Obama Admininistration Seeks to Kill Right to an Attorney

[Kamakazie Sith]

The phrase "Seeks to Kill Right to an Attorney" was hyperbole, I didn't actually mean I thought the DOJ want's to get rid of defense attorneys completely. The issue is that if their request goes through, the police will allowed to interrogate a suspect regardless of whether he asks for an attorney, so the right may as well not exist for the first few hours in police custody since it makes no difference to how the police are allowed to treat him. There are numerous examples of what happens when someone doesn't get that right, or gets tricked into waiving it:

I think you're reading into this decision far too much. There's nothing in the articles that you've provided which states that police will be allowed to treat a suspect however they please. It just means that whatever you say can and will be used against you in court.

[Dominus Atheos]

The phrase "Seeks to Kill Right to an Attorney" was hyperbole, I didn't actually mean I thought the DOJ want's to get rid of defense attorneys completely. The issue is that if their request goes through, the police will allowed to interrogate a suspect regardless of whether he asks for an attorney, so the right may as well not exist for the first few hours in police custody since it makes no difference to how the police are allowed to treat him. There are numerous examples of what happens when someone doesn't get that right, or gets tricked into waiving it:

I think you're reading into this decision far too much. There's nothing in the articles that you've provided which states that police will be allowed to treat a suspect however they please. It just means that whatever you say can and will be used against you in court.

Maybe I am misinterpreting this, but from the ruling in Michigan v. Jackson, the case the DOJ is trying to get overturned...

Respondents, at separate arraignments in a Michigan trial court on unrelated murder charges, each requested appointment of counsel. But before respondents had an opportunity to consult with counsel, police officers, after advising respondents of their Miranda rights, questioned them and obtained confessions. Both respondents were convicted over objections to the admission of the confessions in evidence. The Michigan Court of Appeals reversed and remanded in one case, but affirmed in the other. The Michigan Supreme Court considered both cases together, and held that the confessions were improperly obtained in violation of the Sixth Amendment.

Held: The confessions should have been suppressed. Although the rule of Edwards v. Arizona, 451 U. S. 477, that once a suspect has invoked his right to counsel, police may not initiate interrogation until counsel has been made available to the suspect, rested on the Fifth Amendment and concerned a request for counsel made during custodial interrogation, the reasoning of that case applies with even greater force to these cases. The assertion of the right to counsel is no less significant, and the need for additional safeguards no less clear, when that assertion is made at an arraignment and when the basis for it is the Sixth Amendment. If police initiate an interrogation after a defendant's assertion of his right to counsel at an arraignment or similar proceeding, as in these cases, any waiver of that right for that police-initiated interrogation is invalid. Pp. 475 U. S. 629-635.

421 Mich. 39, 365 N.W.2d 56, affirmed.

STEVENS, J., delivered the opinion of the Court in which BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. BURGER, C.J., filed an opinion concurring in the judgment, post, p. 475 U. S. 636. REHNQUIST, J., filed a dissenting opinion, in which POWELL and O'CONNOR, JJ., joined, post, p. 475 U. S. 637.

Page 475 U. S. 626

JUSTICE STEVENS delivered the opinion of the Court.

In Edwards v. Arizona, 451 U. S. 477 (1981), we held that an accused person in custody who has

"expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."

Id. at 451 U. S. 484-485. In Solem v. Stumes, 465 U. S. 638 (1984), we reiterated that "Edwards established a bright-line rule to safeguard preexisting rights," id. at 465 U. S. 646: "once a suspect has invoked the right to counsel, any subsequent conversation must be initiated by him." Id. at 465 U. S. 641.

The question presented by these two cases is whether the same rule applies to a defendant who has been formally charged with a crime and who has requested appointment of counsel at his arraignment. In both cases, the Michigan Supreme Court held that postarraignment confessions were improperly obtained -- and the Sixth Amendment violated -- because the defendants had

"requested counsel during their arraignments, but were not afforded an opportunity to consult with counsel before the police initiated further interrogations."

421 Mich. 39, 67-68, 365 N.W.2d 56, 69 (1984). We agree with that holding.

...it sounds like currently once a suspect asks for an attorney, the police aren't allowed to question him until one arrives unless he initiates it. If the DOJ is trying to overturn that, what else can it mean except that they want to question suspects without an attorney present?

