Obama to end representation in interrogations?

posted at 10:00 am on April 25, 2009 by Ed Morrissey

Apologies to Glenn Reynolds, but they said if I voted for a Republican in 2008, I’d wind up with an autocratic administration determined to wipe out civil rights — and they were right!  The Obama administration has argued for the end of the Michigan v Jackson ruling that requires police to provide an attorney for a suspect once one has been requested.  They argue that the benefits are “meagre,” as the Telegraph puts it:

The effort to sweep aside the 23-year-old Michigan vs Jackson ruling is one of several moves by the new government to have dismayed civil rights groups. …

The Michigan vs Jackson ruling in 1986 established that, if a defendants have a lawyer or have asked for one to be present, police may not interview them until the lawyer is present.

Any such questioning cannot be used in court even if the suspect agrees to waive his right to a lawyer because he would have made that decision without legal counsel, said the Supreme Court.

However, in a current case that seeks to change the law, the US Justice Department argues that the existing rule is unnecessary and outdated.

The sixth amendment of the US constitution protects the right of criminal suspects to be “represented by counsel”, but the Obama regime argues that this merely means to “protect the adversary process” in a criminal trial.

The Justice Department, in a brief signed by Elena Kagan, the solicitor general, said the 1986 decision “serves no real purpose” and offers only “meagre benefits”.

Can you imagine what the outcry over this would have been had President John McCain, or for that matter President George W. Bush, had tried this?  Newspapers around the nation would have decried his assault on civil liberties.  PFAW and the ACLU would have staged rallies in every American city, and they would have called Bush, McCain, or any other Republican a fascist for denying legal counsel to people under police questioning.  We’d have an endless line of appearances on television news programs from people who got coerced into false confessions after having been denied counsel.

Instead, with Obama in office, we have to discover this from a British newspaper.  The only other coverage seen on this side of the pond has been from SCOTUS Blog (neutral analysis) and the HuffPo’s reprint of an AP report.

Rolling back Michigan v Jackson would be a mistake.  People who ask for an attorney should get one without further questioning.  Americans have the right to counsel at all stages of the process, not just in court, as Obama argues.  The adversarial process begins with arrest and interrogation, not when people first face a judge.  While Miranda has been turned into a fetish, Michigan actually does the work Miranda promises — to get people counsel when they most need it.  That does serve a real purpose, despite what Obama argues.

Wasn’t Barack Obama supposed to be a Constitutional scholar?  Was that in the How To Dismantle school of thought?


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Comment pages: 1 2

Where in the Constitution does it say you’re entitled to a phone call?

Proud Rino on April 25, 2009 at 12:02 PM

Where in the Constitution does it say you’re not?

Limerick on April 25, 2009 at 12:03 PM

calguyintexas on April 25, 2009 at 11:38 AM

I did qualify the thought as “crazy”.

I’m not dismissing it completely, but many of Obama’s antics fall under Hanlon’s Razor (“Never attribute to malice that which can be adequately explained by stupidity”), and I admit I can’t decide if this particular issue is malice or stupidity, or both.

And trying to figure out which makes me have crazy thoughts…

ZenDraken on April 25, 2009 at 12:03 PM

Tyrant wanna-bees are such predictable creatures.

And what does the ACLU say?

tarpon on April 25, 2009 at 12:06 PM

Where in the Constitution does it say you’re not?

Limerick on April 25, 2009 at 12:03 PM

Where in the Constitution does it say you’re not allowed to murder anybody?

Proud Rino on April 25, 2009 at 12:06 PM

Proud Rino on April 25, 2009 at 12:06 PM

Just pointing out that your original question is as lame as my retort. You can’t have it both ways Rino, even in libertarian land.

Limerick on April 25, 2009 at 12:08 PM

“The tenth rule… is you do what you can with what you have and clothe it with moral garments…. It involves sifting the multiple factors which combine in creating the circumstances at any given time… Who, and how many will support the action?… If weapons are needed, then are appropriate d weapons available? Availability of means determines whether you will be underground or above ground; whether you will move quickly or slowly…” p.36

Alinsky’s Rules for Radicals

Could it be President Pantywaist is getting his strategy from here?

kingsjester on April 25, 2009 at 12:09 PM

Where in the Constitution does it say you’re not allowed to murder anybody?

Proud Rino on April 25, 2009 at 12:06 PM

Ok, I’m no lawyer, or constitutional expert, but here’s my take. lol You have the right to life, liberty, and the pursuit, of happiness. If I were to strip someone of their life….by murdering them, I violated their rights. That in, and of itself, would be criminal. Does that work?

capejasmine on April 25, 2009 at 12:09 PM

And the liberals think Conservatives are more prone to the establishment of government without Constitutional or derived protections.

Oh, the irony…

Miranda and the decision in Gideon v. Wainwright were both inspired to protect an entire class of Americans, and resident aliens, from the over reach of government…the poor protected from the boundless wealth and means of the State.

Is Gideon v. Wainwright to be tossed out, as well as Michigan v Jackson?

Seems if Jackson goes…Gideon will follow.

And it will be Conservatives who will be blamed as history is re-written…but Liberals who are responsible.

