By Bob Nichols

On October 12, the Supreme Court heard argument in the case of Premo v. Moore, on appeal from the Ninth Circuit.  The Ninth Circuit ruled that Moore’s Sixth Amendment rights were violated when his lawyer failed to suppress his confession, which was inadmissible because it was coerced by the police.

The Ninth Circuit based its decision on Fulminante v. Arizona (1991), which held that “the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him.”  However, both parties before the Court argued the case under Hill v. Lockhart (1985), which holds that a guilty plea can only be challenged for ineffective assistance of counsel if the accused can show he is prejudiced by the faulty representation.  In the case of a guilty plea, Hill requires the accused show there is a reasonable probability that, if properly advised, the accused would not have accepted the plea.

Oregon, joined by twenty-four other states as amici, argued that the Court should not lower the burden on the accused to show prejudice.  The states argued that they would offer fewer plea deals if the pleas were subject to collateral attack.  If Fulminante was allowed to create a presumption that the admitted confession did prejudice the defendant, they argued, it would be difficult for the states to show that the accused would have been convicted anyway.  Would they have to re-litigate the case each time?

Though the Court appeared to side with Oregon, Justice Sotomayor noted that, at a minimum, Fulminante was relevant in that confessions are especially important evidence.  This is especially so for plea deals, as the psychological effect of having already confessed makes it easy to extract a second confession in open court.

The Court should not limit the application of Fulminante here.  This would undermine the Fifth Amendment, which is already tottering under the weight of HudsonThompkins, and other recent decisions.

Nobody wants murderers to go free, but it is reasonable to require the government to preserve other evidence if a potentially coerced confession leads to a plea bargain.  When the Court tells the government what the Fifth and Sixth Amendments require, the government will know what evidence it must preserve, and the appellate courts will not have to rely on the government’s word that it would have been able to convict anyway.  The real question is how much effort the government must make if it wants to imprison its people.

Suppression is a prophylactic, and it loses its effectiveness when unconstitutional evidence isn’t suppressed because court-provided defenders are understaffed.  It would be easiest to prosecute people if they didn’t have any rights, but the people long ago decided that the government couldn’t compel the disclosure self-incriminating evidence.  It can’t circumvent that requirement by providing a lawyer who is too overworked to notice.