Ok, here is the problem. Defendant arrested. Law enforcement for various reasons can't interview him that night. Defendant is magistrated that morning (15.17 hearing) and fills out a request for ct. appointed counsel.

Police detective contacts jail and is told thad defendant did not have counsel so he interviewed the defendant, on video, where he was marandized waived and confessed.

Now in the post Rothgery rule - can I use this confession or am I toast?

[This message was edited by sch on 07-29-08 at .]

Once the guy requested counsel, the cops should not have approached him and questioned him.

If you do find anything saying this was OK because the defendant got a Miranda and the confession wasn't caused by the delay it is probably grounded in the same line of argument the Supreme Court found unconvincing in Rothgery.

The voluntariness of a statement is not affected by a prior request for appointment of counsel. The right to have counsel present during questioning was apparently waived in your situation. I would certainly argue that under Brewer the police remain free to initiate a conversation. Jackson, properly interpreted, did not hold to the contrary. See Judge McCormick's insightful opinion (part II) in the original Cobb opinion. 93 S.W.3d at 10.

There was a case pre-Rothgary that held the waiver of the Sixth Amendment right to counsel in a very similar situation was not valid. Alford v. State, 788 S.W.2d 436. It is, however, only a court of appeals case. After Rothgary, it would seem this opinion has proved prescient. (If I spelled that right.)

Actually, if counsel had not in fact been appointed prior to the interrogation, I think you fall under Patterson v. Illinois, 487 U.S. 285 (1988). There, the right had attached, but no lawyer was in fact appointed yet, so the defendant could waive his 5th and 6th Amendment rights. 6th Amendment right to counsel attached in Texas, even prior to Rothgery, if defendant requested counsel at a 15.17 arraignment. Nehman v. State 721 S.W.2d 319 (Tex. Crim. App. 1986). If the 6th had attached and a lawyer was appointed, defendant could only waive with his counsel. Holloway v. State, 780 S.W.2d 787 (Tex. Crim. App. 1989).

What Rothgery does is move up the attachment of the 6th Amendment right to the Article 15.17 hearing. No longer does attachment depend upon the arraigned defendant's request for counsel.

Officers that pick up detained suspects for questioning need to find out whether the suspect has been arraigned and appointed counsel. This is critical in light of Rothgery. Officers should also educate themselves about investigative strategies that don't implicate the 5th and 6th Amendments and make full use of those strategies prior to seeking the arrest of suspects. The days of filing and indicting at-large suspects with the expectation of a shot at an interrogation are waning.

Remember two other things with regard to all Miranda/6th Amendment problems:

1. Just 'cause you have a confession doesn't mean you must use it. See what you can build around it. Plus, many "confessions" contain much self-serving BS anyway. A problematic statement that says "I didn't shoot that homeboy, I just shot in the air" doesn't do much for you anyway if you can link the defendant to the gun and the gun to the body. Right?

2. You can use a statement obtained in violation of Miranda/6th Amendment for impeachment. See Harris v. New York 401 U.S. 222 (1971)(Miranda) and Michigan v. Harvey, 494 U.S. 344 (1990)(6th Amendment).

Does it make a difference that he requested a court appointed attorney when the right attached?

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Officers should also educate themselves about investigative strategies that don't implicate the 5th and 6th Amendments and make full use of those strategies prior to seeking the arrest of suspects.

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So an admissible portable intoxilyzer might come in really handy in counties with a 24 hour magistrate...

I don't think it makes a difference that he requested counsel at the 15.17 hearing. That is still nothing more than attachment. Until he has an attorney, there is no one for the police to speak to other than the defendant, and the Supreme Court has said the defendant can waive the right if he does not yet have an attorney. The question then becomes how long is that window? In some counties, the magistrate may pick someone of the list or wheel in the very next moment. In other counties it may take longer. It is a perilous situation that can be avoided in many instances by investigating first and arresting last.

Intoxilyzer is not affected because it is not testimonial in nature and I'm not aware of anything that says the Intoxilyzer room is a critical stage of a criminal proceeding. Due to the time constraints on alcohol cases suspects should go to the Intoxilyzer room before getting magistrated, so you wouldn't have an attachment either.

At this pace, though, the right to an attorney is going to swallow the 4th, 5th, and 8th amendments so nothing will matter anyway. No arrest without an attorney present, no search warrant without an attorney to observe, no trip to the restroom without an attorney . . .

Intoxilyzer might not be testimonial as a 5th amendment matter but it is surely a continuation of the investigation after the arrest and 15.17 says the officer must present the arrested person to the magistrate without unnecessary delay.

Thats why I was saying it would be good to have one to use on the roadside BEFORE the arrest.

So if he requests counsel under the 5th Amendment questioning must stop and can't be continued unless he reinitiates, but not under the 6th because no relationship exists? Even Patterson acknowledged that the analysis changes "markedly" once there's a request for counsel. Under Patterson, the defendant never once sought to avail himself of his Sixth Amendment protections. Here, the defendant did, perhaps feebly, by filling out the form requesting court appointed counsel. And under Jackson, having asked for counsel once, isn't he presumed to want counsel for every interaction thereafter?

[I know there's some nuance that you, JohnR and Martin, have picked up on, so I'm seriously trying to fine-tune my head to get it, too. I could never see the sailboat in those Magic Eye things, either.]

[This message was edited by R.J. MacReady on 07-30-08 at .]

In addition to the right to counsel stuff, the warning given by the magistrate in accordanced with 15.17 informs the accused that they have the right to terminate any interview with the police.

I've got nothing to back this up with but it seems like that warning should count for something if the guy confessed after requesting but before meeting his attorney... he knew he could stop the interview.

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At this pace, though, the right to an attorney is going to swallow the 4th, 5th, and 8th amendments so nothing will matter anyway.

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No wonder... we strive to live in a nation of laws but even the attorneys don't agree on the meaning of those laws?

Is it not correct that many counties use an automated system for electronic appointment of counsel, meaning the court-appointed attorney gets an email or fax saying that he/she has been appointed to represent someone. So in such cases it seems that the person would already have a lawyer even though the defendant doesn't know it yet.

The effect of the prior request is an unknown. For him to waive, though, he must be apprised again of his right to counsel and affirmatively waive that right before he can be questioned.

One thing to remember is that 15.17 allows a suspect to ask for appointment of a lawyer, which is different from invoking your constitutional right to a lawyer under the 5th or the attachment of your right to a lawyer under the 6th.

One of the 15.17 forms I've seen recently has a box to check for "I want a lawyer" and another box to check for "I'll talk to the police now." Is that a valid solution?

Again, investigative efforts should be focused on doing everything possible prior to seeking arrest so that the 6th amendment does not come into play until the the investigation is over (as far as talking to the defendant is concerned), which is undoubtedly more consistent with what the framers intended.

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Originally posted by R_Smith:
Is it not correct that many counties use an automated system for electronic appointment of counsel . . . So in such cases it seems that the person would already have a lawyer even though the defendant doesn't know it yet.

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Whether the defendant knows he has a lawyer isn't really the issue. If the 6th Amendment right has attached, and there is a lawyer assigned, my opinion is that a detective would have to get a waiver from the attorney and the defendant despite the defendant's lack of knowledge.

Intoxilyzer is not in play because of Rothgery or the 6th. Article 15.17 requires an arrested person be magistrated without unnecessary delay. Collection of dissipating evidence is a necessary reason for delay.