And we all know how much Liberals are the champions of the poor unwashed masses…

coldwarrior on April 25, 2009 at 12:11 PM

Hey….by my previous thought, it could work against national health care. If they deny certain procedures, or medicines, as a cost saving method, and those who could have , or live a healthier life are denied meds, or procedures, to sustain that life…..isn’t that against our rights to life, liberty, and happiness?

capejasmine on April 25, 2009 at 12:12 PM

that’ll just going to make it easier to prosecute thought crime. i wish i said that in sarcasm.

cpr on April 25, 2009 at 12:13 PM

And we all know how much Liberals are the champions of the poor unwashed masses…

coldwarrior on April 25, 2009 at 12:11 PM

Yup! Keep them poor, ignorant, and beholden. Then they are your slaves for eternity!!!

capejasmine on April 25, 2009 at 12:16 PM

How many pieces of this puzzle have to fall in place before people start to see the big picture?

jimmy2shoes on April 25, 2009 at 12:17 PM

Seems if Jackson goes…Gideon will follow.

coldwarrior on April 25, 2009 at 12:11 PM

That’s wrong. Jackson applies to police interrogations. Gideon applies to indigents needing a lawyer *in the courtroom*. There’s a difference.

Gideon is here to stay. Jackson might not be. If you invoke your right to an attorney, they will bring in an attorney to tell you not to say anything, which is a waste of both time and money.

Proud Rino on April 25, 2009 at 12:20 PM

I hate lawyers so anything that deprives them of income (especially the ones being paid by the tax payers) is fine with me. My other big beef is there are just too many laws. This is what you get when we have more lawyers than any modern industrial nation in the world. Who do you think wrote all those IRS tax laws? I would think many here would think we would be a lot better off with about half as many lawyers (and MBA’s too!).

SocratesShadow on April 25, 2009 at 12:26 PM

Wasn’t Barack Obama supposed to be a Constitutional scholar? Was that in the How To Dismantle school of thought?

He was ummm dreaming of his father, a lot, in class.

Speakup on April 25, 2009 at 12:27 PM

He is a Fascist, limp wristed, but a Fascist none the less

jp on April 25, 2009 at 12:29 PM

Pleased note that the United States has been joined in its view by Louisiana, New Mexico, Alabama, Colorado, Delaware, Florida, Kansas, Pennsylvania, Utah, Washington, and Wyoming.

And the question here is not, as Ed asserts, whether the police are required to provide a lawyer to a criminal defendant once the defendant has requested one. Nobody denies that. Rather, the question is: May the defendant subsequently waive his right to counsel?

Now you may want to argue — as the ACLU does — that once a defendant has counsel, he may not shed it, whether he likes it or not. (This was the holding in Michigan v. Jackson.) But let’s not misrepresent the views of the Obama Administration or of the several states.

paul006 on April 25, 2009 at 12:29 PM

How many pieces of this puzzle have to fall in place before people start to see the big picture?

jimmy2shoes on April 25, 2009 at 12:17 PM

I keep asking myself the same thing. I can’t believe this isn’t all over the news. The ACLU should be up in arms. I’m not even seeing this on Foxnews.com???

ImRight on April 25, 2009 at 12:30 PM

Proud Rino on April 25, 2009 at 12:20 PM

Yes, of course Jackson only applies to those hours after arrest and not court, which is what Gideon provided.

And there is a lot more to having an attorney present than an attorney telling you to clam up when the police ask you questions. In the real world, that is.

But, once Jackson, for example, is tossed aside in the name of expediency, or cost savings, there are other “protections” under the law that can easily be dispensed with under the same rubric.

LA county has already announced that they will prosecute only major offenses for the near term since they don’t have the funding to prosecute less serious crimes. Major felonies first, less severe felonies second, misdemeanors not at all.

I am sure petty criminals and a few others are warm to this idea…but what of the victims of those crimes no longer being actively prosecuted…in the name of expediency and cost cutting?

There is a cost for crime…and it is not police budgets.

Are our Liberties and Freedoms, and our fundamental Rights to be tossed out to help balance a State’s budgetary bottom line?

Incrementally assaulting various protections as too expensive, or too inconvenient, and from the Left, seems to be ultimately ironic. And, it is in this incremental erasure of protections that will enable our criminal law system to be eroded to a point where only those who are politically connected, or wealthy, will be able to afford the blessings of Liberty…and that does disturb me, greatly.

coldwarrior on April 25, 2009 at 12:34 PM

Very dangerous,I think. And it’s starting to look like Obam’ter is TRYING to be a one-termer.

JamesLee on April 25, 2009 at 12:34 PM

Proud Rino on April 25, 2009 at 12:06 PM

You go girl…..keep defending the actions of this administration and congress as they embark on unprecedented domestic power grabs, take over private businesses, speak of limiting salaries and controlling medical treatments, income redistribution and mandatory “public service”. They insist on apologizing to the world for our counties success and greatness and seek via moral relativity to appease tyrants, regimes and cultures that would revel in our destruction. Meanwhile the free on open press has become nothing short of a propaganda ministry. Calling yourself a Proud Rino says it all I need to know about you…all hail!

dmann on April 25, 2009 at 12:35 PM

Hey….by my previous thought, it could work against national health care. If they deny certain procedures, or medicines, as a cost saving method, and those who could have , or live a healthier life are denied meds, or procedures, to sustain that life…..isn’t that against our rights to life, liberty, and happiness?

