quote:

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Since, to talk with this person, law enforcement must again inform the defendant of his rights, including right to appointed counsel, and obtain an affirmative waiver, what right is being violated?

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Maybe they are saying the defense attorney is like some magic gunk stuck to the bottom of your shoe and you can't get rid of it.

quote:

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So he didn't invoke his right because he wasn't ever told he could waive it?

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Woah... My head explodes!



The importance of 15.17 was the issue in Rothgery.

This is my thinking:
1. Intoxilyzer test are usually given between the arrest and the 15.17
2. Texas Courts were underestimating the importance of 15.17; they said it wasn't important but the US Supreme Court disagrees.
3. The plain language of 15.17 says it must happen without unnecessary delay. I wrote "unreasonable" before but I was wrong.
4. Pre-Rothgery determinations of what is necessary and what isn't were based on the old frame of reference used by Texas Courts back when 15.17 was not important to them.
5. Now that the 15.17 has constitutional significance, some delays that were necessary enough to delay 15.17 under the old logic may no longer be so necessary, especially since that old logic shares a common ancestor with the failed arguments offered by Gillespie County and the State of Texas in Rothgery.
6. It may no longer be necessary to administer the Intoxilyzer test before the new mighty brighty 15.17 hearing.
7. If it is not a necessary dealy, it is an unnecessary delay.



Let distill it even more:
Before: I might delay or even skip lunch if I am working on something important.
New Fact: I haven't eaten anything for a 3 days.
After: I won't skip lunch for anything.
Cookie Monster: Nom nom nommmm Delicious!

THAT'S crazy.

Which step is crazy?

The cookie monster step.

Thats what I get for skipping lunch!

I'm afraid to stick my toe in these waters, but here goes. Isn't it true that both the US Supreme Court and Texas Courts (in Texas--in the CCP) consider that magistration is reasonable in time if it occurs within 48 hours of arrest?

Janette A

From 15.17

the person making the arrest or the person having 
custody of the person arrested shall without unnecessary 
delay, but not later than 48 hours after the person is 
arrested, take the person arrested or have him taken 
before some magistrate

The plain language says more than 48 hours is not OK, even if it was necessary.

I found a pre-Rothgery unpublished opinion out of Dallas COA saying they did a "survey" and found a range from 90 minutes to 15 hours but that the necessity is decided on the facts of a particular case rather than a hard number of hours or minutes.

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Unfortunately the opinion didnt give any cites to the cases in the "survey."

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Could some types of delays be reasonable but not strictly necessary?

"Enough."

I give up.

Give up on what? What was the question?

I have a new sales phrase for Intoxilyzer:

"Intoxilyzer--refused by 100% of elected officials."

quote:

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Originally posted by R.J. MacReady:
So he didn't invoke his right because he wasn't ever told he could waive it?

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I like that one. Where is Joseph Heller?

I believe was last hired to draft regulations for the federal government.

If he's doing that, he's with the dead guy from Yosarian's tent.

So what's the final determination. Patterson or Jackson? I sure hope the confession was worth all this.

Intoxilyzer!

Ooops, now I'm saying it too!

Back to the original point of the post, here's my best effort at the summary, excluding any reference to the intoxilyzer argument, which frankly, I just never got. (And this thread was originally about confessions, anyway, despite the interesting diversion.)

1. Rothgery moves back the attachment of the right, but ultimately doesn't affect the answer to whether a statement taken after magistration and a request for court appointed counsel violates the Sixth Amendment. If he asserts the right after attachment, that might be a concern, but Rothgery only says when the right attaches, not how you're supposed to interact with the defendant afterwards.

2. Patterson (and Holloway) hold that you can't interfere with an existing attorney-client relationship, but they did not address whether initiating communication after the Sixth Amendment right attaches invalidates a waiver of that right when no attorney has been appointed. With no attorney appointed, there's no attorney-client relationship under the Sixth Amendment to interfere with. (It's a trial right.)

3. Jackson seems to suggest that the request for an attorney itself would prevent an officer from initiating contact, but the primary factual situation the Supreme Court focused on was one where both the police and the defendant's attorney agreed that there would be no communication. And, a defendant whose case was joined with Jackson merely asked for an attorney, and that seemed to be an assertion of the Sixth Amendment right.

