So, do at least a majority agree that R_Smith's original suggestion that it would be improper for the police to even approach the suspect was wrong? That really was my only point.

A suspect always has a "right" to counsel. He merely need say I ain't saying nothing 'til I can talk to my lawyer (and then remain silent). No warnings and no magistration required.

I do not think any court will hold that the Sixth Amendment was designed to prevent all attempts to secure a confession after an arrest*, merely because the suspect recognized he might need a lawyer down the road. Interfering with the right to counsel by going around counsel is one thing. Speaking with someone who has no attorney, but is willing to talk is another. If I am wrong about this, then Miranda will pale in significance to the new Sixth Amendment hands off doctrine as far as crime fighting goes because the police will continue to seek warrants before ever speaking with their suspect. It is not a waiver of the right to counsel that is at issue. It is a waiver of the right to have the counsel appointed prior to, and present during, any questioning.


* OK, I am eliminating the option of calling up the lawyer and asking for permission to secure his client's statement as a useful endeavor.

NOW! NOW you weigh in! As smart as you are . . . hey, wait a minute, you are smart for not posting until now. Sheesh.

I agree with you that the mere attachment of the right to counsel doesn't create an absolute bar to approaching a defendant for questioning. Patterson rejected that argument. I do, however, have doubts about approaching a defendant to question him about the offense he's currently charged with after he's filed a request for court appointed counsel (after a magistrate has told him he has the right to do so). As I've detailed in previous posts, some courts in Texas have held this, though they would only be binding on trial courts in San Antonio, Houston, and El Paso, and subject to review by higher courts. But the Supreme Court has not addressed whether filing out the form to request court appointed counsel amounts to the invocation of counsel sufficient to prevent initiation of communications with the defendant. So, I agree that reasonable arguments could be made that a waiver of the Sixth Amendment right to counsel after that request for court appointed counsel is not invalid.

But I'm also crazy.

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

I think there are two different issues that tend to get conflated: (1) is a defendant capable of waiving his 6th Amend. right regardless of whether he has ever attempted to invoke the right and (2) can police approach a defendant who has invoked his 6th Amend. right?

Holloway first noted that issue two was not before it:

Respondent Jackson had explicitly requested counsel, thereby expressing a desire to deal with authorities only through counsel. Jackson 's ban on police-initiated interrogation, therefore, was based not on the mere existence of the right to counsel but upon the accused's actual invocation of that right. In the case before us, however, appellant never requested counsel. Nevertheless, he asks th[at] we extend the holding in Jackson to the situation before us. We decline to do so.

Holloway v. State, 780 S.W.2d 787, 790 (Tex. Crim. App. 1989).

Holloway then held that because counsel had been appointed and the defendant had been indicted, he was incapable of waiving his 6th Amend. right:


at the time of the police-initiated interrogation, appellant had been indicted for capital murder and had been appointed counsel.FN11 Appellant had met with counsel. The Sixth Amendment right to counsel had attached at the time appellant was indicted and the attorney-client relationship was established; as such, appellant's unilateral waiver of his Sixth Amendment right was invalid despite appellant having received the required Miranda warnings.

Id. at 796; see also U.S. v. Tools, Slip Copy, 2008 WL 2595249 at *5 (D.S.D. June 27, 2008) ("Any statement about the charged crime that government agents deliberately elicit from a defendant without counsel present after the defendant has been indicted must be suppressed under the Sixth Amendment exclusionary rule." Red Bird, 287 F.3d at 713 (citing Massiah v. United States, 377 U.S. 201, 207, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964)).").

But just because you're not sunk by issue one does not mean you get a pass on issue two. Re-approaching a defendant who has invoked his 6th Amend. right doesn't seem like something that the courts will approve:

It is undisputed that petitioner was arraigned on April 28, 2003, at which time he requested and was granted the appointment of counsel. At this point, petitioner's Sixth Amendment right to counsel attached. See Michigan v. Jackson, 475 U.S. 625, 629 & n. 3, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986); United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984). Thus, petitioner had a right to counsel at all "critical stages" of the proceedings against him, including at any post-arraignment interrogation. See Jackson, 475 U.S. at 630. The police were therefore prohibited from initiating an interrogation, and any waiver of counsel by petitioner was invalid. See id. at 636 ("[I]f police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police interrogation is invalid.").

Coulter v. Bell, Slip Copy, 2008 WL 2705500 at *14 (E.D.Mich. July 10, 2008).

