Montejo v. Louisiana; Suspects in Criminal Investigations Must Invoke Right to Counsel and Remain Silent, Even if Represented by Counsel
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair
Former U.S. Supreme Court Justice Robert H. Jackson often warned his judicial colleagues that the court was “forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.”
In May, 2009, The Supreme Court removed a story from the constitutional rules protecting criminal suspects against police-coerced confessions. A criminal defense attorney’s most dreaded hurdle is incriminating statements obtained from his/her client outside the presence of legal counsel. The Supreme Court’s latest excursion into this constitutional arena has resulted in a definitive ruling that will make it easier for prosecutors and law enforcement authorities to secure such statements from criminal defendants, even those who are known to be represented by counsel.
St. Tammany and Tangipahoa Parishes are located in the southeastern corner of the state of Louisiana. It is an ultra-conservative part of the state—a region that sent former Ku Klux Klan leader David Duke to the Louisiana Legislature and voted overwhelmingly for the former Klan leader in his narrowly failed bid to become a U.S. Senator in the 1990s. The death penalty is a natural byproduct of this region’s conservative political mindset.
Lewis Ferrari owned nine dry-cleaning businesses in St. Tammany Parish and one in Tangipahoa Parish. So it was inevitable that his brutal murder in 2002 would demand the death penalty.
On September 5, 2002, Lewis left one of his business establishments where his wife worked and went to a local grocery. When her husband failed to show up for a dinner engagement with her that evening at a local restaurant, Patricia Lewis drove to their home where she found the garage door open and her husband’s car missing. She entered the residence where she found bagged groceries on the counter and her husband lying dead on the floor. The 61-year-old Ferrari had been shot once in the face and once in the chest.
Law enforcement officials quickly learned that Lewis Ferrari was a creature of habit that followed the same routine each day. The day he was killed was “payroll Thursday”—the day he transported money, deposits and checks in the trunk of his vehicle. On payroll Thursday he was always home between 4:00 and 6:00 p.m. with a large quantity of money. Patricia and Lewis always met at 6:00 p.m. at a local restaurant for a family meal.
Almost as soon as the criminal investigation began law enforcement officials focused their attention on Jerry Moore, former disgruntled employee of Lewis Ferrari and a person who had a long term stormy relationship with murder victim. The Ferrari family knew Moore was familiar with Lewis’s “payroll Thursday” routine. The family conveyed these suspicions to the police. The police soon produced sufficient evidence to arrest Moore as the person who planned the crime and Jessie Jay Montejo and Eric Gai, Montejo’s half brother, as the individuals who carried out the robbery/murder.
All three men were arrested. On September 6, 2002, between 4:30 p.m. and 11:00 p.m., and on September 7, 2002, between 3:00 and 4:00 a.m., Montejo was interrogated by the police. The suspect had been advised of his right to remain silent before he was actually taken to the police station and again before the actual interviews began. The interviews were also videotaped. In addition, as the custodial interrogations continued over the next several days, Montejo signed seven written rights/waiver forms. During the interrogation process, Montejo gave investigators a series of statements which initially implicated Moore but gradually escalated his own involvement in the crime. At one point during the interrogation process on September 6—at about 10:00 p.m.—Montejo invoked his right to counsel but immediately revoked that request by inviting additional questions from investigators. Montejo was interrogated again on September 9 and 10, each time revoking his right to counsel, and finally admitted to the detectives that he shot Ferrari when the businessman unexpectedly returned home and discovered his home being burglarized.
On September 10, 2002, before he was interrogated the last time by detectives, Montejo was brought before the court per law Louisiana law for a “preliminary examination,” at which he was informed by the court that he was being charged with first degree murder and that a public defender had been appointed to represent him. Montejo did not request a lawyer, he remained silent. Later that afternoon the detectives who had been involved in the previous interrogation sessions visited Montejo in the parish jail. They did not know an attorney had been appointed to represent the accused man. The detectives asked Montejo to accompany them to a local lake where he had indicated the murder weapon had been discarded. Montejo was once again advised of his right to remain silent but agreed to accompany the detectives. During this trip, Montejo wrote an incriminating letter of apology to Patricia Lewis in which he admitted that he had killed Lewis Ferrari.
Montejo’s attorney was waiting at the jail when the detectives returned with his client. The attorney was not pleased that the detectives had questioned Montejo outside of his presence. On September 23, 2002, the attorney filed a motion to suppress all the statements Montejo had given to the police, including the incriminating letter of apology. He based his motion on a 1986 U.S. Supreme Court decision in Michigan v. Jackson which held that once a criminal defendant had requested counsel at arraignment or any other similar pretrial proceeding, or who was actually represented by counsel, law enforcement officials could not interview him/her outside the presence of counsel. 1/ The trial court denied the motion, and all the incriminating statements and apology letter were heard by a jury in March 2005. The jury convicted Montejo of first degree murder and he was sentenced to death.
