The Court’s decision [Wednesday] in Maryland v. Shatzer – holding that a suspect’s request for counsel is only valid for fourteen days if the suspect is released from custody during that time – dominates today’s news coverage of the Court. Jesse J. Holland of the Associated Press, Adam Liptak of the New York Times, James Vicini of Reuters, Debra Cassens Weiss of the ABA Journal, Jurist, LA Times, and CNN.com all provide coverage of the case, as does NPR’s Nina Totenberg, whose story on the decision includes analysis by a law professor who describes the fourteen-day rule as “totally arbitrary” but ultimately a “good” one.See also SCOTUSBlog's opinion recap. At the Volokh Conspiracy, Orin Kerr points out the obvious - that the US Constitution includes no "14-day rule," a number that was pulled out of thin air - and that the majority opinion by Justice Scalia on its face amounts to legislating from the bench. Kerr then gives an excellent, brief rendition of Scalia's 20 years of history on this subject that explains his enthusiasm for such out-of-character judicial dabbling.
I'm not a lawyer so maybe I'm missing something, but I can't help but wonder how this ruling will interact with the Court's Rothgery decision, where SCOTUS said a defendant's "initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel." So if a defendant is assigned counsel after that initial appearance but is then released on bail, does that mean two weeks later police can now take another run at the defendant and seek a waiver in order to interrogate them outside the presence of their lawyer? That's how Scalia's opinion reads to me, but such an interpretation seems open to abuse.