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Last month, the Supreme Court expressed interest in re-examining Michigan v. Jackson, a major 1986 precedent aimed at protecting a suspect's Sixth Amendment right to counsel. On Monday, the Court indicated it wants to rule on the issue without hearing oral argument.
The Court on March 27 had asked for briefing on whether Michigan v. Jackson should be overturned, in the context of Montejo v. Louisiana, a case that had already been argued in January. It's rare but not unprecedented for the Court to ask for supplemental briefing on a related issue in a pending case. In Montejo, the question is whether a suspect must take affirmative steps to accept an appointed counsel to keep police from conducting interrogation. The Michigan v. Jackson precedent said a defendant's waiver of the right to counsel could not be found valid if police initiate questioning after the defendant has requested counsel.
Once the Court asked for briefing on overturning Jackson, all sides filed new briefs, including the Obama administration, which said the Jackson rule was no longer needed because of other safeguards protecting the right to counsel. "Jackson serves no real purpose," the government said in its brief. But Paul Smith of Jenner & Block, who took over the case after Donald Verrilli Jr. left to become associate deputy attorney general at the Justice Department, told the Court the precedent was still necessary to prevent police overreaching. Smith also asked the Court to schedule oral argument to air the issue. The Court turned down that request without comment Monday.
Smith said Monday that the prospect of overturning such an important precedent warranted oral argument time. "If you can get up and talk to them, hopefully it helps," Smith said. The fact that the Court's oral argument calendar ends for the term this week may have been a factor, Smith said, but he also acknowledged the Court's action Monday was not a good sign. "You have to be worried" that overturning the Jackson case is the likely result, Smith said.
Otherwise, it was a fairly quiet day at the high court. The justices granted review in three cases to be argued in the fall: Schwab v. Reilly, a bankruptcy case; NRG Power Marketing, Inc. v. Maine Public Utilities, involving Federal Energy Regulatory Commission review of electricity rates; and Kucana v. Holder, an immigration appeal.
Chief Justice John Roberts Jr. recused in the Court's action denying review of Golden Bridge Technology, Inc. v. Motorola, Inc., an antitrust case involving cell phone technology. One of the parties in the case is AlcatelLucent. In his last financial disclosure form made public last year, Roberts indicated he owns stock in AlcatelLucent valued at $15,000 or less.
This article first appeared on The BLT: The Blog of Legal Times.