Montejo’s case worked its way up the appeals ladder until it reached the U.S. Supreme Court. The nation’s high court agreed to hear the case because it offered an opportunity to revisit and effectively overrule the Jackson precedent which has always been highly unpopular with law enforcement and prosecutors. The Jackson precedent created a bright-line constitutional rule that the Fifth Amendment right to silence could not effectively be enforced absent the Sixth Amendment right to counsel.
The Jackson decision was one in a line of cases by the Supreme Court that sought to establish the parameters of the Fifth Amendment’s right to silence—the right not to be compelled to incriminate oneself—pronounced by the court in 1966 in Miranda v. Arizona. 2/ Miranda established prophylactic rules designed to protect a criminal defendant from law enforcement coercion during custodial interrogations.
Miranda became probably the most despised decision by law enforcement of any decision ever handed down by the Supreme Court. The police have always perceived the rights to silence and to an attorney before a custodial interrogation not as a constitutional safeguard against coercion but as deliberate liberal attempt to undermine law enforcement’s primary objective to “get at the truth.” The problem with this view is that the “truth,” in the custodial interrogation process, has historically been defined by law enforcement as obtaining confessions through deception and coercion, both physical and psychological, as deemed necessary. And an attorney who challenged the police’s right to secure such a confession, whether true or false, by the “any means necessary” tactic and a judge who dared suppress such a confession, were “bleeding heart liberals” who believed in “coddling criminals.”
The law enforcement and conservative political backlash from Miranda became so intense that the Supreme Court toward the end of the “Warren court era” began to chisel away at the decision’s boundaries. For example, in 1974 the court in Michigan v. Tucker held that while the Miranda warnings were designed to protect against Fifth Amendment violations, their application had to be circumscribed in order to the serve societal interests of capturing and punishing criminals. 3/ Three years later the court further chipped away at Miranda in Brewer v. Williams, holding that the rights to silence and counsel can be waived provided the relinquishment of the rights are voluntary, knowing, and intelligent. 4/
But in 1981 the court in Edwards v. Arizona decided to slow the judicial march against Miranda. 5/ In that case the defendant had been arrested and read his Miranda rights. He requested an attorney and the police stopped interrogating him. But a different set of detectives from the same police department returned the following day and started up a new interrogation. The defendant confessed to the crimes he was suspected of committing during this second interrogation. The state and lower federal courts upheld the confession. The Supreme Court disagreed, making three significant findings: 1) that after the defendant asserted his right to silence/counsel and the police returned to question him and secured a confession without providing him with counsel, the confession could not be used against him; 2) that the defendant did not waive his right to counsel because there was no finding that he understood the right sufficient enough to have knowingly relinquished it; and 3) that once defendant asserted his right to counsel there could be no further interrogations without the benefit of counsel, unless the defendant initiated additional communications with the police.
Four years after the Edwards decision, the Supreme Court in Jackson effectively imported the Miranda/Edwards Fifth Amendment right to silence into the Sixth Amendment’s right to counsel by saying that a request for counsel at arraignment should be considered as an invocation of the right “at every critical stage of the prosecution.” Moreover, Jackson created a highly-criticized presumption of an involuntary waiver of counsel “based on the supposition that suspects who assert their right to counsel are unlikely to waive that right voluntarily” in subsequent interactions with the police. 6/ Jackson effectively established a “bright-line” rule that once a criminal defendant is represented by counsel, the State cannot under any circumstances re-approach him/her requesting that he/she waive their right to counsel and consent to additional interrogation.
In 1990 the Supreme Court followed up the Edwards and Jackson decisions with Minnick v. Mississippi. 7/ In that case Robert Minnick and a fellow prisoner escaped from a county jail in Mississippi. They later broke into a mobile home and killed two of the residents in it. When arrested, Minnick requested and was allowed to speak with an attorney. Not satisfied, the FBI and state investigators pressured Minnick to waive his rights to silence/counsel. Minnick resisted the pressure but eventually submitted to the interrogations without an attorney and made incriminating statements. The Supreme Court held that Minnick’s Fifth Amendment right to silence was not terminated simply because he had consulted with an attorney. The court said that once Minnick requested counsel, all interrogations had to cease and could not be reinstated outside the presence of counsel.
Both Edwards and Minnick were instrumental in the Supreme Court’s decision to effectively overrule Jackson in Montejo. This was made clear by the court’s language in Montejo:
“Which brings us to the strength of Jackson’s reasoning. When this Court creates a prophylactic rule in order to protect a constitutional right, the relevant ‘reasoning’ is the weighing of the rule’s benefits against its costs. ‘The value of any prophylactic rule … must be assessed not only on the basis of what is gained, but also on the basis of what is lost.’ We think that the marginal benefits of Jackson (viz., the number of confessions obtained coercively that are suppressed by its bright-line rule and would otherwise have been admitted) are dwarfed by its substantial costs (viz., hindering ‘society’s compelling interest in finding, convicting, and punishing those who violate the law …’).
