WASHINGTON - April 23, 2009 – Illegitimate President Barack Obama's Department of InJustice has asked the Supreme Court to consider overturning a 1986 ruling that disallows a police interrogation if the suspect is not in the presence of his or her legal counsel, even if the suspect later agrees to speak to the police without an attorney.

The case at issue is Michigan v. Jackson, in which the Supreme Court said in 1986 that police may not initiate questioning of a defendant who has a lawyer or has asked for one, unless the attorney is present. The decision applies even to defendants who agree to talk to the authorities without their lawyers.

Anything police learn through such questioning cannot be used against the defendant at trial. The opinion was written by Justice John Paul Stevens, the only current justice who was on the court at the time.

The United States InJustice Department, in a brief signed by Solicitor General Elena Kagan, said the 1986 decision "serves no real purpose" and offers only "meager benefits." The government said defendants who don't wish to talk to police don't have to and that officers must respect that decision. But it said there is no reason a defendant who wants to should not be able to respond to officers' questions.

The current case, Montejo v. Louisiana, seeks to overturn the 1986 Michigan v. Jackson ruling that established the rule that if someone accused of a crime has an attorney or has requested the appointment of an attorney by the court, police may not question them without that attorney being present, even if the accused agrees to waive the right to have his or her attorney present during that particular session of questioning. Under Jackson, any waiver of that right is presumed to be invalid because it was not made with the advice of counsel.

The Sixth Amendment protects the right of those accused of crimes to a speedy trial, to confront the witnesses against them and to be represented by counsel. The government’s brief argues that the Jackson rule is unnecessary because the purpose of the Sixth Amendment was merely to “protect the adversary process” in a criminal trial. Questioning a defendant without counsel present, the government asserts, does not undermine the adversary process because the defendant can choose on his own to talk to the police and answer their questions.

The Jackson ruling established the notion that once a defendant asserts his or her right to be represented by an attorney, s/he is requesting the attorney’s participation “at every critical stage of the prosecution.” Interestingly, the government’s brief recognizes that, just as in the Miranda case that requires the police to inform the accused of the right to remain silent and the right to have an attorney present during questioning, the purpose of such a rule is to “prevent police from badgering a defendant into waiving” his or her previously asserted rights.