Making the right to counsel real in Texas

Representation by an attorney when you're arrested is a basic constitutional right, but too often prosecutors bully suspects into waiving that constitutional protection. Once a suspect gives up the right to counsel, they can be questioned rigorously, often unfairly.

Anyone who's watched NYPD Blueor other cop shows knows how it works. Suspects are routinely told, "I can't help you if you don't sign the waiver," or that if they retain a lawyer it will look like they have something to hide. Then they're pressured to sign a written document giving up their right to a lawyer. A certain percentage, in practice a sizeable one, inevitably succumb to the pressure.

HB 3152 by Rep. Juan Escobar, which will be heard in Tuesday's House Criminal Jurisprudence Committee meeting, would forbid prosecutors from attempting to "initiate or encourage an attempt to obtain from an unrepresented defendant a waiver of the right to counsel." That means prosecutors couldn't request or get others to request that a suspect waive their right to a lawyer. It also bars prosecutors from communicating with a defendant who has requested counsel, unless a judge denied the request. If suspects choose to eschew a lawyer of their own volition, fine, but the state has no business pressuring folks to do so.

Not only would this simple change protect the rights of suspects, it will make for better cases by limiting questionable tactics that might later be grounds for appeal. It could also help reduce coerced confessions that cause the wrong person to be accused while the real criminal goes free. Everyone benefits -- even crime victims -- when the system works like it should.

Not long ago a police officer told me, "I swore an oath to protect the Constitution. In theory, if I'm doing my job, there shouldn't be any need for the ACLU." In theory, I suppose, that's true. In practice, though, police and prosecutors frequently use questionable tactics like these counsel-waivers to strip people of their rights. As long as they do, there will still be a role for the ACLU. I'm happy for Rep. Escobar and others, though, to try to put us out of business.