Last year, Jesse Montejo asked the Supreme Court of the United States to review his case because lower courts disagreed about whether the protections provided by the Court’s decision in Michigan v. Jackson, 475 U. S. 625 (1986), were triggered when a defendant was automatically appointed counsel at a judicial hearing. After hearing arguments from the parties on that particular question, the Supreme Court requested supplemental briefs to address a separate question: whether Michigan v. Jackson should be overturned altogether? Montejo v. Louisiana, 129 S. Ct. 1667 (2009). Without any additional oral argument, a majority of the Court overruled the Jackson precedent and held that “doctrines ensuring voluntariness of the Fifth Amendment waiver [of the right to counsel] simultaneously ensure the voluntariness of the Sixth Amendment waiver.” Montejo v. Louisiana, 129 S. Ct. 2079, 2090 (2009). However, because it overturned a case upon which Mr. Montejo reasonably relied, the Court also provided him with an opportunity to make his case to the Louisiana courts again. Id. at 2091 (“we think that Montejo should be given an opportunity to contend that his letter of apology should still have been suppressed under the rule of Edwards [the Fifth Amendment jurisprudence].”). According to the Court:

Montejo understandably did not pursue an Edwards objection, because Jackson served as the Sixth Amendment analogy to Edwards and offered broader protections. Our decision today, overruling Jackson, changes the legal landscape and does so in part based on the protections already provided by Edwards. Thus we think that a remand is appropriate so that Montejo can pursue this alternative avenue for relief. Montejo may also seek on remand to press any claim he might have that his Sixth Amendment waiver was not knowing and voluntary, e.g., his argument that the waiver was invalid because it was based on misrepresentations by police as to whether he had been appointed a lawyer . . . . These matters have heightened importance in light of our opinion today.

We do not venture to resolve these issues ourselves, not only because we are a court of final review, “not of first view,” . . . but also because the relevant facts remain unclear. . . . Montejo’s testimony came not at the suppression hearing, but rather only at trial, and we are unsure whether under state law that testimony came too late to affect the propriety of the admission of the evidence. These matters are best left for resolution on remand.

Id. at 2091-92. Now, a very simple question has come back to the Supreme Court: did the remand order really mean what it said?

On remand at the Louisiana Supreme Court, Mr. Montejo – as prompted by the U.S. Supreme Court – argued both that his statements should have been suppressed under Edwards and that his Sixth Amendment waiver was invalid because it was the product of police deception and misconduct. Although the Louisiana Supreme Court agreed with Mr. Montejo’s argument that his trial testimony could be considered under state law, the Court went further than that, barring his claims because he failed to articulate the Fifth Amendment basis [for suppression] before trial. See State v. Montejo, 40 So. 3d 952, 957 (La. 2010) (“we find that Montejo’s arguments on remand are precluded under state law . . . . Although a reviewing court may consider trial testimony in determining whether a motion to suppress should have been granted, that jurisprudential rule only applies where a defendant has raised the grounds in a motion to suppress.”). In other words, the Louisiana Supreme Court apparently disregarded the U.S. Supreme Court’s acknowledgment that its original opinion “change[d] the legal landscape” and found that Mr. Montejo’s trial attorneys needed to anticipate that their Jackson claim was going to be overturned.

Mr. Montejo has filed a petition for a writ of certiorari that asks the U.S. Supreme Court to give the case a second look. The petition is important, particularly in the wake of the Supreme Court’s first opinion on the matter.

 First, it poses a simple question about whether Justice Scalia’s opinion meant what it said. If the Court denies review this time around, Jesse Montejo – a man who sits on death row – will have been deprived of the opportunity to meaningfully challenge the admissibility of incriminating evidence that had damaging consequences at his trial. In fact, the apology letter may have been the motivating factor behind the jury’s death sentence. The Louisiana Supreme Court’s attempt to deny this man a substantive review should disturb Justices on the U.S. Supreme Court; Mr. Montejo’s life hangs in the balance.

Second, this case implicates Scalia’s reassurance that “it is hard to see why [the Fifth Amendment cases] would not also suffice to protect” a defendant’s choice not to speak to police without a lawyer. Montejo, 129 S. Ct. at 2090. Mr. Montejo testified at trial that he told the detectives that he did not want to go with them, and that he already had a lawyer appointed to him. If his testimony is credited, the Supreme Court should step in and enforce the Miranda-Edwards-Minnick line of cases upon which it relied to overturn Jackson in the first place.

Finally, the police conduct in this case raises serious questions about whether they violated Mr. Montejo’s Sixth Amendment right to counsel. Not only did detectives (implausibly) deny that they knew Mr. Montejo had a court-appointed lawyer some four days after his arrest, but they also previously subjected him to a several-hours-long grueling interrogation session in which the video recording coincidentally cut out at the moment Mr. Montejo requested a lawyer, and coincidentally began recording again several minutes later to reveal a teary and distressed Mr. Montejo asking repeatedly, “What am I doing?” If the police testimony were more consistent and credible, perhaps this case would pose no Sixth Amendment concerns. But, the evidence in the record suggests that police manipulation, coercion, and misrepresentations may have crossed the line between interrogation tactics that are merely harsh and those that are unconstitutional.

If Justice Scalia’s opinion meant what it said, the U.S. Supreme Court should grant certiorari and remand the case again so the important and substantive questions can finally be answered.