Wednesday, December 7, 2011
David S Rubenstein has posted AEDPA's Ratchet: Invoking the Miranda Right to Counsel after the Antiterrorism and Effective Death Penalty Act (Washington Law Review, Vol. 86, No. 4, 2011) on SSRN. Here is the abstract:
In Davis v. United States, the Supreme Court established a high standard to invoke the Miranda right to counsel, holding that a suspect must make a clear and unequivocal request for an attorney. Two years later, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA), which created a highly deferential standard of review for state court judgments challenged under federal habeas corpus jurisdiction. Generally, a state prisoner challenging the alleged deprivation of his Miranda right to counsel may obtain federal court relief under AEDPA only if his conviction in state court was based on an ‘objectively unreasonable’ application of Supreme Court precedent. This Comment argues that the AEDPA standard of review effectively raises the bar for individuals to successfully invoke their right to counsel above what Davis requires, even outside the habeas context. This means that AEDPA's procedural standard of review has effected a shift in substantive law, even if courts did not intend that shift. To remedy this skewing of substantive law, this Comment proposes that the Supreme Court discourage trial and direct-review courts from basing their decisions on AEDPA cases.