Wednesday, May 27, 2009

Marginal benefits


When Souter announced his retirement, I said I wanted a justice with criminal trial experience (I should have specified on the defense side). Because I’m tired of decisions like today’s in Montejo v. Louisiana, in which 5 justices pretended that eroding a suspect’s right not to be questioned without their attorney present, after they have invoked their right to that attorney, won’t lead to many people being falsely convicted on the basis of coerced confessions (WaPo: “The government...” that’s the Obama administration, folks “...said that suspects who don’t wish to talk to police don’t have to and that officers must respect that decision.” Of course they must. Indeed, Scalia referred to not having many people being falsely convicted on the basis of coerced confessions as only a “marginal benefit” of the previous (Jackson) rule.

When Thurgood Marshall retired, one of his old clerks recounted to NPR a story Marshall had told his clerks from his old NAACP days, when he had arrived in some Southern town only to be told that his client had been lynched the night before. Somehow I don’t think he’d have been too impressed by the “marginal benefits” claim.

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