By B John Burns
June 29, 2009

David Hackett Souter ended his 19-year run as an Associate Justice on the United States Supreme Court today.  And he didn’t go out quietly.

In a brief statement read from the bench, Justice Souter accused the other justices on the Court of having “touched me more than I can say.”  He declined to be more specific than that.

Ouch!!

It’s been nine years since Clinton, and a week doesn’t go by without some senator or congressman getting caught up in some indiscretion.  But not the SUPREME COURT!!  Bob Woodward, I imagine, is already interviewing sources for a new book on the Court.

When I first heard that he had phrased it that way, I was a little put out, suspecting that Justice Souter had plagarized the line from my Catholic school valedictory address, without attribution.  Having graduated near the bottom of my class, however, I never had the opportunity to deliver the address.  So Justice Souter must have come up with it on his own.

So now I’ve beaten that one to death.

In an 8-1 ruling, the justices said that school officials violated the Fourth Amendment ban on unreasonable searches when ordered Savana Redding to remove her clothes and shake out her underwear.

Redding was 13 when Safford Middle School officials in rural eastern Arizona conducted the search. They were looking for pills — the equivalent of two Advils. The district bans prescription and over-the-counter drugs and the school was acting on a tip from another student.

The school's search of Redding's backpack and outer clothes was permissible, the court said. But the justices said that officials went too far when they asked to search her underwear.

A 1985 Supreme Court decision that dealt with searching a student's purse has found that school officials need only reasonable suspicions, not probable cause. But the court also warned against a search that is "excessively intrusive."

By B John Burns
June 3, 2009

One of the great ironies of our little culture of trial and error is that, after seeing the way our system operated in his case, it is appropriate to characterize James Carson Effler as a “victim”.

Mr. Effler (or, perhaps, his attorney, Angela Campbell) is the victim of a bizarre set of procedural circumstances that culminated in his life sentence for kidnaping in the first degree being upheld.

Mr. Effler is the guy who was caught in the bathroom at the Des Moines Public Library with a naked two-year old girl.  After some interrogation, he admitted to police that he had sexually abused the child.

Couched within the record of the interrogation is a statement by Mr. Effler that “I do want a court-appointed lawyer.”  After the questioning detective says “okay”, however, the defendant adds, “If I go to jail.”  This is before the actual confession.

So the question is whether or not interrogation should have been terminated when Mr. Effler told law enforcement he wanted a lawyer.  The district court didn’t think so, and the confessions came in.  The Court of Appeals disagreed, and reversed the conviction on Fifth Amendment grounds.

By B John Burns
June 2, 2009

I was out last week at the Federal Defenders’ annual seminar in the Twin Cities, and I saw the summaries for Montejo v. Louisiana, which came down last Tuesday.

We took a BIG, BIG hit in Montejo, and this is something that each and every one of us better be aware of.

It has to do with the ability of police officers to go in and initiate an interrogation of our clients AFTER we have been appointed to represent them.  Until Montejo, they couldn’t do it.  In Michigan v. Jackson, the Court created a bright line rule that once a defendant had requested counsel at an arraignment or some form of initial appearance, law enforcement could not, under the Sixth Amendment, initiate an interview with a represented defendant.

No more.

The right to counsel involved in Montejo is the Sixth Amendment right to have counsel present at all critical stages of trial, once the right has attached.  This is distinct from the Fifth Amendment right to have counsel present during custodial interrogation, as articulated in Miranda.  With respect to the Fifth Amendment right, the Court held in Edwards v. Arizona (1981), once the defendant requests counsel, DURING INTERROGATION, all questioning must cease and may only be reinitiated by the defendant.