Part of the background noise about Barack Obama when he was a candidate was that, as someone who had taught Constitutional law, he would have more respect for the Constitution and its principles than Those Other Guys(TM). So far, though, it doesn’t seem to be working out that way.
For example, the U.S. Solicitor General filed an amicus brief in a case urging the Supreme Court to overturn its 1986 Michigan v. Jackson ruling. The decision in Michigan v. Jackson is pretty straightforward — when a suspect has requested legal representation at an arraignment or other court proceeding, the suspect cannot waive that right unless he or she initiates communication with police.
Writing for the 6-3 majority, Justice John Paul Stevens wrote,
Edwards is grounded in the understanding that “the assertion of the right to counsel [is] a significant event,” 451 U.S. at 451 U.S. 485, and that “additional safeguards are necessary when the accused asks for counsel.” Id. at 451 U.S. 484. We conclude that the assertion is no less significant, and the need for additional safeguards no less clear, when the request for counsel is made at an arraignment and when the basis for the claim is the Sixth Amendment. We thus hold that, if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid. Although the Edwards decision itself rested on the Fifth Amendment and concerned a request for counsel made during custodial interrogation, the Michigan Supreme Court correctly perceived that the reasoning of that case applies with even greater force to these cases.
The position of the Obama administration, however, is that this rule is no longer needed as there are plenty of other rules and procedures in place to prevent police coercion of suspects.
But as an amicus brief (PDF) in support of Michigan v. Jackson filed by former prosecutors and other law enforcement officials noted,
. . . Jackson links two key criminal procedural rights — the Sixth Amendment right to counsel under Gideon v. Wainwright and the Fifth Amendment rights of an accused under Miranda — which are fundamental to the adversary process and maintain public confidence in our criminal justice system. Discarding Jackson would undermine both rights. Allowing the police to initiate interrogation of a represented defendant and to use any resulting statements would strip away protections the attorney can provide, interfere with the relationship between counsel and client, and undercut the integrity of criminal trials…To abandon a rule that safeguards them would erode the public confidence they foster. It would signal that enduring legal principles and important constitutional rights are no longer so enduring nor so important.
It would not have been surprising at all to see the Bush administration argue to dispense with such restrictions on police power. With the Obama administration, however, its a bit shocking to realize just how far separated the reality is from the high-minded rhetoric.