I would like some input on this scenario: Defendant is arrested for UUMV on 12/31/01. A lawyer is appointed 1/2/02 for the UUMV. When defendant was arrested for UUMV, info came out that he was molesting a child. The sexual assault complaint was filed 1/6/02. A different lawyer was appointed on 1/14/02 for the sexual assualt, but then the court decided to appoint the same lawyer it appointed on 1/2/02 to the sexual assault case, too. On 1/16/02, defendant's (who is still in jail) mother calls police and says "My son wants to talk to you, would you go see him in jail?" 1/17/02 the officer goes to see defendant, does a videotaped interview with defendant, Mirandizes him on video, defendant agrees to talk. The initial reason defendant wants to talk is that he wants to snitch on lots of drug dealers, but he ends up talking about the sex case, too. Officer never notifies lawyer that he's going to talk to defendant because he has no idea defendant even has a lawyer appointed and defendant never mentions a lawyer.

Question: Does the fact that the defendant initiated the contact with the police for the purpose of this interview help with any 6A problem we might have with the defendant having an attorney appointed on the sex case at the time of the interview?

Try reading Foux v. State, 886 S.W.2d 561. It indicates that a defendant can waive his 6th amendment right to counsel by initiating contact. Personally, I have strong doubts about whether that would hold up in the Court of Criminal Appeals or federal court, but apparently it will work in Texarkana.

This issue is important as we have pushed appointment of counsel to an earlier and earlier point in the process. It was easier when appointment waited for a formal charge (indictment) to appear. But now, an overnight stay in jail is sufficiently formal enough to generate appointment of counsel.

Jane, if you can understand Maine v. Moulton and McNeil v. Wisconson you are a better lawyer than most. Your situation is far removed from Massiah and Brewer v. Wiliiams, and I would argue that Moulton deals with knowing exploitation. The issue becomes, where counsel has been appointed at the request of the suspect before adversary proceedings have commenced, must the police still notify counsel. Michigan v. Jackson seems to apply even if the police do not know counsel has been appointed (they cannot claim ignorance-- imputed knowledge doctrine applies), but Jackson also involved them initiating contact.

You must argue that Defendant's choosing to talk is a waiver of any SA right that had attached (by reason of his request for counsel coupled with actual appointment). See Moran v. Burbine ("Sixth does not protect client from consequences of candor"). Defense attorneys will not like that rule, but the police are not all knowing and should not be prohibited from answering the Defendant's call for fear that he might have an attorney. If the Defendant does not know he has received counsel why not treat his decision as voluntary, especially when he receives a Miranda warning? The situation is a lot more like Patterson v. Illinois than Moulton. Unfortunately, I do not think there is a US Supreme Court case "on all fours". I would certainly check the federal circuit courts though.