“What does Jackson actually achieve by way of preventing unconstitutional conduct? Recall that the purpose of the rule is to preclude the State from badgering defendants into waiving their previously asserted rights. The effect of this badgering might be to coerce a waiver, which would render the subsequent interrogation a violation of the Sixth Amendment. Even though involuntary waivers are invalid even apart from Jackson, mistakes are of course possible when courts conduct case-by-case voluntariness review. A bright-line rule like that adopted in Jackson ensures that no fruits of interrogation made possible by badgering-induced involuntary waivers are ever erroneously admitted at trial.
“But with Jackson, how many would be? The answer is few if any. The principal reason is that the Court has already taken substantial other, overlapping measures toward the same end. Under Miranda’s prophylactic protection of the right against compelled self incrimination, any suspect subject to custodial interrogation has the right to have a lawyer present if he so requests, and to be advised of that right. Under Edwards’ prophylactic protection of the Miranda right, once such a defendant ‘has invoked the right to have counsel present,’ interrogation must stop. And under Minnick’s prophylactic protection of the Edwards right, no subsequent interrogation may take place until counsel is present, ‘whether or not the accused has consulted with his attorney.’
“The three layers of prophylaxis are sufficient. Under the Miranda-Edwards-Minnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings. At that point, not only must the immediate contact end, but ‘badgering’ by later requests is prohibited. If that regime suffices to protect the integrity of ‘a suspect’s voluntary choice not to speak outside his lawyer’s presence before his arraignment,’ it is hard to see why it would not also suffice to protect that same choice after arraignment, when the Sixth Amendment rights have attached. And if so, then Jackson is simply superfluous.” 8/
Lawyers for Montejo had argued in the state courts and before the Supreme Court that Jackson was designed to protect both the defendant’s Fifth and Sixth Amendment rights—silence and counsel—throughout the accusatory process while Edwards-Minnick apply only to custodial interrogations. The court dismissed this distinction by saying that a suspect not in custody is in complete control of his situation. He can get up and walk out of a police interview at any point. The court then pointed out that Jackson was “policy driven,” and since the policy against coerced confessions could be adequately protected by the Miranda-Edwards-Minnick prophylactic rules, there was no constitutional need to maintain the Jackson protection. In fact, the court said Jackson’s per se exclusionary rule of incriminating statements obtained absent the presence of counsel actually served to let guilty and dangerous criminals go free even though they had been adequately and properly Mirandized. The court said it had reached the point where it was no longer willing to accept the substantial costs that Jackson imposed on “the truth-seeking process and the criminal justice system” in order to prevent a handful of possibly coerced confessions. 9/
The court, however, did not completely slam the door on Montejo. It said he deserved an “opportunity” to show that the letter of apology he wrote to Patricia Lewis when he accompanied the police to the local lake after having been appointed counsel was inadmissible evidence under the Edwards rule, provided he could show that he made a “clear assertion of the right to counsel” when the police asked him to accompany them to the lake. The rest of his incriminating statements, however, were fair game for the jury.
Law enforcement officials and prosecutors embraced the Montejo decision. They have been dissatisfied with both Miranda and Jackson for some time. Montejo proved to be the right case to remove the Jackson prohibition preventing the police from trying to get a suspect to waive his right to counsel after counsel has been appointed. Montejo has been found guilty of a brutal murder. He is under a death sentence. A strict application of Jackson would have barred any references Montejo made about the murder weapon supposedly being thrown in the lake and his letter of apology to Patricia Lewis—both of which were critical to the prosecution to overcome the conflicting versions of the crime he had made in his previous seven statements. Absent the letter of apology and references to the murder weapon, a jury may not have returned a death penalty verdict.
While as the Supreme Court pointed out the overruling of Jackson will not have any significant impact on the experienced, sophisticated criminal defendant who understand the custodial interrogation process, it will strip away a significant constitutional safeguard for the inexperienced and mentally challenged suspects who actually make up most of those arrested for suspected criminal wrongdoing. We believe the loss of the Jackson bright-line protections will lead to an increased number of false confessions. Many criminal defendants will waive their right to counsel, agree to additional custodial interrogations and “tell them” what they want to hear in an effort to please prosecutors and law enforcements officials in hopes of minimizing their exposure to prosecution.
Tragically, Montejo put another nail in the coffin of the age-old axiom that it is better that a hundred guilty men go free than one innocent man be convicted. Montejo reversed the axiom: better one hundred innocent men be convicted than one guilty man go free.
1/ 475 U.S. 625 (1986)
2/ 384 U.S. 436 (1966)
3/ 417 U.S. 433 (1974)
4/ 487 U.S. 387 (1977)
5/ 454 U.S. 477 (1981)
6/ 475 U.S. at 633-35
7/ 498 U.S. 146 (1990)
8/ 173 L.Ed.2d 955, 968 (2009)
9/ 173 L.Ed.2d at 968
NOTE: The background facts of the Montejo crime gleaned from the Louisiana Supreme Court decision denying his direct appeal on January 16, 2008 in Case No. 86-KA-1887.
By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair