I need some help. I have a situation where our JP has started Arraigning defendants soon after arrest. (Senate Bill 7). She asks them if they want a court appointed lawyer. when they answer affirmatively, she checks a box that "Yes they request one and gives them an Affidavit of Indigency to fill out.

One defendant then was questioned by the detective (who did not know about the arraignment) and he gave a full confession. Is the confession valid assuming everything is done according to 38.22 ie a waiver of all rights including an attorney.

In other words, does his statement to the JP consistute invocation of his right to counsel barring any further interrogation.

I think it does. Am I missing anything?

[This message was edited by Allen Williamson on 12-08-03 at .]

I think it's a case-specific invocation of his Sixth Amendment right to counsel. Green v. State
934 S.W.2d 92 (Tex. Crim. App.1996).

This was a real fear that we all expressed when this bill was being debated in the legislature. We are going to have to educate our police officers and investigators that this is a possibility if they wait to interrogate the suspect until after the magistrate has warned him. They need to be aware of when the suspect is arrested. The old practice of letting the guy get arrested and then going down to talk when they get around to it is over.

Let me add to this scenario and thanks for the help.

Defendant is arrested on 4 warrants:

Victim A in County A
Victim B in County A
Victim C in County A
Victim D in County A

Agg Sexual Assault. He is arraigned in County A (See above). He gives a full confession and talks about another instance where he abused Victim A in County A. (Unknown at the time) Will this apply to exception 38.22 3C?

He also admits offenses in County B. which was known but there was no warrant yet from county B.

Assuming we lose confessions on the four warrants. Does this consitute a case specific invocation?

Am I the only person who thinks that asking for a court appointed lawyer to be assigned is not the same thing as requesting to talk to an attorney prior to or during any questioning? It seems to me the argument should be made that he was not invoking his right to talk to an attorney, he was simply confirming to the magistrate that he couldn't afford an attorney and wanted the court to appoint one. Especially if he then waived that right during his custodial interrogation.

Maybe I'm all alone here...?

The Sixth Amendment attaches at arraignment. And you have a 6th amd right to counsel at postarraignment interrogation. Michigan v. Jackson, I think. Right? Dave?

I guess I'm a little confused here. The original post mentioned arraingment and SB7. Arraingments are not supposed to take until two days after the indictment is returned. CCP 26.03. I think now that the procedure involved here should be called an "article 15.17 appearance." Dix & Dawson, 41 Texas Practice sec. 15.01. Watson v. State, 762 S.W.2d 591, 594 n. 4 (Tex.Crim.App.1988) (explaining that an article 15.17 hearing is not an "arraignment" under Texas law).

Here is a snip from an unpublished El Paso case that might help:

The Court of Criminal Appeals has not declared a "bright line rule" for determining when adversarial proceedings have commenced in Texas, thus triggering the Sixth Amendment right to counsel. See McFarland v. State, 928 S.W.2d 482, 507 (Tex.Crim.App.1996); Green v. State, 872 S.W.2d 717, 720 (Tex.Crim.App.1994). It has been held, however, that an arrest alone, with or without a warrant, does not trigger adversarial judicial proceedings. Garcia v. State, 626 S.W.2d 46, 53 (Tex.Crim.App.1981); Garibay, 838 S.W.2d at 271. Likewise, the Sixth Amendment right to counsel does not attach when warnings are made pursuant to Article 15.17 of the Texas Code of Criminal Procedure. Wyatt v. State, 566 S.W.2d 597, 600 (Tex.Crim.App.1978). However, this Court, citing a two-judge panel opinion in Barnhill v. State, 657 S.W.2d 131, 132 (Tex.Crim.App.1983), has held that a defendant's Sixth Amendment right to counsel attached upon arrest pursuant to a felony complaint. Terrell v. State, 891 S.W.2d 307, 312 (Tex.App.--El Paso 1994, pet. ref'd). It is unclear whether the Court of Criminal Appeals will follow Barnhill in the future.