4. At least three courts of appeals in Texas have held that the mere request for court appointed counsel at an article 15.17 hearing invoked the Sixth Amendment right to counsel such that a statement taken after a waiver of the right to counsel still violated the Sixth Amendment. But those cases don't matter.

5. I'm crazy.

quote:

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With no attorney appointed, there's no attorney-client relationship under the Sixth Amendment to interfere with. (It's a trial right.)

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The right to counsel being merely a "trial right" was one of the State's failed arguments in Rothgery. The Rothgery opinion says people have this right before the prosecutor even knows about the case.

In all criminal prosecutions, the accused shall enjoy 
the right to [...] have the Assistance of Counsel for 
his defence.

The criminal prosecution can start without a prosecutor. Who knew?!?

"Intoxilyzer--refused by 100% of elected officials."

I hope this isn't true!

Wow! I don't think I have ever started a thread that went this long before! Anyway, sorry to not jump back in until this late. I am currently in the trial w/ the confession problem. We are going to submit all our evidence and make a record tomorrow morning. (In case of defense appeal so we can cross appeal) I really don't think the court is going to let the confession in, which is unfortunate as it is a really good one for us. However, this is also a case w/ a lot of good physical evidence, credible witness, and imediate outcry of abuse. The case is far from lost w/ out it. Thanks for the cases and analysis! If you have anymore, I will be on most of the night for a very short while in the morning.

That Intoxilyzer statement is unfortunately very true.

If I had a confession in this situation that was critical to a case, I would hope for a pretrial suppression that I could take to Washington. If we could try the case without using the statement in case-in-chief, I'd probably say don't do it. If we had to use it in trial, and the officers had made effort to see if defendant had lawyer, and they gave him his rights, and he waived, I'd do my best to see it through. If a lawyer was in fact appointed, I think we lose, even if the police didn't know.

I don't see how we just give up if a Texas court of appeals (or CCA) says one thing about the federal constitution, but the Supreme Court says otherwise. Look at Cobb.

quote:

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Originally posted by AlexLayman:

The right to counsel being merely a "trial right" was one of the State's failed arguments in Rothgery. The Rothgery opinion says people have this right before the prosecutor even knows about the case.

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I'll cop to overgeneralization. I can't get through the day without one or two juicy overgeneralizations. Rationalizations, too. (As this post will demonstrate.) But my point about "trial rights" was to nod to the general perception of the Sixth Amendment as protective of trial rights, a rationale on display in both Patterson and Holloway. By way of contrast, the Fourth Amendment would be more of a liberty interests so the focus is generally on happenings before trial. The Sixth Amendment, on the other hand, is about preparing for the defense against criminal charges, so focus is more generally towards trial. I'd humbly submit that Rothgery moving attachment back, or even not requiring the prosecutor to know about the case, doesn't mean the Sixth Amendment can no longer be considered a trial right. It just says it's necessary to get an attorney involved sooner to prepare for that trial. But you are correct, the Supreme Court did reject the State's argument that trial rights aren't advanced by attaching the right at a 15.17 hearing. Saying that those rights are advanced at a 15.17 hearing does not make the right less of a trial . . . right.

quote:

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Originally posted by JohnR:
If I had a confession in this situation that was critical to a case, I would hope for a pretrial suppression that I could take to Washington. If we could try the case without using the statement in case-in-chief, I'd probably say don't do it. If we had to use it in trial, and the officers had made effort to see if defendant had lawyer, and they gave him his rights, and he waived, I'd do my best to see it through. If a lawyer was in fact appointed, I think we lose, even if the police didn't know.

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I agree. (And I totally agree about looking for effort by the officers to see if the defendant had a lawyer. Very good point.) That's exactly how I'd approach it as well. I'm not persuaded that the Patterson argument will prevail, but I'm crazy and this discussion shows the area is unsettled at least as far as SCOTUS is concerned. John's right, you have to take your shot.

This issue is exactly what folks feared would flow from Rothgery. Welcome to the forefront of the debate!

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