As much as the Sixth Amendment prevents the Government from initiating contact with and interrogating a defendant who has invoked his right to counsel, it permits a defendant to initiate contact with and give statements to the Government on his own accord. See e.g., Murphy v. Holland, 845 F.2d 83, 85 (4th Cir.1988) (holding that the admission of certain inculpatory statements of the defendant did not violate his Sixth Amendment rights, even though he had been arraigned and requested counsel, because the defendant initiated the conversation with law enforcement and properly waived his Sixth Amendment rights); United States v. Garlewicz, 493 F.3d 933, 937 (8th Cir.2007) (same).

U.S. v. Cain, 524 F.3d 477, 483 (4th Cir. 2008).


As for the complaint that the police have no one to talk to if no counsel has in fact appeared, that is exactly the same situation that arises under Miranda. If a suspect invokes his 5th Amend. right to counsel, police don't get to keep approaching him until an attorney shows up.

Going back to Edwards v. Arizona

"an accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."

For someone held in custody is there a clear distinction between saying you want a lawyer's help and saying you want a lawyer's help ASAP?

If so, what stops intentional delays designed to maximize the chance for a confession before the lawyer is actually available?

The courts carry the responsibility for the current situation but the police have done their share to muck it up. It seems if the legislature and courts say "when you do step X, the suspect has rights Y" then the police either skip step X or delay it until after step Z. Usually this works out for the best because, when faced with a confession of a ReallyBadDude (tm) the courts wiggle into a way to use it and everything works out for the best and the ReallyBadDude is sent up the river... now if only they didn't publish these cases.

From my novice evaluation of the Tx case law: where there is uncertainty regarding the defendant's intentions re: his 5th and 6th amendment claims, these claims are most often settled in favor of the state; especially when it involves incongruity between what ReallyBadDude says and what he does. So a lack of clarity with regard to the intentions of the accused in the invocation of these rights is not necessarily bad for police. If there is confusion, the police usually win. In other areas with a bright-line rule, officers have no trouble keeping the I's dotted and T's crossed. The investigation benefits from the confusion.

There is no doubt in my mind that even the jailor in NoWhere County could come up with a simple form that would clarify the intentions of any ReallyBadDude. The truth is there is a scism between what a suspect intends to say and what they actually reveal. See this video of a police officer turned law student: "Don't Talk to the Police" by Officer George Bruch(you can skip the first 4 mins of jokey stuff)

If I was a judge looking at a guy who has confessed to a violent crime, my gut would remind me of the possible future victims if I turned that ba$t@rd loose.

[This message was edited by AlexLayman on 07-31-08 at .]

quote:

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Originally posted by AlexLayman:
Going back to Edwards v. Arizona

For someone held in custody is there a clear distinction between saying you want a lawyer's help and saying you want a lawyer's help ASAP?

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I dunno. In Jackson the court rejected the notion that requesting counsel at arraignment was distinct from requesting counsel during interrogation. Is that what you mean?

quote:

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Originally posted by david curl:

Re-approaching a defendant who has invoked his 6th Amend. right doesn't seem like something that the courts will approve

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This is one thing I wonder about. What if the only approach is to make sure the defendant knows who you are? Take the recent case where the officer went to give the defendant his card and the defendant just starts talking before the officer can do that? What if the officer had just given the defendant his card and walked away? Would that violate? Is it only a violation if the defendant thinks about the card for a couple days then sends out a kite saying I want to talk to the detective? It doesn't seem to me that telling a defendant who you are is "deliberately eliciting" but I felt like the CCA would have decided that against us a few weeks back.

One final question:

What about if the defendant requests appointment of counsel before the magistrate but also agrees to talk to the police prior to appointment of counsel in the next breath (also before the magistrate)? Isn't that a waiver of his invocation such that Patterson would then apply?

[This message was edited by JohnR on 07-31-08 at .]

"[...] is there a clear distinction between saying you want a lawyer's help and saying you want a lawyer's help ASAP?"


"In Jackson the court rejected the notion that requesting counsel at arraignment was distinct from requesting counsel during interrogation. Is that what you mean?"


Actually I was wondering if a suspect could legally "want a lawyer" as a general matter... like sometime before his plea... while at the same time he doesn't necessarily want one right now for this particular interview.
Would such a distinction even be workable in practice?

One other thing to keep in mind is that Rothgery made no change in the procedure for requesting an appointment of counsel, only how the request is dealt with. Ever since 2001 the law has favored the more prompt appointment of counsel and that anyone who wants one learns quickly how to request one. See art. 15.17(a). Rothgery deals only with the meaning of art. 1.051 (i) and (j). I just do not think it represents any change in confession law.

What is amazing is that the issue has not long ago been clearly answered. A second point that will arise under Texas law is the idea that a mere request for appointed counsel does not truly get you an attorney. You must comply with 26.04(n) and (o).