[Kamakazie Sith]

...it sounds like currently once a suspect asks for an attorney, the police aren't allowed to question him until one arrives unless he initiates it. If the DOJ is trying to overturn that, what else can it mean except that they want to question suspects without an attorney present?

That's correct.

Dominius, at first it seemed like you were suggesting they were trying to change the law so that police could prevent a subject from obtaining counsel. Then you clarified but stated that this law would allow the police to treat the subject however they wished...again not so. Now you've clarified your position again.

Yes, this change is trying to make it legal for the police to still be able to question you even if you've requested an attorney. It does not mean any answers obtain via threats, force, etc are going to be legal. It just means that if you're being questioned by the police you probably should actually exercise your right to remain silent.

It is ridiculous that guilty persons were able to go free because their arrest was based off a confession which an officer obtained because he forgot to read a subject their miranda rights. It's not the police officers fault that most criminals are fucking idiots.

[Flagg]

The police shouldn't be able to continue to interrogate you after you've invoked your right to an attorney because it defeats the entire purpose of having an attorney present during questioning. If the police are too stupid not to leave the room once the right is invoked then it's on them if they manage to get a confession and it's inadmissible.

Now if a suspect spontaneously confesses to something without prompting, that's a different story. Of course this can be abused, but that's why all interrogations should be videotaped.

[General Zod]

The police shouldn't be able to continue to interrogate you after you've invoked your right to an attorney because it defeats the entire purpose of having an attorney present during questioning. If the police are too stupid not to leave the room once the right is invoked then it's on them if they manage to get a confession and it's inadmissible.

Now if a suspect spontaneously confesses to something without prompting, that's a different story. Of course this can be abused, but that's why all interrogations should be videotaped.

That's rather the point, really. If a suspect confesses even after he invokes his right to an attorney, treating the confession as inadmissible is stupid if it was truly unprompted. Having the police in the room doesn't seem enough to consider it prompted imo., but this is again why the interrogations should be videotaped.

[Flagg]

The police shouldn't be able to continue to interrogate you after you've invoked your right to an attorney because it defeats the entire purpose of having an attorney present during questioning. If the police are too stupid not to leave the room once the right is invoked then it's on them if they manage to get a confession and it's inadmissible.

Now if a suspect spontaneously confesses to something without prompting, that's a different story. Of course this can be abused, but that's why all interrogations should be videotaped.

That's rather the point, really. If a suspect confesses even after he invokes his right to an attorney, treating the confession as inadmissible is stupid if it was truly unprompted. Having the police in the room doesn't seem enough to consider it prompted imo., but this is again why the interrogations should be videotaped.

Well, I say leave the room just because that's the easiest thing to do and removes the temptation to continue asking questions. Sitting there staring at them in silence would also be perfectly acceptable.

[Kamakazie Sith]

The police shouldn't be able to continue to interrogate you after you've invoked your right to an attorney because it defeats the entire purpose of having an attorney present during questioning. If the police are too stupid not to leave the room once the right is invoked then it's on them if they manage to get a confession and it's inadmissible.

Now if a suspect spontaneously confesses to something without prompting, that's a different story. Of course this can be abused, but that's why all interrogations should be videotaped.

I completely agree. If a person requests an attorney all questioning should cease immediately.

[Terralthra]

Yes, this change is trying to make it legal for the police to still be able to question you even if you've requested an attorney. It does not mean any answers obtain via threats, force, etc are going to be legal. It just means that if you're being questioned by the police you probably should actually exercise your right to remain silent.

The key point, as the DoJ points out, is that you are not obligated to answer any question the police ask you. You can say "I'd like to speak to a lawyer," and at that point, the police must summon one. From that point onward, you are free to respond to each and every potential question the police ask with, "I'm not answering any more questions until my lawyer gets here." If the suspect asks for a lawyer and then continues to answer questions before the lawyer gets there, he or she was obviously not actually listening when the Miranda rights were read.

I've asked you once before, and you ignored my question, so I'll ask again, Dominus Atheos:

Should this particular criminal's unprompted confession and subsequent self-implication by directing the police to the murder weapon be thrown out because it was delivered after he asked for a lawyer, then changed his mind? Keep in mind that in this case, that would effectively mean letting a confessed murderer go free.

