RIGHT TO COUNSEL/CRIMINAL LAW--WISHING FOR RIGHTS: INTERPRETING THE ARTICLE 12 RIGHT TO COUNSEL IN MASSACHUSETTS IN THE AFTERMATH OF MONTEJO v. LOUISIANA

This Note reviews Montejo v. Louisiana (2009) and discusses its implications on Article 12 of the Massachusetts Declaration of Rights, particularly related to post-arraignment waivers of a defendant’s right to counsel at a police-initiated interrogation. Montejo’s appeal relied upon a bright-line rule (Jackson rule) established 26 years before, which makes post-arraignment waivers of a defendant’s right to counsel at a police-initiated interrogation presumptively invalid. In Montejo, the Supreme Court did away with the Jackson rule, while allowing that a state may continue to adhere to the Jackson rule under its state constitution. The Author finds that historically the right to counsel in Massachusetts demonstrates the Commonwealth’s longstanding record of being proactive in both affording indigent criminal defendants the right to counsel before the Supreme Court and expanding the right to counsel when the Supreme Court has limited it. While Montejo has affected “a sea change in the law,” the Author argues that following the Supreme Court’s holding in Montejo would degrade the right to counsel and Massachusetts courts should continue the prohibition that is in place forbidding police-initiated interrogations of represented defendants. Further, adherence by the Massachusetts Supreme Judicial Court to pre-Montejo law would continue to provide a bright-line, workable rule thereby ensuring that the protections afforded by Article 12 do not become mere abstractions