Okay, I admit that the title of this post is a no brainer. Still, it is interesting to note that no matter how entrenched the concept of the “5th Amendment Right to Counsel” is, we still have police blowing through defendants’ requests to have their attorneys present during custodial interrogations.
State v. Bowlin, No. 99,213 (Kan. App. Ct. April 30, 2010) is the latest example of law enforcement’s seeming inability or unwillingness to reign in their blatant efforts to circumvent the Constitution. In brief, the defendant made a clear request for counsel at the early stages of his interrogation. Despite this (or because of it–”he wouldn’t be invoking Miranda if he wasn’t guilty”) the interrogators pressed forward. They pushed and pushed until the defendant agreed to talk, which resulted in a confession.
So here’s the rule on Miranda as affirmed by Bowlin (in syllabi form). It is rather lengthy, but nonetheless succinct as applied to the multiple sub-issues that can come up when the issue of the 5th Amendment Right to Counsel comes up (the numbers are the syllabus paragraph numbers in case you want to check out the case itself and refer to the body of the Bowlin opinion).
3. Invocation of the Fifth Amendment right to counsel, which is protected by Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, reh. denied 385 U.S. 890 (1966), may be asserted at any time and requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney in dealing with custodial interrogation by the police.
4. The assertion of the Fifth Amendment right to counsel under the United States Constitution has two aspects: (1) the suspect must articulate his or her desire to have an attorney present sufficiently clearly so that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney; and (2) the request must be for assistance with the custodial interrogation, not for later hearings or proceedings.
5. Once a suspect invokes the Fifth Amendment right to counsel under the United States Constitution, not only must the current interrogation cease, but the suspect may not be approached for further interrogation until counsel has been made available to him or her.
6. Although an officer is not required to ask clarifying questions to ambiguous post-Miranda statements, it is good police practice for interviewing officers to seek clarification of suspects’ ambiguous or equivocal reference to an attorney. Clarifying questions protect the suspects’ rights by ensuring that they get an attorney when they want one and minimize later judicial second-guessing as to whether the suspects were actually invoking their right to counsel.
7. Under the facts of this case, where the officers clarified the defendant’s request for an attorney during his interrogation but chose not to honor his right to counsel under the Fifth Amendment to the United States Constitution, the defendant’s post-request statements were involuntary.
8. In determining whether a statement is voluntary, courts look at the totality of the circumstances. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the accused’s free and independent will.
9. Coercive police activity is a necessary predicate to a finding that a confession is not voluntary.
10. Where the appellate record in this case shows that the interrogators’ coercion and overreaching police conduct were causally related to the defendant’s confession, the defendant’s interrogation statements were involuntary.
11. Under the facts of this case, defense counsel’s failure to move for suppression of the defendant’s interrogation statements, which were vital to the State’s case, cannot be dismissed as trial strategy and constituted ineffective assistance of counsel.
As I’ve said more times than I can count on both hands, talking to the police is almost always a bad idea. On occasion I’ve fielded calls from potential clients who wanted to go in to the station for an interview and wanted counsel present. Even when this occurs it is a bad idea in most cases (unless you are the victim reporting a crime). A much better option is for the attorney to prepare a written statement, and maybe obtain a lie detector test with a series of question for the private investigator to ask. The former will prevent the interrogator from asking any questions, and the latter will tell the client and attorney how much trouble the client might have gotten in if he would have talked to the police with the result of the test protected from disclosure to law enforcement via Work Product Privilege.
Case in point is this week’s Goldman Sachs congressional hearings. I will spare you the details, but to say that the suspects made multiple incriminating statements would be the understatement of the decade (although the individuals may have helped the employer, they did not help themselves at all–more on that conclusion later). It was a train wreck. What amazed me was that all those who testified, including the trader who orchestrated the scheme that caused the brouhaha, said they received legal advice from Goldman lawyers (helped Goldman, but hurt the individuals? I wonder who the lawyers perceive to be the one who butters their bread). Net result: This morning I read in the Wall Street Journal that the U.S . Attorney’s Office was opening a criminal investigation.
Oops! I would love to hear Goldman’s $1,000.00 per hour lawyers explain to the Goldman employees who thought the lawyers were helping them how the legal advice to answer the questions asked by Congress was a good idea.