Montejo v. Louisiana

556 U.S. 778

Case Year: 2009

Case Ruling: 5-4

Opinion Justice: Scalia

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Alito, Kennedy, Roberts, Thomas


1st Concurring Opinion

Author: Alito

Joiner(s): Kennedy

1st Dissenting Opinion

Author: Stevens

Joiner(s): Souter, Ginsburg, Breyer

2nd Concurring Opinion



2nd Dissenting Opinion

Author: Breyer


3rd Concurring Opinion



3rd Dissenting Opinion



Other Concurring Opinions:


On September 6, 2002, Jesse Montejo was arrested and charged with the robbery and murder of Lewis Ferrari. Initial police suspicion rested with Jerry Moore, a disgruntled former employee of Ferrari's. Through their investigation, the police sought to question Montejo who was a known associate of Moore's. At his interrogation, Montejo repeatedly changed his account of the crime and eventually admitted to shooting Ferrari during an attempted burglary. He had waived his Miranda rights before confessing.

On September 10, Montejo was brought before a judge for a preliminary hearing, where he was charged with first-degree murder. The judge appointed an attorney to represent him. Later that same day, before Montejo met with his court-appointed attorney, two police officers escorted him to locate the alleged murder weapon. During this excursion, Montejo was again read his Miranda rights, and he wrote a letter of apology to the victim's widow. Only upon his return did Montejo first meet his court-appointed attorney.

At trial, Montejo's letter of apology was admitted into evidence. Montejo was subsequently convicted of first-degree murder and sentenced to death. After the Louisiana Supreme Court upheld the decision and sentence, the U.S. Supreme Court granted certiorari to determine the scope and continued viability of Michigan v. Jackson (1986), which forbade police-initiated interrogations once a criminal defendant requested counsel at an arraignment or similar proceeding.



Under the rule adopted by the Louisiana Supreme Court, a criminal defendant must request counsel, or otherwise "assert" his Sixth Amendment right at the preliminary hearing, before the Jackson protections are triggered. If he does so, the police may not initiate further interrogation in the absence of counsel. But if the court on its own appoints counsel, with the defendant taking no affirmative action to invoke his right to counsel, then police are free to initiate further interrogations provided that they first obtain an otherwise valid waiver by the defendant of his right to have counsel present.

This rule would apply well enough in States that require the indigent defendant formally to request counsel before any appointment is made, which usually occurs after the court has informed him that he will receive counsel if he asks for it. . . .

But many States follow other practices. In some two dozen, the appointment of counsel is automatic upon a finding of indigency, and in a number of others, appointment can be made either upon the defendant's request or sua sponte by the court. Nothing in our Jackson opinion indicates whether we were then aware that not all States require that a defendant affirmatively request counsel before one is appointed; and of course we had no occasion there to decide how the rule we announced would apply to these other States.

The Louisiana Supreme Court's answer to that unresolved question is troublesome. The central distinction it draws--between defendants who "assert" their right to counsel and those who do not--is exceedingly hazy when applied to States that appoint counsel absent request from the defendant. How to categorize a defendant who merely asks, prior to appointment, whether he will be appointed counsel? Or who inquires, after the fact, whether he has been? What treatment for one who thanks the court after the appointment is made? And if the court asks a defendant whether he would object to appointment, will a quick shake of his head count as an assertion of his right?

To the extent that the Louisiana Supreme Court's rule also permits a defendant to trigger Jackson through the "acceptance" of counsel, that notion is even more mysterious: How does one affirmatively accept counsel appointed by court order? An indigent defendant has no right to choose his counsel, United States v. Gonzalez-Lopez (2006), so it is hard to imagine what his "acceptance" would look like, beyond the passive silence that Montejo exhibited.

In practice, judicial application of the Louisiana rule in States that do not require a defendant to make a request for counsel could take either of two paths. Courts might ask on a case-by-case basis whether a defendant has somehow invoked his right to counsel, looking to his conduct at the preliminary hearing--his statements and gestures--and the totality of the circumstances. Or, courts might simply determine as a categorical matter that defendants in these States--over half of those in the Union--simply have no opportunity to assert their right to counsel at the hearing and are therefore out of luck.

