at fred hunter in hollywood, from 10 am till 2 p.m.

Rumpole:  The funeral details are in blue.  It's a link.

GREGG WENZEL

For those of you who remember Gregg Wenzel, he was a Dade Public Defender in the mid-1990's. The title of the post links to a CIA press release confirming that Gregg Wenzel died in the service of his country as a field agent for the CIA in Ethiopia in 2003. 

From the press release detailing the ceremony at the CIA on Monday:

“During months of rigorous training, Gregg stood out as a leader, for his talent and for his intellect, but also for his great sense of humor and a great penchant for fun,” Director Panetta said. “He helped unite the class and kept its spirits high in the toughest moments.”

Overseas, Wenzel gathered intelligence on a wide range of national security priorities. In Director Panetta’s words: “At age 33, a promising young officer—a leader and friend to so many—was taken from us. We find some measure of solace in knowing that Gregg achieved what he set out to do: He lived for a purpose greater than himself. Like his star on this Wall, that lesson remains with us always.”

This story comes to us courtesy of Brian Tannebaum, who was Gregg's friend,  and has always worked to keep Gregg's memory alive.  True friend that he is, Brian went to the CIA ceremony honoring Gregg. Very nice. 

ASA David Ranck reports to us that he has been fired for his arrest on charges of battery on a pizza delivery woman. If Mr. Ranck was not in the middle of a contentious federal lawsuit with the State Attorneys Office, this story would not smell as bad as it does. 

GANT AND CARS: IS SCALIA OUR FRIEND?

UPDATE: We're sad to report ASA David Ranck was arrested last night on a contretemps involving a pizza delivery woman. He is presumed innocent. 

Before we begin, we take note of these petitions for cert:  Florida v. Powell  08-1175  and Florida v. Rigternik 08- 1229 in which the innocuous little question before the Scalia Court is  "must a suspect be expressly advised of his right to counsel before questioning, and if so, does the failure to provide this express advice vitiate Miranda v. Arizona?"

A certain federal blogger "pooh-poohed" (a legal term derived from Latin, meaning "summarily dismissed with a condescending air of 'I know more than you' ") our contention that Justice Scalia was drawing his sights on Miranda.  Scalia's pronouncements on society's overriding interest in successful prosecutions, along with his dicta about Miranda rights "purporting" to come from the Fifth Amendment raised our suspicions. We shall see if we are right.   Anyone care to bet if Scalia votes to grant cert? Anyone?

We turn today to the Supreme Court's recent decision in Arizona v. Gant because: 1) certain federal bloggers argued it was proof of Justice Scalia's warm embrace of the rights of the accused and 2) a review of Justice Alito's dissent on the issue of stare decisis is warranted based on Alito joining the Majority in Montejo v. Louisiana   and Steven's dissent exposing Alito as an unprincipled jurist when it comes to precedent. 

We address today the question of just how concerned Justice Scalia is with the rights of the accused. Unfortunately for certain Federal Bloggers, they are much better trial lawyers  than analysts  of Supreme Court Justices, because as you dear reader shall see, Scalia is anything but a friend of the accused. 

First: STEVENS  not Scalia wrote the majority opinion, as was his right as the senior justice in the majority. Scalia was along for the ride on this one- and was a reluctant rider at best. 

Gant rolls back some of the leeway police officers have taken in searching automobiles incident to arrest. Specifically, when an individual is stopped and arrested and in custody in the back of a police vehicle (the court's opinion makes no distinction as to whether it matters if the client was beaten up at the scene or the station) the police may no longer search the vehicle incident to arrest under NY v. Belton  because the suspect no longer has access to the items in the vehicle. 

Don't get too excited however, because Scalia the collectivist hauls the court back with his concurrence. Rather than hold that unless the police have probable cause to get a warrant, the interior of an automobile can not be searched, Scalia posits that it's OK for the police to execute a warrantless search of the interior of a car if "unique to the circumstances" of the arrest it is reasonable to believe evidence relevant to the crime of arrest may be found in the car"  US v. Thornton, 541 US 615,  632 (Scalia, concurring). 