I agree that the only possible "change" in confession law in Rothgery is the moment of attachment of the Sixth Amendment right. The Supreme Court thought so too in the opinion by saying the decision was controlled by Jackson and Brewer.

Also, I think confession law is pretty clear that once a defendant invokes his Sixth Amendment right to counsel, the police can't initiate contact with the defendant without getting more than a mere waiver pursuant to reading Miranda warnings. You have to involve the defense attorney as well, at least where there is an established attorney-client relationship.

But the question still remains of whether the request for counsel after magistration amounts to an invocation of the Sixth Amendment right to counsel such that police can't initiate contact with the defendant. Some courts have held that to be the case, but they are still subject to review by higher courts.

Also, assuming that the right has been invoked, the question has been raised as to whether police may initiate contact with the defendant in spite of the invocation and hope that the invocation does not render a subsequent waiver invalid, or whether police must wait until the defendant has the opportunity to establish an attorney-client relationship with someone before they talk.

Some, like myself, have argued that under Jackson and Patterson, the police would have to wait for the defendant to establish an attorney-client relationship (just as they would in the context of the 5th Amendment) before talking to the defendant. The answer to that question also would not seem to be affected by Rothgery.

And, of course, if the defendant is magistrated and does not request an attorey, Patterson would clearly apply as the mere attachment of the right doesn't prevent police from talking to the defendant. He has to assert it in some way. We are arguing about whether the request itself is enough invoke or whether there must be an actual attorney-client relationship to invoke the right.

Finally, if the defendant stated he'd be willing to talk to the police at the same time that he requests a court appointed attorney in front of the magistrate, then I would think that the subsequent waiver of the Sixth Amendment (when no attorney had been appointed) would probaby be upheld as valid. I would think that the defendant's indication to the magistrate of his desire to speak to police without an attorney not at the behest of law enforcement would provide facts that support the theory that his later Miranda waiver was an expression of his voluntary waiver of his Sixth Amendment right. Similar to the Maldonado case where the defendant's act of writing out the letter beforehand makes his relinquishment of his Sixth Amendment right appear voluntary.

quote:

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Rothgery deals only with the meaning of art. 1.051 (i) and (j). I just do not think it represents any change in confession law.

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In Rothgery the SC held that Texas courts were incorrectly minimizing the significance of 15.17... and the 15.17 provides, among other things, a formal judicial Miranda warning... so that is at least a link, if not a change, to confession law.

I think Rothgery also calls into question other Texas case law to the extent that it tends to minimize the harm of screw-ups and delays in the performance of the required 15.17 duties, especially since those decisions were based on the same legal foundation that the SC referred to as "insufficient justification" in Rothgery.

It seems to me that if you discover that you've been using the wrong counterweight on a balance scale then your previous evaluations made with that scale are are not reliable and should be re-evaluated in light of the new information.

[This message was edited by AlexLayman on 07-31-08 at .]

After speaking with our local appellate nerd (and I mean that in the nicest way possible--really Eddy), our conclusion is that one of the biggest changes that we need to school our local law enforcement officers on is this:

After a Defendant has been arrested and magistrated, if we want to interview him after he makes bail that we would be required to obtain an affirmative waiver of the Defendant's right to counsel (which we would do by having our officers give them the Sec 38.22 warnings), despite the fact the Defendant is not in custody.

I think Eddy is right on that because the 6th amendment attached at magistration, thus, regardless of custody, he must be apprised of his right to counsel and waive it. 38.22 warnings and waiver will suffice.

I'm invoking my right to counsel. Stop it already.

Intoxilyzer! D'oh!

Eddy.

15.17 contains provisions to do the hearing electronically. The magistrate must see an image of the arrested person and the arrestee must be able to hear the magistrate.

Now supposing that a police officer is carrying any necessary forms, couldn't the 15.17 be conducted using a cell phone? Most of them have a decent little built-in camera nowadays.

Wouldn't that be a trip, arrested and out on personal bond without even leaving the scene... could be really handy for police in some situations ... I wonder if it is possible.

Well, went with Patterson arguement that though the right attached at the 15.17 hearing - no attorney had been appointed yet and the defendant never asserted that right when mirandized.

No confession.

Good news is that I had overwhelming physical evidence (she required surgery) and a very brave and extremely credible little girl for a victim.

25-30 minute deliberation by jury and defendat is found guilty of Agg. Sx. Aslt. of Child w/ SBI or threat of SBI/Death.

10 sentencing hearing to the court.

Defendant sentenced to Life!

All 's well that ends well!

Thanks for getting rid of him!

Good job.