Neither approach is desirable. The former would be particularly impractical in light of the fact that, as amici describe, preliminary hearings are often rushed, and are frequently not recorded or transcribed. The sheer volume of indigent defendants would render the monitoring of each particular defendant's reaction to the appointment of counsel almost impossible. And sometimes the defendant is not even present. Police who did not attend the hearing would have no way to know whether they could approach a particular defendant; and for a court to adjudicate that question ex post would be a fact-intensive and burdensome task, even if monitoring were possible and transcription available. . . .

The second possible course fares no better, for it would achieve clarity and certainty only at the expense of introducing arbitrary distinctions: Defendants in States that automatically appoint counsel would have no opportunity to invoke their rights and trigger Jackson, while those in other States, effectively instructed by the court to request counsel, would be lucky winners. That sort of hollow formalism is out of place in a doctrine that purports to serve as a practical safeguard for defendants' rights. . . .

When a court appoints counsel for an indigent defendant in the absence of any request on his part, there is no basis for a presumption that any subsequent waiver of the right to counsel will be involuntary. There is no "initial election" to exercise the right that must be preserved through a prophylactic rule against later waivers. 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


Earlier this Term, in Arizona v. Gant (2009), the Court overruled New York v. Belton (1981), even though that case had been on the books for 28 years, had not been undermined by subsequent decisions, had been recently reaffirmed and extended, had proven to be eminently workable (indeed, had been adopted for precisely that reason), and had engendered substantial law enforcement reliance. The Court took this step even though we were not asked to overrule Belton and this new rule is almost certain to lead to a host of problems. . . .

The dissent . . . invokes Jackson's antiquity, stating that "the 23-year existence of a simple bright-line rule" should weigh in favor of its retention. But in Gant, the Court had no compunction about casting aside a 28-year-old bright-line rule. I can only assume that the dissent thinks that our constitutional precedents are like certain wines, which are most treasured when they are neither too young nor too old, and that Jackson, at 23, is in its prime, whereas Belton, at 28, had turned brownish and vinegary. I agree with the dissent that stare decisis should promote " 'the evenhanded . . . development of legal principles,' " The treatment of stare decisis in Gant fully supports the decision in the present case.


Today the Court properly concludes that the Louisiana Supreme Court's parsimonious reading of our decision in Michigan v. Jackson (1986) is indefensible. Yet the Court does not reverse. Rather, on its own initiative and without any evidence that the longstanding Sixth Amendment protections established in Jackson have caused any harm to the workings of the criminal justice system, the Court rejects Jackson outright on the ground that it is "untenable as a theoretical and doctrinal matter." That conclusion rests on a misinterpretation of Jackson's rationale and a gross undervaluation of the rule of stare decisis. The police interrogation in this case clearly violated petitioner's Sixth Amendment right to counsel. . . . In Jackson, this Court considered whether the Sixth Amendment bars police from interrogating defendants who have requested the appointment of counsel at arraignment. Applying the presumption that such a request constitutes an invocation of the right to counsel "at every critical stage of the prosecution," we held that "a defendant who has been formally charged with a crime and who has requested appointment of counsel at his arraignment" cannot be subject to uncounseled interrogation unless he initiates "exchanges or conversations with the police[.]"

I agree with the majority's conclusion that the Louisiana Supreme Court's decision, if allowed to stand, "would lead either to an unworkable standard, or to arbitrary and anomalous distinctions between defendants in different States[.]" Neither option is tolerable, and neither is compelled by Jackson itself. . . . A defendant's decision to forgo counsel's assistance and speak openly with police is a momentous one. Given the high stakes of making such a choice and the potential value of counsel's advice and mediation at that critical stage of the criminal proceedings, it is imperative that a defendant possess "a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it," before his waiver is deemed valid. Because the administration of Miranda warnings was insufficient to ensure Montejo understood the Sixth Amendment right he was being asked to surrender, the record in this case provides no basis for concluding that Montejo validly waived his right to counsel, even in the absence of Jackson's enhanced protections.


Although the principles of stare decisis are not inflexible, I believe they bind the Court here. I reached a similar conclusion in Arizona v. Gant, and in several other recent cases.