To get Scalia in the majority in this case, Stevens had to agree to incorporate Scalia's concurring opinion in Thornton. It would seem to most law students that when the police have probable cause to believe that a private place contains evidence of crime, the 4th amendment requires that they get a warrant. However Scalia leaves us with the less than bright line rule that  the police can search a car sans warrant  if they somehow think the car contains evidence of the crime relating to the arrest.  

 How police somehow arrive at the belief a car they have not searched will contain evidence of a crime, remains to be seen, unless it's Officer Kreskin at the scene. 

Scalia's concurrence: (or as Ronald Regan would say: "there you go again.")  Scalia says first look to historical guidance of what the Framers sought to preserve. "If that proves inadequate"  then  apply "traditional standards of reasonableness."  If ever you wanted to make sure that Scalia does indeed believe in a living and breathing constitution, and will abandon original intent interpretation of the Constitution when it suits him,  just re-read that last sentence.   

 

Query: What defines "traditional standards of reasonableness?"  Is it Justice Steven's definition, or Justice Thomas's definition, or Justice William O Douglas's standard? 

Answer: It means what Scalia individually wants it to mean.  It's  a subjective, emotional, result driven analysis, despite what he will otherwise argue. 

Scalia opines that the historical scope of an officer's ability to search a vehicle incident to arrest is "uncertain". Where does he justify that conclusion?   His recent concurring opinion in Thornton.

 See- this guy creates rules in one case, and then applies them in the next case, willy nilly. His concurrence in Thornton is arguably not even law, but that doesn't stop him. 

Is Scalia really a friend of the defense bar as certain federal bloggers insist? 

You tell me:

In my view we should  simply abandon the Belton-Thornton charade of officer 

safety and overrule those cases. I would hold that a vehicle search incident to arrest is ipso facto “reasonable” only when the object of the search is evidence of the crime for 

which the arrest was made, or of another crime that the officer has probable cause to believe occurred.  Because respondent was arrested for driving without a license (a 

crime for which no evidence could be expected to be found in the vehicle), I would hold in the present case that the search was unlawful.

Certain federal bloggers have pointed with enthusiasm at Scalia's concurrence in this case as evidence of Scalia's concern with individuals, privacy, and the rights of the accused. Nothing could be further from the truth. (Practice tip- read the concurrence before citing to it).

Scalia himself admits he is a reluctant participant in the Steven's opinion:

No other Justice, however, shares my view that application of Chimel in this context should be entirely abandoned.  It seems to me unacceptable for the Court to come 

forth with a 4-to-1-to-4 opinion that leaves the governing rule uncertain. I am therefore confronted with the choice of either leaving the current understanding of Belton and 

Thornton in effect, or acceding to what seems to me the artificial narrowing of those cases adopted by JUSTICE STEVENS. The latter, as I have said, does not provide the 

degree of certainty I think desirable in this field; but the former opens the field to what I think are plainly unconstitutional searches—which is the greater evil. I therefore 

join the opinion of the Court. 

There you have it. An impassioned plea for a per se rule allowing warrantless searches of vehicles so long as officer Kreskin somehow knows the interior of the car contains evidence of the crime for which the defendant was just arrested. 

Hardly sounds like an impassioned defense of privacy rights, the rights of the accused, and the 4th amendment.  But then what do we know? 

We went to  school on the wrong side of the Charles river. (*) 

Coming soon: Alito and stare decisis. 

(*) Don't get too excited. In our view, that means everywhere from Kenmore Square to the Pacific Ocean. 

3rd DCA ROUNDUP

Better late than never, considering the volume of Supreme Court cases we have been reading lately:

Brown v. State: Judge Mark King Leban joins the HALL OF FAME (as opposed to the hall of shame) for conducting an evidentiary hearing on a rule 3 motion, and issuing a decision based on facts that the record supports. Take a bow Judge Leban, well done. (And dare we say dozens of your colleagues hanging in the hall of shame should take note of your thoroughness.) 

Fleuirmond v. State (or- how not to prosecute a case if you  want a snowball's chance in hell of having the conviction hold up on appeal.)