Aren't you talking about two different things? A. when the defendant's right to counsel attaches and
B. when the defendant invokes that right.

There are two times when the right to counsel comes into play.

Under the Sixth Amendment, a defendant has a right to counsel that attaches when formal adversarial proceedings are initiated. That might or might not occur at some point before indictment, but it definitely occurs after indictment when the defendant hires or is appointed an attorney. The Court of Criminal Appeals has not spoken on the earliest official proceeding that can take place to cause this attachment to occur (see foregoing discussion of case law).

Under the Fifth Amendment, a defendant has a right to counsel that may be invoked to avoid self-incrimination. Usually, it is invoked during custodial interrogation.

All of this has become rather complicated because the legislature formalized the process of appointing an attorney. So, now, not only is a judge, following an arrest, immediately "magistrating" the defendant by reading his rights to him and setting a bond, he/she is also making an inquiry as to the need for an attorney.

As some of you have noted, the formal appointment of a lawyer may invoke the defendant's rights of the 5th and/or Sixth Amendment, depending on the circumstances, and thereby interfere with an ongoing investigation.

So, at the point an officer interviews a custodial defendant, he should ask the defendant (after reading Miranda warnings), "Have you hired or been appointed an attorney?"

If a lawyer has actually been appointed, then you may not be able to do anything absent the presence of the lawyer if you believe formal adversarial proceeding have been initiated. That's because the appellate courts have been very strict about applying the Sixth Amendment Right to Counsel.

These things will only be settled through litigation.

quote:

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Originally posted by JK McCown:
Am I the only person who thinks that asking for a court appointed lawyer to be assigned is not the same thing as requesting to talk to an attorney prior to or during any questioning? It seems to me the argument should be made that he was not invoking his right to talk to an attorney, he was simply confirming to the magistrate that he couldn't afford an attorney and wanted the court to appoint one. Especially if he then waived that right during his custodial interrogation.

Maybe I'm all alone here...?

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I tend to agree. I have had this issue in a murder trial recently. Fortunately, the defendant gave a good inculpatory statement before arrest. He then made a second statement after his arrest and request for counsel at the magistrates warning. The second statement clarified some questions we had but was not needed at trial. At the supression hearing, I proved up the second statement with the understanding that the Court would supress the statement allowing me to raise a cross-point on appeal. Unfortunately, the jury hung and I am waiting for the retrial ( I don't want to delay the retrail to do a State's Appeal).

It was my arguement that this request for an attorney was not an invocation of the 5th amendment right to counsel and at the time the second statement was given, no 6th amendment right to counsel had attached. Perhaps I can get an answer.

quote:

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It was my arguement that this request for an attorney was not an invocation of the 5th amendment right to counsel and at the time the second statement was given, no 6th amendment right to counsel had attached. Perhaps I can get an answer.

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This gets confusing. I guess I was wrong initially to be so dismissive of the distinction between an assertion of 5th amd rights versus and assertion of 6th amd rights. McNeil v. Wisconsin, 501 U.S. 171 (1991) makes it pretty clear that invocation of a right to a lawyer at a hearing is not the same as asking for a lawyer to help with questioning. But that case involved two separate charges (the 6th amd, of course, being offense-specific).

The McNeil opinion makes a big deal out of adhering to the rationale of Michigan v. Jackson, 475 U.S. 625 (1986). They said in that case that once the 6th amd right had been invoked, police could not approach the suspect for further questioning. The distinction appears to be (at least according to the McNeil court) that Jackson's questioning was on the *same offense*.

And it may be right that the Sixth Amendment right didn't attach in your case. (I was a little quick to just assume that a 15.17 hearing was the same thing as an "arraignment" for Sixth Amendment purposes). In such a case, I guess it wouldn't matter that he asked for and got an attorney anyway.

