THE DEFENSE NEVER RESTS
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ACTIVIST COURT OPENS HOLE IN JUSTICE
June 5, 2009
MONTEJO v. LOUISIANA
In summary the Supreme Court now allows the police to speak to someone accused of a crime even if they have an attorney.
Montejo discards the importance of attorney representation and in its place
instigates a game of cat and mouse between the defendant and the police.
If a party is on notice that a person is represented by an attorney they
must speak with the attorney. The word attorney means "in its place". How
the attorney becomes the attorney for another is irrelevant. Added
safeguards do not denigrate the fact of representation. The majority turns
the attorney client relationship on its head. The majority puts form over
substance to achieve a grotesque end. The end of getting convictions at any
cost. Surely such learned jurist are familiar from which the law has come.
Getting convictions is the source of addiction which drives this addict
without reason. The addict is the people and emotion. The cure is the law.
Almost all of the safeguards were borne of the recognition of the vehement
emotion which accompanies crime and those accused of it. Yet another piece
of bedrock is eroded away in this decision. The erosion occurs at the
expense of logic and adherence to the attorney client relationship.
Of course the client can always go against his counsel's advice and speak to
whoever they please. In court this is a major event which is saddled with
layers and layers of assurances in both the criminal and civil arena. All
judges worth their salt adamantly insist that the person who wishes to
proceed pro se know exactly what they are getting in to, be it civil or
criminal matters.
Will such lack of substance of the attorney client relation permeate civil
matters? Hardly. The attorney client relationship is far too important in
matters involving more than five thousand dollars. In that arena, speak to a
person represented by a lawyer and you stand to be sanctioned by the court.
In less important matters where its only the life of an innocent person at
stake the requirement of speaking with the lawyer of someone who is known to
be represented is done away with. The import is simple for those less
inclined to legalese. Not it! If you fail to yell “not it” then you have
left yourself open to being “it”. Likewise if the innocent man charged with
a crime fails to yell “not it” or in this case “lawyer!” then that person is
fair game for all involved.
The court overlooks the practical nature of the situation as well. This
misstep speaks volumes for the lack of experience on the Court. How much
time has any of the justices spent in a courtroom wherein defendants are
"appointed" counsel. In many courtrooms the act is piled on with and buried
in a myriad of other significant rights such as bail and probable cause to
detain.
Many courts now turn to video relay to do such "ministerial" tasks. How is
the defendant to assert he wants a lawyer or that he ‘accepts’ a lawyer? In
many cattle calls the defendant is merely seen on a video feed. His (A)
lawyer standing at his side not having spoken to him much at all.
Is the defendant expected and required to verbally acquiesce in each
objection his lawyer makes at trial? According to this case it appears he
must. Silence means a lack of acquiescence. So Justice Scalia and Justice
Roberts can hang their hat on harmless error again and again where counsel
has failed to object because the defendant stood mute. An attorney “Filing
my appearance on BEHALF OF John Smith” is now meaningless unless the client
says “I accept”? Isn’t the attorneys assertion that he speaks on the persons
behalf sufficient? The acts of the attorney are binding upon the client
because the attorney IS the client. It is ridiculous to expect the client to
verbally assent to each important act of the process.
Activist judges here reach into the history of the law and unsettle a known
rule for the sake of getting that conviction. Gideon vs. Wainwright was not
that long ago. Maybe the activist court can take up that issue as well. The
goal of obtaining convictions will be promoted if Gideon is done away with.
Opinion
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