[Dominus Atheos]

...it sounds like currently once a suspect asks for an attorney, the police aren't allowed to question him until one arrives unless he initiates it. If the DOJ is trying to overturn that, what else can it mean except that they want to question suspects without an attorney present?

That's correct.

Dominius, at first it seemed like you were suggesting they were trying to change the law so that police could prevent a subject from obtaining counsel. Then you clarified but stated that this law would allow the police to treat the subject however they wished...again not so. Now you've clarified your position again.

In my view, interrogating someone who requests their attorney without the attorney present is the same (or at least has the same result) as denying someone their attorney.

Yes, this change is trying to make it legal for the police to still be able to question you even if you've requested an attorney. It does not mean any answers obtain via threats, force, etc are going to be legal. It just means that if you're being questioned by the police you probably should actually exercise your right to remain silent.

What is going to count as a threat? Would it be legal to tell the suspect he may be facing the death penalty if it goes to trial, but the judge will probably be more lenient if he confesses since that's probably true?

It is ridiculous that guilty persons were able to go free because their arrest was based off a confession which an officer obtained because he forgot to read a subject their miranda rights. It's not the police officers fault that most criminals are fucking idiots.

The reason the courts have ruled things like that is because there have been a lot of abuse of the system that results in innocent people going to jail.

[Big Phil]

I mean, we already knew that Obama rejects the rule of law and supports a two-tiered justice system,

What exactly is your evidence to support this assertion?

but I don't think anyone thought he'd go this far. Although I suppose we probably should have. Once someone demonstrates the level of contempt for the rule of law that Obama has, pretty much anything is possible. I expect pretty soon he'll start writing Bills of Attainder and General Warrants.

And this? I mean, other than your opinion and wildly exaggerated blogs written by douchebags.

Should I take your lack of response to this post (despite your half dozen more recent posts in this thread) a concession on your part that your claims are baseless?

[Patrick Degan]

but I don't think anyone thought he'd go this far. Although I suppose we probably should have. Once someone demonstrates the level of contempt for the rule of law that Obama has, pretty much anything is possible. I expect pretty soon he'll start writing Bills of Attainder and General Warrants.

Evidence for this assertion, if you please.

[Kamakazie Sith]

In my view, interrogating someone who requests their attorney without the attorney present is the same (or at least has the same result) as denying someone their attorney.

Your view is not reality then because those two situations are entirely different.

What is going to count as a threat? Would it be legal to tell the suspect he may be facing the death penalty if it goes to trial, but the judge will probably be more lenient if he confesses since that's probably true?

That would be coercion and is illegal. Confessions obtained through force, threat, or coercion is inadmissible in court.

The reason the courts have ruled things like that is because there have been a lot of abuse of the system that results in innocent people going to jail.

I'm well aware of the reason.

[Julhelm]

That would be coercion and is illegal. Confessions obtained through force, threat, or coercion is inadmissible in court.

Shouldn't the aforementioned cases have been thrown out of court then? Or how does the court know if a given confession has been obtained through force or coercion?

[Kamakazie Sith]

Shouldn't the aforementioned cases have been thrown out of court then? Or how does the court know if a given confession has been obtained through force or coercion?

Which case are you referring to where coercion was shown to have occurred?

Only confessions of very serious crimes are required to be recorded. Confession obtained of lesser crimes are not required to be recorded. The courts assume that the police officer is not a criminal themself.

[Dominus Atheos]

I mean, we already knew that Obama rejects the rule of law and supports a two-tiered justice system,

What exactly is your evidence to support this assertion?

Habeas corpus, state secrets, supporting one standard of justice for most people and supporting another for political elites, and everything he's done to try to stop investigations into past Bush crimes including threatening to stop sharing intelligence with our closest ally if they release evidence that might increase support for investigations.

[Dominus Atheos]

Shouldn't the aforementioned cases have been thrown out of court then? Or how does the court know if a given confession has been obtained through force or coercion?

Which case are you referring to where coercion was shown to have occurred?

For example, Michael Crowe

Six years after being dismissed by Escondido police as a bungling prowler, Richard Tuite was convicted yesterday of stabbing to death 12-year-old Stephanie Crowe in her bedroom.

...

Escondido police concluded almost immediately that the killing was an inside job, despite 911 calls from Crowe neighbors frightened by Tuite in the hours before the stabbing. Police focused on Michael Crowe, then 14.

