Though bar exams were last week, this question from the Texas District and County Attorneys Association message board would have made a good exam question:
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.Attorneys on either side of the criminal bar should definitely read the whole string. The first commenter interpreted implications from the new SCOTUS decision the same way I would, declaring "Once the guy requested counsel, the cops should not have approached him and questioned him."
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?
A Collin County prosecutor, however, disagreed and thought there were circumstances when police could get away with questioning defendants who'd requested counsel, declaring:
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."Perilous" perhaps understates the gravity of the situation described by this ADA. I'm not an attorney, but I know that after a person has received a Miranda warning, if they ask to have counsel appointed police cannot keep coming back again and again asking questions just because a judge hasn't appointed them a lawyer yet. Similarly, it seems both untoward and constitutionally deficient to try to sneak in one last interrogation session AFTER a defendant requests a lawyer.
Further possibile implications from the Rothgery change were identified by another commenter from Weatherford:
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:I'll betcha most police agencies haven't yet caught on to that important change in the law!
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.
A judge ultimately threw out the confession that launched the TDCAA string, we ultimately learn - a decision that aligns with state appellate court rulings on the subject from San Antonio, Houston and El Paso.
Bottom line, said the Collin County prosecutor, "All this really points to the critical need to investigate your defendant before arresting him. (emphasis in original)" Gee ... there's an original thought! I can see where that might be a good idea, can't you?
Prior related Grits posts:
- Rothgery 'trumped' counties leeway to delay counsel appointments
- A possible explanation for Rothgery confusion
- Dallas County data entry errors could lead to more wrongful arrests like Walter Rothgery's
- What does Rothgery really mean?
- SCOTUS to Texas: Provide counsel earlier in the process
- Rothgery v. John Wiley Price: Move to slash Dallas defender budget couldn't come at worse time
- When does the adversarial process commence?
- Rothgery oral arguments reveal new insight about murky systems
- Do they really have to appoint you a lawyer when you ask for one?
- SCOTUS to decide in Texas case when right to counsel attaches