Prelude to Montejo
I skimmed over Montejo v. Louisiana when it was released in May of this year, and did not take the time to read it and study it. That was a mistake - this is a must-read opinion that can and probably will change the practice of investigations and of criminal defense. Others have blogged about it and dissected it already, and back then Scott Greenfield pointed out that the case reinforces and makes even more important the directive that many of our clients ignore before retaining counsel: "The first thing out of your mouth is 'I want to speak with my lawyer.' Then shut up."
I was forced to take a look at Montejo when I discovered that a U.S. marshal, along with an unidentified SLED agent, had interviewed one of my clients at J. Reuben Long detention center a few days ago with no notice to myself, although I have been her attorney for approximately six months now and there is no question that she had invoked her right to counsel. I doubt that the marshal has heard of Montejo or reads appellate court opinions, but when I told other defense lawyers what he had done, their response was to read Montejo, which I did.
More on Montejo later. When I spoke with the marshal, he explained why there was nothing wrong with him and a SLED agent questioning my client:
1) It was ok, because he was only asking questions about her co-defendant who he is attempting to locate, and was not asking anything about her case. (Do I need to explain why questions about someone's co-defendant are exactly questions about that person's case?)
2) It was ok, because she waived her rights and signed a Miranda waiver form before he questioned her. (My response was it is not ok, because you do not approach my client and seek a waiver of her rights after she has invoked her right to counsel)
3) It was ok, because this is the way he has always done it and no-one has ever told him anything different. (My response was: the fact that you have been breaking the law for your entire career does not make it ok to break the law)
The truth is, if the marshal and SLED were looking for this individual that has disappeared off the grid, in this particular case we probably would not have had a problem with providing information to assist. He did not ask - instead he waltzed into the county jail and interrogated my client without my knowledge. Worse, he professes that he is not only unconcerned with my client's Sixth Amendment right to counsel, but that this is how he always does it.
I have been told that my client, when taken into the interrogation room, told them that she had a lawyer and did not want to speak with them. That they told her it was ok to talk with them, because they were only asking about the co-defendant. That it was ok to talk with them, because it would help her case. And that it was ok to talk with them, because I was a court-appointed lawyer who probably would not even come to see her for six months anyway.
I can't independently verify what was said, because I was not there. This is the danger of questioning a defendant outside of the presence of their attorney once they have asserted their right to counsel - unless there is a recording made, there are no witnesses. If a recording is made, the record button is not pressed until after the person has been persuaded to speak. What do you suppose happens when a case gets to court and the defendant says, "I told the officer I wanted my lawyer, but he kept after me," and the officer says, "No, she never said she wanted her lawyer?"
I was court-appointed to this particular case. That changes nothing regarding how I represent my client. We have visited this client three times in past 4 or 5 months, and have a regular correspondence with her. We care about this case no less than if she had paid a $20,000 fee. The part of the story where the interviewer essentially tells the defendant "trust me, because your court-appointed lawyer doesn't care about you," if that is what was said, would be the worst lie that was told to her in that meeting.
Edit: removed the marshal's name from the post.