I bet someone smarter than me could also come up with and “equal protection” case with Universal Health Care, especially if someone is denied treatment or admittance to the program for whatever reason.

JamesLee on April 25, 2009 at 12:36 PM

And there is a lot more to having an attorney present than an attorney telling you to clam up when the police ask you questions. In the real world, that is.

Like what, exactly?

But, once Jackson, for example, is tossed aside in the name of expediency, or cost savings, there are other “protections” under the law that can easily be dispensed with under the same rubric.

Possibly. I’m not sure this is a slippery slope issue. It does call into question various other doctrines though.

Like I said, I’m against it. But let’s be honest about what we’re opposing.

Proud Rino on April 25, 2009 at 12:53 PM

Simple reasoning here. When they start rounding up uppity conservatives the numbers will be so vast that having to provide legal representation will be unsupportable.

FireBlogger on April 25, 2009 at 12:53 PM

I am always amazed at the tricks cops pull on these shows, especially Law and Order. I know it is TV but they do have consultants from the law field and police to help them with authenticity, so some of it must be realistic.

Jvette on April 25, 2009 at 11:09 AM

There was an episode on David Simon’s old show Homicide, where all the detectives spoke into the camera, advising the audience what they needed to do if they were arrested. Remember, Simon was a crime reporter in Baltimore, and had extensive contact with law enforcement and the city prosecutors.

The advice was simple:
1. Once you’ve been arrested, the police are NOT your friends, and do not want to help you. They want you to talk, talk, talk, and if it backs up their theories or allegations, so much the better.

2. If you are arrested, SIGN NOTHING, SHUT YOUR CAKEHOLE AND REQUEST LEGAL REPRESENTATION.

I’m no legal expert, but if the Jackson ruling is changed, that means that advice point number 2 is even more important.

It is totally perplexing why an uber-liberal administration would want to limit the rights of the accused, unless, of course, there’s some ulterior motive.

melkor on April 25, 2009 at 12:54 PM

Pleased note that the United States has been joined in its view by Louisiana, New Mexico, Alabama, Colorado, Delaware, Florida, Kansas, Pennsylvania, Utah, Washington, and Wyoming.

And the question here is not, as Ed asserts, whether the police are required to provide a lawyer to a criminal defendant once the defendant has requested one. Nobody denies that. Rather, the question is: May the defendant subsequently waive his right to counsel?

Now you may want to argue — as the ACLU does — that once a defendant has counsel, he may not shed it, whether he likes it or not. (This was the holding in Michigan v. Jackson.) But let’s not misrepresent the views of the Obama Administration or of the several states.

paul006 on April 25, 2009 at 12:29 PM

Ahh… I see…it’s so clear now…

So if the defendent asks for an attorney at the initial hearing you want the ruling changed so that the police can interrogate the defendent again at 1am with no council present unless the defendent asks again. Then they can do it at 2am… then 3am… then 4am… then the next night…

Just a silly little right…

Skywise on April 25, 2009 at 12:54 PM

How many pieces of this puzzle have to fall in place before people start to see the big picture?

jimmy2shoes on April 25, 2009 at 12:17 PM

Some of us see it Jimmy.

FireBlogger on April 25, 2009 at 12:55 PM

I am always amazed at the tricks cops pull on these shows, especially Law and Order. I know it is TV but they do have consultants from the law field and police to help them with authenticity, so some of it must be realistic.

O/T: I have been offline since yesterday morning,

Why and when was getalife banned?

Jvette on April 25, 2009 at 11:09 AM

A friend of mine is a police detective. They absolutely DO use deception to do their jobs. I am very much pro-cop, but if this means what Ed is suggesting, this is chilling in the extreme.

capitalist piglet on April 25, 2009 at 12:55 PM

So, I guess Miranda is on the way out, too. You all realize that this is coming out so that they can try the conservatives that are in The Won’s path towards becoming The King.

I watched a video presented by a lawyer recently, who said that the only answer to police questions should be, “I respectfully decline to answer based on my 5th Ammendment rights.” Some police, when desperate to find a criminal, have edited videos, recordings, and their notes. Better, he says, to say nothing.

TimothyJ on April 25, 2009 at 12:58 PM

Alinsky’s Rules for Radicals

Could it be President Pantywaist is getting his strategy from here?

kingsjester on April 25, 2009 at 12:09 PM

The overall strategy, yeah. This particular strike? Straight from Holder.

I don’t necessarily have a problem with ditching the part where tossing statements after a lawyer has been waived. That part has always bugged me. The overall part of it though, this worries me. The whole reason for having that lawyer present is because not even the cops know the whole law of what they can and cannot do. Look at all the cases that are thrown out because the cops make ridiculous mistakes that even we wonder what they’re doing. The average person? Doesn’t know a fraction of what can and cannot be done by the authorities. That’s the very reason for having an atty present. BTW, The One may have a limp wrist on foreign policy, but don’t think there’s not an iron fist for here at home. Remember His mentor, Bill Ayers? The guy who recommended reeducation camps? The guy who knew there would be some who stayed recalcitrant, and that upwards of 25mln American citizens would have to be eliminated?

bikermailman on April 25, 2009 at 1:05 PM

Tilling the soil. Just tillin the soil.

notagool on April 25, 2009 at 1:06 PM

Like what, exactly?