The Defendant was charged with drug trafficking. The court granted the defense's motion in limine to preclude the witnesses from testifying that the case occurred in a "high crime area." But you know these cops and prosecutors. They just love that "high crime area" argument. Totally irrelevant, but it's got "jury appeal". 

As the court of appeals wrote: 

The prosecutor stated that she had so instructed some of the 

officers, but was not sure if all of the officers had been so instructed.  The judge 

then stated, “I don’t want anything, any testimony about high crime area, any 

previous contact with anybody.” The prosecutor replied, “Surely, Judge. 

Understood.” 

 Incredibly, minutes later, one of the members of the police surveillance team 

gratuitously interjected the exact type of testimony that the motion in limine had 

tried to prevent. 

Say what you want about this ASA, but this silver tongued devil was not caught short when the court inquired about why the motion in limine had just been violated:

The prosecutor admitted that she had not 

complied with the court’s order.  When asked why she had disobeyed the court’s 

order, the prosecutor responded, “Judge, I mean, I absolutely -- the only -- you are 

right.”  

Talk about oral advocacy. 

Anyway, this ASA was not done, because she then resorted to imaging facts that she then argued in opening and closing argument. This is generally considered a "no-no" except in Texas and certain parts of Louisiana:

First, the prosecutor told the jury in opening statement that when police 

officers went into the house that had been under surveillance, they found 

Fleurimond attempting to flush drugs down the toilet.  The only place the 

defendant was flushing drugs down any toilet was in the prosecutor’s imagination 

because, during trial, the State presented no such evidence. During closing 

argument, the prosecutor told the jury: 

Now, this is all being radioed. This is not happening in 

split seconds. It’s happening quickly, but time is elapsing. 

And then the police go in and they find Mr. Fleurimond 

in the bathroom flushing the drugs down the toilet. 

Not surprisingly, the defendant will be receiving a new trial. 

SR v. State. A good case explaining the standard for a judgment of acquittal in self defense cases. Basically, when the defense proffers a self defense claim, the state's proof must rebut beyond a reasonable doubt the defendant's claim that s/he acted in self defense. If you have a self defense case going, read this one and print it out for the file. 

State v. Williams. Judge Rothenberg reversed Judge Alan Schwartz who was sitting as a trial judge and who granted an unsworn "sworn" motion to dismiss in which is was alleged that the item used to hit the victim ( a firearm) was not a deadly weapon. Note to Judge Schwartz:  sworn motions must be sworn to and firearms are, um...deadly weapons pretty much by definition. 

THIS IS WHAT AN OPINION SHOULD BE

UPDATE:   BANNED IN BROWARD!!!!

The Broward Blog reports here that their blog, our humble little blog, and even the staid and stuffy Federal Blog run by our favourite federal blogger, David O Markus with a K has been BANNED in the Broward County Courthouse law library computers. Our sites have been blocked. 

Why the nerve of those cretins.....

Concise. To the Point.  Strict constructionist. Recognizing that emotionally the Plaintiffs are damaged, but following the letter of the law, which did not allow them to collect.  

Justice Scalia take note: 

Judge Gillis is at work.

The Justice Building Blog proudly presents to you 

Fisher v. Lowe,  333 N.W 2nd 67 (Mich. App. 1983) ( West Headnotes included)

A wayward Chevy struck a tree
Whose owner sued defendants three.
He sued car's owner, driver, too,
And insurer for what was due
For his oak tree that now may bear
A lasting need for tender care.
The Oakland County Circuit Court,
John N. O'Brian, J., set forth
The judgment that defendants sought,
And quickly an appeal was brought.
Court of Appeals, J. H. Gillis, J.,
Gave thought and then had this to say:
1) There is no liability,
Since No-Fault grants immunity,
2) No jurisdiction can be found
Where process service is unsound;
And thus the judgment, as it's termed
Is due to be, and is
Affirmed.

[1] AUTOMOBILES k251.13
Defendant's Chevy struck a tree,
There was no liability.
The No-Fault Act comes into play,
As owner and the driver say.
Barred by the act's immunity,
No suit in tort will aid the tree.
Although the oak's in disarray,
No court can make defendants pay.