I had a suppression hearing this morning on confession where magistrate checked off that defendant wanted a court appointed lawyer and the defendant filled out an affidavit of indigency. The court actually appointed a defense attorney. However, the defense attorney never notified the defendant. Therefore, the defendant didn't know he had an attorney. (We doubt the defense attorney knew he was the attorney.) The police initiated contacted (after this prior attorney had been requested & appointed) without knowing that the defendant had requested an attorney. Defendant tells them that he had requested an attorney, but he agrees to talk to them without an attorney. Full confession results. Has anyone else handled this issue? If so, please help!! We are supposed to be submitting briefs on the issue.

I have a similar situation. Defendant is arrested and tells the JP he wants an attorney. Before an attorney is appointed, defendant waives his Mirnanda rights and confesses. No question as to the voluntariness. He specifically said he didn't want to talk to a lawyer, but instead to consult with a relative who is on record that the confession was not coerced. He then did the same thing at grand jury, waiving any right to an attorney and confessed again. Only after that, did the courts get around to appointing counsel. Now the defense wants to suppress, saying he was not appointed counsel per SB7 and that was a violation of the law, thus warranting the confession be thrown out.


I tend to agree with Jana that asking to be appointed an attorney does not equate with invoking your right to counsel during questioning, particularly when you are warned and say you don't want to talk to counsel.

The problem, of course, is that the statute encourages appointment (and request for) counsel before the right to counsel under the Sixth Amendment has attached (i.e., prior to initiation of of adversary judicial proceedings against the suspect). But Minnick and Edwards deal with invocation of one's Fifth Amendment right (which normally occurs after custody accompanied by a Miranda warning). Flamer v. Delaware, 68 F.3d 710, 725 (3d Cir.1995), cert. denied, 516 U.S. 1088, 116 S.Ct. 807, 133 L.Ed.2d 754 (1996) says "a request for an attorney at arraignment is, in itself, insufficient to invoke the Fifth Amendment right to counsel at subsequent custodial interrogation." I think the accused must again invoke the right to counsel in connection with the interrogation- it is not enough that he generally asked for a free attorney from the magistarate. At least we can hope that the statute is not interpreted to raise the protection of Edwards when "a lawyer's unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation" is not called for at the time of the request.

Try looking at it this way. Let's say the defendant was arrested and immediately called his attorney, who he keeps on retainer for just such emergencies, and tells him to start the meter running, because he is once again in the hoosgow. OK, does that mean the 6th Amendment right to counsel has attached?

Maybe, maybe not, but the answer does not depend on whether he has hired a lawyer. It depends on whether the adversarial process as reached a "critical stage."

In general, courts have identified indictment as the inititation of real adversarial processes. However, it is conceivable that a critical stage could be identified before indictment.

In many counties,for example, an arrest is immediately followed filing the charges directly into a district court, where the defendant makes an appearance. That appearance is often within a couple of weeks and sometimes the next day.

At that appearance, a defendant could, conceivably, plead guilty or have his case dismissed. In other words, something critical could happen.

So, does that mean that the 6th Amendment is triggered at his appearance, which occurs well before indictment?

Getting back to our scenario and switching to the 5th Amendment, the right to be advised of the right to counsel is triggered by custodial interrogation. If a defendant has been arrested and is still in jail, in most places he is likely to have been told about that right by a magistrate. But, that right to counsel arises from the 6th Amendment, which provides a defendant with a lawyer for critical stages. Or does it?

Could the magistrate's reading of warnings be the equivalent of a police officer reading warnings before interrogation? If so, and the defendant invokes the right to counsel, does that cut off interrogation? Does the officer have the duty to know that the right has been invoked?

All of these conundrums are why my office encourages officers to collect their evidence from the defendant, if at all possible, before an arrest takes place. Or to get over to the jail IMMEDIATELY, before magistration and a request for appointed counsel takes place.

I know there are lots of different intake systems out there. Anybody have any other points of view?

Good comments here.