Proud Rino on April 25, 2009 at 12:53 PM

Among other things, establishing an account of record to use if/should/might’nt the police take it upon themselves to change anything…i.e., edit, cut, splice or otherwise play with notes, videos, audio tapes, evidence. Not that that ever happens in real life, of course. Another would be to have an attorney present as early as possible to examine on what basis the arrest was/may have been made, with an eye toward building a pro-active defense, and this would include technical details as well as legalisms of which the average American would be totally unaware.

Seems this Administration is more interested in providing total legal coverage and in-depth legal representation to those who would try to kill us, than those who might just have been intending to boost your ride, or sell a little blow, or heaven forbid, engage in active protest against governmental policies. Again, irony.

coldwarrior on April 25, 2009 at 1:11 PM

The One may have a limp wrist on foreign policy, but don’t think there’s not an iron fist for here at home. Remember His mentor, Bill Ayers? The guy who recommended reeducation camps? The guy who knew there would be some who stayed recalcitrant, and that upwards of 25mln American citizens would have to be eliminated?

bikermailman on April 25, 2009 at 1:05 PM

Exactly. Which brings me to thoughts on why mass graves are being dug, at Houston National Cemetary, and a National Cemetary, in Phoenix. Why did a police officer arrest a reporter, and his camera man, for doing nothing more, than stand on the sidelines, and report a story?

I agree we have to many laws, and to many lawyers, that’s not going to be disputed by me. But I’m pretty dang sure, that if I were ever to be arrested, I’d like to know that I would have access to legal counsel, while being questioned.

FYI…I’ve never been arrested, but the way things are headed, this crap really scares me!!!

capejasmine on April 25, 2009 at 1:16 PM

I saw the headline about the reporter being arrested, but was busy, didn’t read, and it fluttered right out of my consciousness later. What was the deal?

bikermailman on April 25, 2009 at 1:21 PM

So if the defendent asks for an attorney at the initial hearing you want the ruling changed so that the police can interrogate the defendent again at 1am with no council present unless the defendent asks again. Then they can do it at 2am… then 3am… then 4am… then the next night…

Just a silly little right…

Skywise on April 25, 2009 at 12:54 PM

I didn’t express an opinion about Michigan v. Jackson, or about the government’s view that it should be overruled. I merely noted the nature of the holding in that case, and that several state attorneys general — some of whom are Republicans — have joined the Obama Administration as amicus.

And the question in Montejo v. Louisiana is not whether the police may interrogate a defendant again at 1 a.m. in the absence of counsel. The question is whether the defendant may ever waive the right to counsel after having initially asserted the right. Now you might argue that once a defendant has counsel, he may never waive his right to it, and that if he undertakes to confess in the absence of his lawyer, his confession may not be introduced as evidence at trial. (This is the view of the ACLU and of the criminal defense bar.) But you ought to be clear that, in the context of this case, that is what you’re arguing.

paul006 on April 25, 2009 at 1:25 PM

It all boils down to Miranda:

You have the right to remain silent. (I suggest that one does so.)

Anything you say can and will be used against you in a court of law.

You have the right to an attorney.

If you cannot afford an attorney, one will be appointed for you.

thomasaur on April 25, 2009 at 1:39 PM

I saw the headline about the reporter being arrested, but was busy, didn’t read, and it fluttered right out of my consciousness later. What was the deal?

bikermailman on April 25, 2009 at 1:21 PM

Go to the home page, and scroll down. Allah posted about it, last night. :)

capejasmine on April 25, 2009 at 1:39 PM

Im not legal scholar. But if you want to say nothing until your lawyer gets there, keep your mouth shut and don’t say anything.

Seems like if you’re dumb enough to talk to the po-po sans lawyer well then you have to deal with the consequences.

angryed on April 25, 2009 at 1:43 PM

Very dangerous,I think. And it’s starting to look like Obam’ter is TRYING to be a one-termer.
JamesLee on April 25, 2009 at 12:34 PM

Of course he is. But is anyone really dumb enough to think that the ONLY part of the Constitution Obama will respect is the part about the length of a Presidential term?

logis on April 25, 2009 at 1:50 PM

angryed on April 25, 2009 at 1:43 PM

I don’t disagree with your viewpoint, just want to know when will your lawyer get there? When will you be allowed to contact the outside world? How long, and how often, can the police continue to question you? Right up to the time they select a jury? Seems like precious little time to prepare your defense.

Limerick on April 25, 2009 at 1:50 PM

Of course he is. But is anyone really dumb enough to think that the ONLY part of the Constitution Obama will respect is the part about the length of a Presidential term?

logis on April 25, 2009 at 1:50 PM

You sound like a left-tard circa 2005 who was convinced Bush would make himself King for Life.

angryed on April 25, 2009 at 1:53 PM

I don’t think you really understand the issue, Ed. This is the point:

The government said that suspects have the right to remain silent, and that officers must respect that decision. But it argued that there is no reason a defendant who wants to speak without a lawyer present should not be able to respond to officers’ questions.