[2] PROCESS k4
No jurisdiction could be found,
Where process service is unsound.
In personam jurisdiction
Was not even legal fiction
Where plaintiff failed to well comply
With rules of court that did apply.

* * *

J. H. GILLIS, Judge.

We thought that we would never see
A suit to compensate a tree.
A suit whose claim in tort is prest,
Upon a mangled tree's behest;
A tree whose battered trunk was prest
Against a Chevy's crumpled crest;
A tree that faces each new day
With bark and limb in disarray;
A tree that may forever bear
A lasting need for tender care.
Flora lovers though we three,
We must affirm the court's decree.

Affirmed.

STARE DECISIS

Or- "How to over rule precedent in five easy steps and on five dollars a day."

A treatise. By Antonin Scalia. Assoc. Justice. U. S. Supreme Court. 

Our last post dealt with the decision in Montejo v. Louisiana, and our belief that it represented the thin edge of a larger wedge created by Justice Scalia.  A wedge whose ultimate end is not the evisceration of the 6th Amendment right to counsel, but the prophylactic protections of Miranda and the 5th Amendment. 

Montejo overturned Jackson, and to overturn Jackson (and sleep at night) Justice Scalia needed to create some rules of constitutional construction vis a vis the whens, wheres, whys and how-tos in reversing a previous supreme court precedent. 

RULE ONE: A precedent can be reversed if it proves "to be unworkable" 

To the  contrary, the fact that a decision has proved “unworkable” 

is a traditional ground for overruling it.  Payne v. Tennes- 

see, 501 U. S. 808, 827 (1991). 

Well, to the extent that school desegregation has still proven to be difficult if not unworkable in many states and cities, there goes Brown v. Board of Ed. 

RULE TWO: The younger a precedent, the more it is fair game to be reversed. 

Beyond workability, the relevant factors in deciding 

whether to adhere to the principle of stare decisis include 

the antiquity of the precedent....

Korematsu v. US is in, and dare we say it...Roe v Wade stays as is, but Gore v. Bush is still up for grabs. Al may make it to the oval office yet. 

RULE THREE (and now the cat is out of the bag) A decision that is not "well reasoned" may be reversed. 

the relevant factors in deciding  whether to adhere to the principle of stare decisis include 

the antiquity of the precedent, the reliance interests at 

stake, and of course whether the decision was well reasoned. 

We imagine that the six justices who joined in the majority in Jackson believed the opinion was "well reasoned" when it was decided.   Stevens wrote  the opinion joined by Chief Justice Burger who concurred, and White, Brennan, Marshall and Blackburn.  Jackson was no 5-4 squeaker. 

 

But this is  Scalia, who decries jurisprudence by instinct, emotion,  or result (except when his ox is gored).  Beyond Scalia saying the decision was not well reasoned, there is nothing to support his contention. Scalia  rarely if ever cites to the language of Jackson.  And as even Scalia points out, for the last 23 years police and prosecutors have been trained in the holding in Jackson and have managed for the most part to live within it's dictates. Indeed, 6th amendment litigation on this issue can not really be called confused or unworkable. There was what appeared to be a bright line rule, and the lower court decisions are uniformly applications of the rule to the facts of the individual cases before the court. 

How does Scalia attack the reasoning of Jackson? Not by the words of the case. Nor by logic. As we wrote yesterday, it is Scalia the collectivist who is at work here. And despite the protestations of my brother blogger Mr. Markus, Scalia is no friend of the individual when it comes to society and the rights of the accused. 

RULE 3A: Well reasoned means "cost/benefit analysis":

Which brings us to the strength of Jackson’s reasoning. 

When this Court creates a prophylactic rule in order to 

protect a constitutional right, the relevant “reasoning” is 

the weighing of the rule’s benefits against its costs.  

(Rumpole: so "reasoning" doesn't mean logic. It means a cost/benefit analysis. Just where in the federalist papers does this definition of reasoning arise?) 

