[JURIST] The US Supreme Court [official website; JURIST news archive] officially opened its 2009 term Monday, hearing oral arguments [day call, PDF; merit briefs] in two cases. In Maryland v. Shatzer [oral arguments transcript, PDF; JURIST report], the Court heard arguments on whether the Edwards v. Arizona [opinion text] prohibition against interrogation of a suspect who has invoked the Fifth Amendment right to counsel is inapplicable if, after the suspect asks for counsel, there is a break of more than two years before commencing reinterrogation. The Court of Appeals of Maryland ruled [opinion, PDF] that there was no break in custody and that the Edwards prohibition against interrogation was still applicable. At oral arguments, counsel for the state of Maryland said the state's position is "that a break in custody from custodial interrogation should be the bright line that this Court adopts in order to end the irrebuttable presumption that this Court created in the Edwards case." Counsel for the US government supported Maryland's position, arguing:

This Court has repeatedly made clear that Edwards v. Arizona is a prophylactic rule designed to implement the protections of Miranda v. Arizona, and it does so by operating as an anti-badgering rule. On the facts of this case, I don't think there is any colorable argument that Mr. Shatzer was badgered into waiving his Sixth Amendment rights.

Counsel for Shatzer responded that "[c]reating exceptions to the rule of Edwards means a clear rule is lost. It introduces uncertainty into the determinations of what constitutes custody and what length of time might be adequate to excuse the protection."

In Mohawk Industries v. Carpenter [oral arguments transcript, PDF], the Court heard arguments on whether a party may immediately appeal a discovery order to disclose materials that party believes are covered by the attorney-client privilege. The US Court of Appeals for the Eleventh Circuit ruled [opinion, PDF] that there is no such right to an immediate appeal. The Court granted certiorari to resolve a circuit split on the issue. Counsel for the petitioner distinguished information protected by the attorney-client privilege from other protected information such as trade secrets by emphasizing "the central and important role that the privilege plays in the administration of justice." Counsel for the respondent argued, "[b]efore 1997, no circuit held that there was appeal as of right for privilege or waiver, and most of the circuits continue that approach. That is the right approach…" Counsel for the US government supported respondents, arguing:

In the last 15 years, this Court … has repeatedly stressed that a necessary requirement is that the order involved and the issues implicated be important and, particularly, that the issues be so important as to outweigh the values served by the important and usual rule of a final judgment requirement. In our view, the denial of an assertion of attorney-client privilege in an individual case does not rise to that level…