So the real issue is whether the Constitution requires, in addition to the right to remain silent and the right to counsel, the police to protect a defendent from his own stupidity at all times. This lawyer says no.

Infidoll on April 25, 2009 at 2:08 PM

If the SCOTUS upholds the administration, wait until the first black or latino suspect is questioned without counsel present and watch the outcry among civil rights groups. As long as they confine questioning to white male suspects, who is going to raise a stink? We all know that middle-aged white men are the source of all evil, unless they are liberals.

College Prof on April 25, 2009 at 2:22 PM

This is nuts. A right to an attorney is an important protection given that the law is far too complicated for many individuals to adequately be informed of the rights and protections. To expect every individual to be as versed in the law, as a lawyer or peace office who make that their living, is unrealistic. Though with the number of lawyers in America it may someday be a reality. Repeal all laws except the constitution and then maybe citizens will no longer require the protection afforded by an attorney. And this is coming from somebody that thinks defense attorneys are, for the most part, bottom feeders.

Ignorance of the law is rampant. Many don’t even know that they cannot be forced to be taken in for questioning without first being charged with a crime. A police officer can stop & detain you if he suspects a crime, but only for a limited time until he can confirm or deny his suspicion.

Stickeehands on April 25, 2009 at 2:31 PM

Where in the Constitution does it say you’re entitled to a phone call?

Proud Rino on April 25, 2009 at 12:02 PM

Constitution of the United States
Bill of Rights: Sixth Amendment (as follows)

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

There’s your phonecall pal.

Read it and weep.

Chaz706 on April 25, 2009 at 2:35 PM

I can only guess they really are tilling the soil as one said above.

Tilling in preparation for that day when the only crimes in America will be crimes against the State.

As truth and morality have been swept aside, what else will be “left.”

Think about it.

redneck hippie on April 25, 2009 at 2:42 PM

And one more thing about the Miranda Rights:

They are a perfectly legitimate interpretation of the sixth amendment rights (as enumerated above).

So to say those aren’t grounded in the constitution isn’t a valid argument. In fact, Miranda v. Arizona say these stem from the Fifth Amendment.

In other words, in order for Oblahblah to do this, he’d have to repeal two amendments from the Bill of Rights.

Chaz706 on April 25, 2009 at 2:46 PM

Here’s how it works…
Say someone files a complaint against you… ex-spouse, neighbor you don’t get along with, whatever, you know it’s b.s., but… The police come pick you up as late as possible on a Friday, (they do this on purpose) you request a lawyer, you go into lockup. Unless you happen to have a lawyer on retainer, a public defender is not going to spontaneously appear on a Friday nite and if you are too “rich” for a public defender, good luck finding a lawyer on short notice. Then an officer arrives, “Oh darn, no court til Monday, why don’t you just tell us what really happened so we can clear this all up and you can go home?”

Now, some people may have the sense to just shut up, but *most* people, especially people who have never been in trouble before, are going to trust the police, try and clear things up, and run their mouths from here to kingdom come. It’s human nature to want the police to like you, to not see you as a “bad guy”. Nobody wants to coddle criminals, but this law is fundamental for everyone. Repealing this law takes away a *huge* protection, and don’t think it could never happen to you or anyone you care about. People are falsely accused every single day, either thru malicious intent or just the simple fact that sometimes the police (gasp) get it wrong. This is not a judgement against them, just a statement of fact.

The fact that this ultra-liberal administration is looking to drop a law that surely has protected many people in the “Obama demographic”, and the fact that Obama himself (Himself???) has complained many times that current laws lead to discrimination and too many people being locked up who shouldn’t be (drug dealers, users, etc.) makes me wonder what the ulterior motive is.

Boudica on April 25, 2009 at 3:24 PM

Where in the Constitution does it say you’re not allowed to murder anybody?

Proud Rino on April 25, 2009 at 12:06 PM

Ok, I’m no lawyer, or constitutional expert, but here’s my take. lol You have the right to life, liberty, and the pursuit, of happiness. If I were to strip someone of their life….by murdering them, I violated their rights. That in, and of itself, would be criminal. Does that work?

capejasmine on April 25, 2009 at 12:09 PM

The Constitution is not the sole source of law in the United States.

cadetwithchips2 on April 25, 2009 at 3:46 PM

The primary purpose of the Constitution was to draw a line between the powers of the Federal Gov’t, State Gov’ts, and the rights of the people.

A document as short as the constitution cannot embody all necessary laws nowadays, but it’s a good starting point for the laws.

Chaz706 on April 25, 2009 at 3:47 PM

. If you invoke your right to an attorney, they will bring in an attorney to tell you not to say anything, which is a waste of both time and money.