The teen, who was sick with a fever, was interrogated without his parents' knowledge and ultimately confessed after detectives lied to him about finding Stephanie's blood in his room and other evidence supposedly linking him to the killing. Crowe said he had no memory of the crime and provided no details.

His friends Treadway and Houser, both 15, were interrogated after Houser told police a knife was missing from a collection given to him by his grandfather. Treadway said he stole the knife days before the killing during a visit to Houser's house because he wanted to sketch it, and that he had kept it under his bed.

But when detectives lied to Treadway during his two interrogations, which lasted about 22 hours, saying they could prove the knife was used to kill Stephanie, he began telling a tale of conspiracy and murder.

Houser, meanwhile, denied any involvement in the slaying during his 10 hours of interrogation.

The police led about what evidence they had found to try to get confessions out of him and his friends, and I really doubt that they would have done that if there had been any chance of the judge throwing out the conviction.

[Big Phil]

I mean, we already knew that Obama rejects the rule of law and supports a two-tiered justice system,

What exactly is your evidence to support this assertion?

Habeas corpus, state secrets,

Don't use buzzwords and pretend they're evidence; explain yourself.

supporting one standard of justice for most people and supporting another for political elites, and everything he's done to try to stop investigations into past Bush crimes including threatening to stop sharing intelligence with our closest ally if they release evidence that might increase support for investigations.

Evidence? Explain how this proves he "rejects the rule of law and supports a two-tiered justice system"

[Dominus Atheos]

What exactly is your evidence to support this assertion?

Habeas corpus, state secrets,

Don't use buzzwords and pretend they're evidence; explain yourself.

What do you think I mean? He keeps fighting against allowing detainees in Bagram the right to a trial to determine if they actually did anything worthy of keeping them in there, and he keeps trying to have lawsuits brought against the Bush administration thrown out without even being heard by claiming that the lawsuits might hamper the governments ability to spy on our citizens. (which is actually the point of the lawsuits)

supporting one standard of justice for most people and supporting another for political elites, and everything he's done to try to stop investigations into past Bush crimes including threatening to stop sharing intelligence with our closest ally if they release evidence that might increase support for investigations.

Evidence? Explain how this proves he "rejects the rule of law and supports a two-tiered justice system"

Link, and the rule of law/two-tiered justice system criticism comes from his repeated insistence that no one from the Bush administration should be prosecuted for warrantless wiretapping, lying us into a war, torture, and everything else he did. If any normal person were to torture someone, even after getting an ambulance-chaser to tell them it was okay, they'd go to jail. And since he's refusing to prosecute, we just might as well not have those laws.

[Kamakazie Sith]

The police led about what evidence they had found to try to get confessions out of him and his friends, and I really doubt that they would have done that if there had been any chance of the judge throwing out the conviction.

While coercion may have been present in these interrogations lying is not illegal. Police can lie to a subject regarding evidence and other information.

EDIT - I want to add once illegal actions are uncovered the case is thrown out. The question I was responding to which you responded to seemed to indicate there was a case where it was found the subject was threatened, forced, etc to give a confession and this confession is still valid despite it being illegally obtained.

[Big Phil]

Habeas corpus, state secrets,

Don't use buzzwords and pretend they're evidence; explain yourself.

What do you think I mean? He keeps fighting against allowing detainees in Bagram the right to a trial to determine if they actually did anything worthy of keeping them in there, and he keeps trying to have lawsuits brought against the Bush administration thrown out without even being heard by claiming that the lawsuits might hamper the governments ability to spy on our citizens. (which is actually the point of the lawsuits)

So treating foreign nationals as if they have no rights = suspending habeus corpus and effectively declaring himself dictator? Unlike Bush, Obama has not claimed he can suspend habeus corpus, apprehend Americans without due process, and otherwise ride roughshod over the Constitution.

With regard to the lawsuits, the fact that they're being fought in court, by the current Justice Department, would seem to destroy your assertion that Obama "rejects the rule of law," don't you think? He could simply tell the Justice Department to ignore the lawsuits and claim Executive Privilege. Isn't that what Bush did, after all?

supporting one standard of justice for most people and supporting another for political elites, and everything he's done to try to stop investigations into past Bush crimes including threatening to stop sharing intelligence with our closest ally if they release evidence that might increase support for investigations.