“The value of any prophylactic rule . . . must be assessed not 

only on the basis of what is gained, but also on the basis of 

what is lost.” Minnick, 498 U. S., at 161 (SCALIA, J., dis- 

senting). We think that the marginal benefits of Jackson 

(viz., the number of confessions obtained coercively that 

are suppressed by its bright-line rule and would otherwise 

have been admitted) are dwarfed by its substantial costs 

(viz., hindering “society’s compelling interest in finding, 

convicting, and punishing those who violate the law.

Note who Scalia cited to: Scalia (in dissent no less). And remember what I wrote yesterday: Scalia wrote Montejo to create rules of construction that will at some later date give him the opportunity to reverse Miranda. 

RULE FOUR: Does the right have other big brothers to protect it? 

Jackson was policy driven, and if that policy is being adequately served through other means, there is no reason  to retain its rule. Miranda and the cases that elaborate 

upon it already guarantee not simply noncoercion in the traditional sense, but what Justice Harlan referred to as “voluntariness with a vengeance,” 384 U. S., at 505 (dis- 

senting opinion).  There is no need to take Jackson’s further step of requiring voluntariness on stilts. 

This is the "don't worry this won't effect you one bit" theory of constitutional law. As Scalia sees it, Jackson addressed a problem: coerced confessions. Since the issue of coerced confessions are adequately covered by Miranda and the 5th amendment, who needs Jackson? Space is at a premium and Jackson was taking up space- so out it goes.

So there you have it- how to overturn precedent in four easy steps. 

One einy, weeiny, teeny tiny problem:

“The philosophy of a living constitution -- which means it doesn’t mean what the people agreed to when they adopted it -- is a very seductive theory. It’s seductive for judges because it empowers them. It’s seductive for law professors because it lets their imaginations run wild.”

Antonin Scalia- speech to the Federalist society, November 25, 2008. 

Rumpole wonders: just where did these four rules for overturning supreme court decisions come from, if not the empowered imagination of a certain Supreme Court Justice?  You certainly can't find those rules in the constitution, or the federalist papers, or in any case I've ever read. 

Don't worry Nino- Ralph Waldo Emerson wrote that "a foolish consistency is the hobgoblin of little minds"

Coming next: For Sale: One soul, along with pride and intellectual honesty. Contact Sam Alito. Financing available. 

SUPREME COURT

Update- our favourite federal blogger has temporarily lost his marbles. Go see his blog and see what he says about Scalia. 

With the Supreme Court taking center stage in the news, we present to you a few supreme tidbits: 

Supreme Court Decision Predictor...... It turns out there is a lock solid way to determine which side won and which side lost after oral arguments before the Supreme Court: The side receiving the most questions loses. This predictor has been determined to be correct more than 84% of the time. Almost as good as our football predictions.   The title of the post links to the NY Times story. 

Sotomayor: Chosen because: 1) She's a woman; 2) She's Hispanic; 3) She can easily win confirmation (she was nominated to the district court by George Bush Sr. (The Good Bush) and to the Appeals bench by Clinton); 4) Because she's a Yankee Fan. 5) She's the best and the brightest around.

Pick one or all and let us know. 

The Supreme Court issued a major 6th Amendment decision Tuesday:

Montejo v. Louisiana: When Scalia writes for the majority in a criminal law case, you know it can't be good.  Scalia was hunting, and the scope of the 6th Amendment was squarely within his sights. But he also has bigger prey in mind, as we shall see. 

In Jackson v. Michigan, decided a scant (in Supreme Court time) 23 years ago, the court held that the police cannot initiate interrogation when a suspect has appeared at an arraignment and been assigned counsel. 

Montejo appeared at a preliminary hearing  and stood "mute". Uhho. Never a good idea when Scalia is around.  Montejo was appointed counsel. But those cops- geez they are fast. Before his lawyer could see him, the cops grabbed Montejo, took him out to the scene to locate the murder weapon, and just for good measure,  the cops encouraged Montejo to write a letter of apology to the widow of the deceased. This being Louisiana, Montejo was sentenced to death for poor spelling in the letter, and murder. 

As Scalia winds his way through the analysis of why neither the solutions of the Louisiana Supreme Court nor Montejo are "practical" we note this chilling passage and can see Scalia's lean and hungry look when it comes to .....Miranda???!!!!!:

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 

Amendment:...

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."