Proud Rino on April 25, 2009 at 12:20 PM

Why not just deny defendants the right to a defense, if Time and Money are the sole concern in the legal proceedings?

cadetwithchips2 on April 25, 2009 at 3:51 PM

Why not just deny defendants the right to a defense, if Time and Money are the sole concern in the legal proceedings?

cadetwithchips2 on April 25, 2009 at 3:51 PM

Who said it was the sole concern?

Proud Rino on April 25, 2009 at 3:56 PM

There’s your phonecall pal.

Read it and weep.

Chaz706 on April 25, 2009 at 2:35 PM

I am weeping with laughter. Doesn’t say anything about a phone call in there. I think every state has statutes that provide for communication to make reasonable arrangements after your arrest, but it’s hardly a constitutional rule that you have to have a phone call.

Proud Rino on April 25, 2009 at 4:03 PM

Among other things, establishing an account of record to use if/should/might’nt the police take it upon themselves to change anything…i.e., edit, cut, splice or otherwise play with notes, videos, audio tapes, evidence. Not that that ever happens in real life, of course.

An account of record? If that were the law, they’d require a magistrate in every interrogation room. They don’t Most states don’t require videotapes at all. If the police did edit, you would be allowed to have a copy of the original tape – it’d probably be inadmissible otherwise. Not that police have much incentive to do that, honestly. They’d risk losing the case and going to jail themselves. Why would they risk it?

At any rate, you don’t need a lawyer present for any of that.

Another would be to have an attorney present as early as possible to examine on what basis the arrest was/may have been made, with an eye toward building a pro-active defense, and this would include technical details as well as legalisms of which the average American would be totally unaware.

Well, yes, obviously the sooner a lawyer is present, the better it is for the defendant. But the defendant is going to find out what the prosecution has in terms of evidence – this isn’t a Kafka novel, this is the United States.

In terms of police interrogation, all a lawyer is going to say is, “We’re not talking to you.” Period. That’s it.

I honestly thought you were going to say plea bargaining, but kudos for you for knowing not to.

Proud Rino on April 25, 2009 at 4:08 PM

Would the right to an attorney be implied, by the miranda rights?

You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.

The only way to call your attorney, would be via a phone call? Perhaps that’s a right implied, by the right to have counsel.

capejasmine on April 25, 2009 at 4:17 PM

Would the right to an attorney be implied, by the miranda rights?

You have the right to an attorney in the Constitution. Miranda explicitly allows you to invoke that right, but all that means is that they’re supposed to stop questioning you.

The only way to call your attorney, would be via a phone call? Perhaps that’s a right implied, by the right to have counsel.

capejasmine on April 25, 2009 at 4:17 PM

Yeah, and you’re going to want to get in touch with someone to bail you out, etc etc. All states have a way for you to get in contact with people, and I think most provide you with a few phone calls in reasonably quick amount of time.

The issue would be if a state took away that right, if that violated due process or something – my guess is that it probably would. You would have to have some means of communication. But, to my knowledge, there is no constitutional right to a phone call. Nothing in Miranda says, “You have a right to a couple of phone calls,’ you know?

Proud Rino on April 25, 2009 at 4:24 PM

The bottom line is that, if you get arrested say nothing except, “I want a lawyer.” And that’s all you say.

Something like 80% of people arrested don’t do that. It’s really amazing. But I think if Miranda were too effective it’d be overturned – getting confessions from dumb criminals is one of the best and easiest ways police can get convictions. If they had to rely on some crazy DNA stuff every time, they’d never convict anybody of anything.

Proud Rino on April 25, 2009 at 4:27 PM

PR, criminals being for the most part stupid is the only thing between us and chaos. Modern forensic science helps close the gap, but if people weren’t so stupid (most often involving opening their yap to brag), they would run amok. Of course, we can make the case that if they weren’t so stupid, they’d be finding other ways to get by. As for the phone call, yeah, no strict Constitutional right to a call, didn’t exist in that day, and to my knowledge, there’s been no ruling on the matter. In the old days, a letter or sending a deputy out to contact someone was the only method. Nowadays, the phone is there, and if the authorities made you write a letter, that would likely be shot down for timeliness.

bikermailman on April 25, 2009 at 5:46 PM

NathanG,

You still cannot read accurately! I’ll say it again, I hope I live long enough to dance in glee at the communist in chief’s death. I say this because the rat bastard is younger than I and I actually love this country and the big 0 hates it.

When I die I want this country to be as free as it was when I was a child. And this prick is making it impossible for today’s children to be as free as I was when I was a child.

As far as I’m concerned FREEDOM is more important than any elected leader’s life. Don’t forget that Hitler was elected also, you moron!

calguyintexas on April 25, 2009 at 11:44 AM

Wow, somebody woke up on the wrong side of the bed today. What I meant is that even if we don’t agree with everything (or in your case anything apparently) Obama says or does, at least he’s our AMERICAN president who was elected by the public, unlike say Kim Jong-il or Saddam Hussein. I would wish death on all of them. In fact, while I wouldn’t wish death on Chavez, I would prefer permanent crippling. The guy’s a p.o.s. Also, I knew Hitler was democratically elected. I might be dense, but I’m not that dense.

NathanG on April 25, 2009 at 6:00 PM

Where in the Constitution does it say you’re entitled to a phone call?