Evidence? Explain how this proves he "rejects the rule of law and supports a two-tiered justice system"

Link, and the rule of law/two-tiered justice system criticism comes from his repeated insistence that no one from the Bush administration should be prosecuted for warrantless wiretapping, lying us into a war, torture, and everything else he did. If any normal person were to torture someone, even after getting an ambulance-chaser to tell them it was okay, they'd go to jail. And since he's refusing to prosecute, we just might as well not have those laws.

Did you even read your own article? The Bush administration make the threat, and Obama had only been in office two weeks at the time of the article. Do you know whether he'd even reviewed the threat from the Bush lackeys?

With regard to your two-tiered justice assertion, he's asserted that he won't prosecute the folks who carried out orders that were (dubiously) legal at the time they did them. Would you prefer that he prosecute lowly CIA officials and allow Bush, Cheney, and company to get off scot free? He's repeatedly said it's time to move on and stop dwelling on the past. While I don't agree with that position, it's hardly proof of "supports a two-tiered justice system."

http://www.mediamouse.org/news/2009/04/ ... orture.php

Tell you what, why don't you just concede that you're talking out of your ass right now, rather than continue to waste everyone's time?

[Kamakazie Sith]

Maybe this makes me sound like an asshole but I think Obama has more important things to worry about than investigating the previous administration. While it should be done it should come after the current crisis has recovered and perhaps other more important things are taken care of.

[Patrick Degan]

With regard to your two-tiered justice assertion, he's asserted that he won't prosecute the folks who carried out orders that were (dubiously) legal at the time they did them. Would you prefer that he prosecute lowly CIA officials and allow Bush, Cheney, and company to get off scot free? He's repeatedly said it's time to move on and stop dwelling on the past. While I don't agree with that position, it's hardly proof of "supports a two-tiered justice system."

There is also the fact that Obama came out and said publicly that, while he's not inclined to prosecute CIA operatives for carrying out orders they were told was legal, he has no problem with the eventual investigation and prosecution of lawyers and officials who twisted legal definitions into Moebius strips to authorise torture.

[General Zod]

With regard to your two-tiered justice assertion, he's asserted that he won't prosecute the folks who carried out orders that were (dubiously) legal at the time they did them. Would you prefer that he prosecute lowly CIA officials and allow Bush, Cheney, and company to get off scot free? He's repeatedly said it's time to move on and stop dwelling on the past. While I don't agree with that position, it's hardly proof of "supports a two-tiered justice system."

There is also the fact that Obama came out and said publicly that, while he's not inclined to prosecute CIA operatives for carrying out orders they were told was legal, he has no problem with the eventual investigation and prosecution of lawyers and officials who twisted legal definitions into Moebius strips to authorise torture.

It's a lot like the police greasing low-end drug dealers and letting them off the hook in order to get to the manufacturers. Nobody generally complains about that sort of thing.

[Tiriol]

Don't use buzzwords and pretend they're evidence; explain yourself.

What do you think I mean? He keeps fighting against allowing detainees in Bagram the right to a trial to determine if they actually did anything worthy of keeping them in there, and he keeps trying to have lawsuits brought against the Bush administration thrown out without even being heard by claiming that the lawsuits might hamper the governments ability to spy on our citizens. (which is actually the point of the lawsuits)

So treating foreign nationals as if they have no rights = suspending habeus corpus and effectively declaring himself dictator? Unlike Bush, Obama has not claimed he can suspend habeus corpus, apprehend Americans without due process, and otherwise ride roughshod over the Constitution.

Just to point out, as a foreign national myself, I would be extremely suspicious of any foreign President or nation that would treat the citizens of other countries as they actually had no rights. So far as I am aware, the US Constitution guarantees certain rights to EVERYONE under its jurisdiction, not just to US citizens (in a same way the Finnish and the EU Constitutions do, although these two are known to guarantee many rights to non-citizens that others wouldn't).

And although it loathes me to point out, you can't just pick and choose: if Obama suspends habeas corpus from foreigners but not US citizens, then he HAS suspended that right from many people (although in this case he hasn't done so, but rather the previous administration did). While he is the President of the United States, not of the world, and thus responsible for the US citizens, we cannot pretend that other nationalities don't "count".

[Darth Wong]

Let's make no mistake: Obama's human rights record so far is a disappointment. Having said that, it's still far superior to Bush's human rights record. And let's be realistic: he is a democratically elected president and he has to listen to what the American people want.