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at a preliminary hearing required by louisiana law, montejo was charged with first-degree murder. although he remained silent at the hearing, the court declared montejo indigent and automatically appointed counsel to represent him. later that day, the police approached montejo and read him miranda rights, after which he agreed to go along on a trip to locate the murder weapon. during the excursion, he wrote an inculpatory letter of apology to the victim's widow. upon returning, montejo finally met his court-appointed attorney. at trial, his letter was admitted over defense objection, and he was convicted and sentenced to death.
the state high court rejected montego's his claim that the letter should have been suppressed under the rule of michigan v. jackson, 475 u.s. 625 (1986). in jackson, several defendants requested counsel at their arraignments on murder charges. before counsel had been provided to them, police officers questioned the defendants after advising them of their miranda rights. the defendants waived their miranda rights and agreed to talk with police who, in turn, were able to obtain confessions from the defendants. the u.s. supreme court held that the confessions were obtained in violation of the sixth amendment right to counsel because police initiated contact with the defendants after they had invoked their right to counsel and, in so doing, sought a waiver of that right before counsel had actually been provided to the defendants. the louisiana supreme court reasoned jackson did not apply because montejo stood mute at his hearing while the judge ordered the appointment of counsel. thus, he never actually asserted his sixth amendment right to counsel.
the u.s. supreme court upheld montejo's conviction, but disagreed with the state court's rationale, believing its interpretation of jackson would lead to practical problems since in roughly half the states, counsel is appointed without a request from the defendant upon a finding of indigency. the court also rejected montejo's proposal that defendants should not have invoke their sixth amendment rights since such an approach would depart fundamentally from the rationale of jackson, whose presumption was created by analogy to edwards' approach to protecting miranda rights. the court reasoned that both edwards and jackson were meant to prevent police from badgering defendants into changing their minds about the right to counsel once they invoked it, but a defendant who never asked for counsel had not yet made up his mind in the first instance.
ultimately the court overruled jackson and declared a new rule to protect criminal defendants' sixth amendment rights to counsel that mirrors edwards' anti-badgering approach in the fifth amendment context—namely that a defendant in custody cannot be interrogated once he has asserted his sixth amendment right to counsel unless the defendant initiates further communications with police.
the court remanded the case to give montejo an opportunity to argue that his letter of apology should still have been suppressed under the rule of edwards. thus, if montejo made a clear assertion of the right to counsel when the officers approached him about accompanying them on the excursion for the murder weapon, then no interrogation should have taken place unless montejo initiated it. even if montejo subsequently agreed to waive his rights, that waiver would have been invalid had it followed an “unequivocal election of the right.”

1. applying the logic of edwards in the sixth amendment context as montejo instructs, do you think his letter should have been suppressed from evidence? why or why not?

2. on remand, montejo's claims were dismissed because his motion to suppress had been based on the fifth amendment. his sixth amendment concerns were not evident until trial when, under state law, the testimony came too late to affect the propriety of the admission of the evidence (since, as explained in chapter 15), new bases for an objection cannot be raised for the first time on appeal). moreover, assuming, for the sake of argument, that the letter was improperly admitted into evidence, it was deemed harmless error (see chapter 15). do you agree or disagree with the outcome in this case? explain your reasoning.
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