Proud Rino on April 25, 2009 at 12:02 PMZ

The Sixth Amendment to the Constitution of the United States of America

unclesmrgol on April 25, 2009 at 6:04 PM

Proud Rino on April 25, 2009 at 3:56 PM
Proud Rino on April 25, 2009 at 4:03 PM
Proud Rino on April 25, 2009 at 4:08 PM
Proud Rino on April 25, 2009 at 4:24 PM
Proud Rino on April 25, 2009 at 4:27 PM

So when, exactly, are these guys supposed to be getting their own page on this blog?

I remember AP saying that a while back, but maybe he ought to try lighting a fire under whoever does the coding around here.

logis on April 25, 2009 at 6:17 PM

Uncle, the Constitution in and of itself of course cannot say that, as it was written 100 years before the phone. The beauty of the Constitution is not that it is ‘living and breathing’ (meaning whatever people say it means at the moment) but that basic rights are inherent, and judicial rulings can adapt those rights as technology evolves. Rino is being kind of contrary, but he (I assume) has the point. Back in the day when LGF was worth a crap, there was a guy there similar to PR. Only he was right more often. He aggrivated people a lot with his style, but he did make good points often.

bikermailman on April 25, 2009 at 6:25 PM

This is shocking.

CP on April 25, 2009 at 7:11 PM

Ed,

I don’t think the brief is arguing what you think it’s arguing. More here.

Patterico on April 25, 2009 at 7:19 PM

A while back the Supreme Court rule it was ok for the police to lie to a suspect while interrogating him. A lawyer is always needed when dealing with the authorities. The average person doesn’t understand the law or the system well enough to handle it on their own.

Yep. That can only be fair IF the accused has representation. Honestly I think that the police shouldn’t be allowed to lie, because I think that is just as much obstruction of justice as an accused lying to them, if not more so.

Really, I think the government has more of an obligation to be truthful than do citizens..

Obviously this is being set up to help Dear Leader with the upcoming trials of anyone who doesn’t believe in Hope and Change.

wildcat84 on April 25, 2009 at 7:23 PM

Looks like Barry is hoping to fit in with his new crop of friends: Chavez, Castro, Ahmadinejad…

redfoxbluestate on April 25, 2009 at 7:26 PM

Of course he is. But is anyone really dumb enough to think that the ONLY part of the Constitution Obama will respect is the part about the length of a Presidential term?

logis on April 25, 2009 at 1:50 PM

Remember in the dispute of Bush vs Gore over Flori-DUH that the Clinton camp actually seriously was suggesting that Willy remain in office past the end of his term if it wasn’t resolved?

Of course, I don’t think that 3 years from now after what Dear Leader has done sets in that the election if the GOP candidate is even convincingly token conservative will be remotely close. You don’t win re-election by making the economy worse, encouraging and probably GETTING a foreign attack on US soil, and by raising taxes thus increasing misery.

wildcat84 on April 25, 2009 at 7:32 PM

people you are misiing the point. Obama is going to war with the lawyers. Just another group of people that voted for Obama that will have buyers remorse. If this is granted a lot of lawyers will be out of work. Or lose alot of money. Think of all the confessions the police can get. What need of a lawyer at a trail if the defendent has already confessed? Lawyers should be pissed off right about now with Obama.

Yes, but what loyal lapdog constituency HASN’T the democrat party failed to betray?

The civil right establishment had to sit back and watch black after black denied positions of power and even watch the establishment run a subtly racist campaign against Obama… Hillary was the anointed one.

FemiNazis have had to suffer with a party that condones misconduct by high officials (like Clinton) and even come out and trash women who accuse him of rape and harassment…

Unions keep supporting them despite the fact that democrat policies, such as supporting the global warming hoax is completely contrary to their worker’s interest as environmentalism has all but destroyed US industry…

So, trial lawyers, it’s your turn.

Sure, you all contribute tons of your ill gotten gains to the democrats, but so what? What are you going to do… Vote REPUBLICAN?

wildcat84 on April 25, 2009 at 7:40 PM

Where in the Constitution does it say you’re not allowed to murder anybody?

Proud Rino on April 25, 2009 at 12:06 PM

How about Amendment 10: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Murder is a state crime not a federal crime.

Dasher on April 25, 2009 at 7:51 PM

Look at the photo of him…. is he growing a hitler mustache? Just wondering.

suzyk on April 25, 2009 at 8:09 PM

HHHMMMMMMMMMMMM! No one knows the messiah’s grades at Harvard. Could it be he flunked? For all his acclaimed brilliance he seems to screw up a lot.

Herb on April 25, 2009 at 9:49 PM

I am weeping with laughter. Doesn’t say anything about a phone call in there. I think every state has statutes that provide for communication to make reasonable arrangements after your arrest, but it’s hardly a constitutional rule that you have to have a phone call.

Proud Rino on April 25, 2009 at 4:03 PM

Well aren’t you the wordsmith. Are you some two bit lawyer?
Just how does one get a hold of an attorney? Smoke signals, two cans and a string, or maybe morse code.

Jamson64 on April 25, 2009 at 10:07 PM

Simple reasoning here. When they start rounding up uppity conservatives the numbers will be so vast that having to provide legal representation will be unsupportable.

