Thursday, August 07, 2008

Rothgery Ramifications: 'Investigate your defendant before arresting him'

The Rothgery case decided by SCOTUS this spring established that the Sixth Amendment right to counsel attaches for defendants at their bail hearing, but the full implications of that change have yet to be realized or even fully understood.

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.

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?
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."

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:

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'll betcha most police agencies haven't yet caught on to that important change in the law!

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:

11 comments:

shg said...

I think you nailed this one, in all regards. Investigate before arrest? What a concept!

Anonymous said...

The smartest thing you said is: "I'm not an attorney."
Nor are you a marine biologist.

Gritsforbreakfast said...

"Nor are you a marine biologist." Huh?

Nor am I a cocker spaniel. (?) ;)

Soronel Haetir said...

I would think a careful investigator would be able to conduct an interview up until the time counsel is actually appointed, with the proviso of a warning more specific than Miranda.

Something akin to, "I understand that I have previously requested counsel and that I have no duty to participate in any interview but I hereby waive presense of counsel for the purpose of the present interview."

Even then the LEO would need to be extremely careful, I would hope.

Anonymous said...

I am Tiger Woods.

I can see it now: a perfectly good confession gets thrown out, even after the crook waives his right to have counsel present, because he later claims that he should have had the help of counsel to make the decision to waive the right to have counsel.

My head hurts.

Anonymous said...

Take a look at the brief filed by Gillespie County. I find it particularly interesting that they claim that if the Supreme Court finds for Rothgery it would:

A. It would open the door to future Undesirable Extensions of the right to counsel (page 51)

B. It would create significant practical problems for law enforcement and local government.


Since the SCOTUS did find for Rothgery it will be interesting to see if these predictions come true.

Anonymous said...

Is it any surprise that a Collin County DA is OK ignoring SCOTUS rulings?

Gritsforbreakfast said...

3:31 - Two questions:

First, why would the extension of the right to counsel after its been requested be "undesirable"?

Also, is this really a "significant practical problem" or just a clarified requirement that police investigate a defendant before arresting them?

Soronel - If a person is Mirandized and says they want their lawyer, the system can't then delay counsel appointment so police can take another run at the D sans counsel. How would this be any different?

Anonymous said...

Gillespie County's submitted their
brief on the merits to the Supreme Court and in it they made a policy argument that said would cause all these problems. Look on page 51 and 53 and let them explain it.

By the way said this was not a sufficient reason to delay attachment of 6th amendment rights. They didn't say it wouldnt happen. They said they didnt care if it happened.

So now lets set if it happens!

Some fiesty defense lawyer might just MAKE IT HAPPEN.

Anonymous said...

Here is a taste of Gillespie County's policy argument:

Adopting Rothgery's theory will also work serious
practical harms on law-enforcement efforts to
investigate and prevent crimes. Any extension of
the right to counsel into new contexts undeniably
hampers police investigations. "In seeking evidence
pertaining to pending charges, . . . the Government's
investigative powers are limited by the Sixth Amendment
rights of the accused." Maine v. Moulton, 474
U.S. 159, 179-180 (1985).

Every expansion of the
right to counsel eliminates additional scenarios under
which police can question, record, speak with, or
even just overhear a suspect without inadvertently
violating his constitutional rights and jeopardizing a
future prosecution.



That was a losing argument but the court didn't say it wasn't true, just that it wasn't a compelling enought reason to deny Rothgery his 6th amendment rights at the time of the 15.17 hearing.

Anonymous said...

Does this mean that if someone has a lawyer, the State cannot use overheard/recorded telephone conversations from jail?

I hope the answer is yes because each and every one of us should be protected from self incrimination i.e., the 5th ammendment.