FireBlogger on April 25, 2009 at 12:53 PM

I seem to recall that Bill Ayers said that something like 25 million would have to be snuffed.

Dasher on April 25, 2009 at 11:33 PM

Just keep in mind, other than the few who read non-liberal blogs, most young people believe that “From each according to his ability, to each according to his need”…

So its no leap to realize most teens and twenty-somethings will think this and all other moves made by our ex-Presidency, now Regime, a good thing.

I know you all just can’t wait for the soon to come, breaking story, hotly debated, wherein the Regime makes itself permanent… to the cheers and accolades of youth.

Friendly21 on April 26, 2009 at 10:09 AM

Night of the long knives is coming. Prepeare.

faol on April 26, 2009 at 10:20 AM

Night of the long knives is coming. Prepeare.
faol on April 26, 2009 at 10:20 AM

Historically, I think that only applies if you are a Regime supporter and gay…

Friendly21 on April 26, 2009 at 10:24 AM

Where in the Constitution does it say you’re not allowed to murder anybody?

Proud Rino on April 25, 2009 at 12:06 PM

My guess would be the preamble….establish justice…insure domestic tranquility…provide for the common welfare. I’m pretty sure these would exclude a right to murder, but I’m just a truck driver…I could be wrong.

Paco on April 26, 2009 at 2:21 PM

Uncle, the Constitution in and of itself of course cannot say that, as it was written 100 years before the phone. The beauty of the Constitution is not that it is ‘living and breathing’ (meaning whatever people say it means at the moment) but that basic rights are inherent, and judicial rulings can adapt those rights as technology evolves. Rino is being kind of contrary, but he (I assume) has the point. Back in the day when LGF was worth a crap, there was a guy there similar to PR. Only he was right more often. He aggrivated people a lot with his style, but he did make good points often.

bikermailman on April 25, 2009 at 6:25 PM

What did he mean by “use the phone”? I interpret that as “contact a lawyer”, which is the first step to obtaining a competent defense. You are welcome to go on about how phones and the Internet and all that weren’t around when the Constitution was framed, but you are nattering much about nothing. Our interpretation of the Constitution has expanded to cover those advances — to the point where the telephone is covered by expectations of privacy and security in our effects and the Internet by the press freedoms.

unclesmrgol on April 26, 2009 at 10:43 PM

I skipped this read several times. I, too, thought this was about terrorists. I didn’t think it was that important. Then I caught it on another site and came back and read this again!
Unbelievable! Freaking unbelievable!
This guy hates Americans. He hates our constitution.
He loves terrorists.
Just incredible.
And no Republicans again?? What do they do all day?? Media?? Freaking joke!!

JellyToast on April 26, 2009 at 11:08 PM

Michigan v Jackson is a right due U.S. citizens. This does not apply to anyone else, especially accused terrorists plucked from the battlefield or an intelligence operation overseas.

paulsur on April 26, 2009 at 11:46 PM

Quoting myself from two other posts (from memory):

Obama has been systematically destroying every economic and political structure in our nation, in order to replace them with his own, more authoritarian, structures.

Funny, I usually feel good when I’m proven right…

RegularJoe on April 27, 2009 at 8:45 AM

Now you may want to argue — as the ACLU does — that once a defendant has counsel, he may not shed it, whether he likes it or not. (This was the holding in Michigan v. Jackson.) But let’s not misrepresent the views of the Obama Administration or of the several states.

paul006 on April 25, 2009 at 12:29 PM

It’s sort of amazing how many people fail to understand the simple point you and Proud Rino are making, and keep batting away at strawmen.

Unlike Ed, you both appear to have bothered to read the actual brief. Heck, even Patterico gets it right.

I do give Ed credit for qualifying the heading with a Cavuto mark, though.

skylark on April 27, 2009 at 6:26 PM

Ed, whats it like living in a alternate universe, where EVERYTHING OBAMA SAYS OR DOES IS WRONG? Your side cries wolf so often that nobody would pay attention to you, even if you had a legitimate beef. You are now officially in the political wilderness. I scour the news wires and saw no mention of your so called story, what gives?

athensboy on April 27, 2009 at 8:41 PM

And the question here is not, as Ed asserts, whether the police are required to provide a lawyer to a criminal defendant once the defendant has requested one. Nobody denies that. Rather, the question is: May the defendant subsequently waive his right to counsel?

I read the argument and it makes sense to me. I’m old enough to remember how pissed conservatives were when the courts started layering on all these extra procedural “rights” to supplement the Constitution. The fact is repealing Jackson doesn’t mean the Gestapo will coerce you into kicking out your lawyer and then beat a confession out of you.

Let’s get real people. This is actually a good thing. Even if the DOJ gets their way on this the citizen can ask for a lawyer any time they want and get one. This simply grants a citizen the right to waive counsel if and when they wish.

Simpler laws are better laws. I give Obama’s DOJ a star on this one. Ed would be more consistent as a conservative by acknowledging the administration ignored the ACLU in seeking to streamline the legal process and reduce unnecessary expenses.

rcl on April 28, 2009 at 6:59 AM

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