So, this happened today: Two guys were arraigned for petty theft charges. Cops showed up and started asking them questions about an unrelated robbery and taking their pictures. The defense attorney intervened, and this is what transpired:

A short version of what happened, including my commentary, is already on the Chronicle. Since people already know about this, and I therefore can’t use it for the perfect exam question that it is, here’s my analysis:

A. Did the cops violate the clients’ constitutional rights?

A. 1. Sixth Amendment. 

In “criminal prosecutions”, that is, after a person is formally charged, he or she is entitled to legal representation. This means, under Massiah v. U.S., that once the person has retained a lawyer, the police is not allowed to elicit information from him/her. But: The Sixth Amendment is offense-specific, which means the cops *can* approach the person regarding an unrelated offense. So far, what the cops did was kosher.

A. 2. Fifth Amendment

But people also have a privilege against self-incrimination, and when under custodial interrogation, they should be Mirandized so that they know they may remain silent and consult with an attorney. Was this “custodial interrogation”? sticky. On one hand, these guys are not under arrest; they are merely standing in the court hallway. On the other hand, the cop says, “you’ll be free to leave when we’re done”, which presumably means they are not free to leave at the moment. And, does asking for names and taking pictures count as “interrogation”? does it produce “testimonial evidence”? If so, they should have been Mirandized. My instinct, lamentably, is that it doesn’t. No custody, questionable interrogation.

B. Was the lawyer allowed to intervene?

Even assuming that there was a violation of the clients’ privilege against self-incrimination, under Moran v. Burbine the privilege belongs to the client, not to the lawyer. The clients should have stopped the interrogation and asked for the lawyer, not vice versa. Of course, this is ridiculously unrealistic–who better than the lawyer to help people with their rights? But there you have it.

C. Should the cops have arrested the lawyer?

Even if the lawyer did not, constitutionally, have a right to intervene, the arrest is ridiculous. There’s an argument there, but the lawyer is not being violent or disruptive in any way. The cops clearly got carried away.

All the other stuff that is going on in the political chatter–racial profiling, zealous representation, yada yada–strikes me as nothing more than political flourish. The bare bones of the legal situation are, I think, as I stated above. Thoughts?

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  1. I'm glad I found your blog. I was frustrated by how you were quoted in the SF Gate and had hoped to find some more thorough analysis from you. I should disclose my bias up front and note that I admire Jeff Adachi and his work.

    I think what struck a cord with me in your blog was that this question was not asked insofar as the right to counsel: should an indigent person be afforded the same protections under the constitution as a person who has hired an attorney?

    A person who hires an attorney can certainly advise their attorney that they do not wish to speak to the police and the attorney can communicate that to the police on the client's behalf. It seems fair, logical, and constitutional that an indigent person be able to do the same.

    Could hypothetical investigation in yet uncharged crime B impact the course of crime A wherein a lawyer has already been appointed? Could the Crime B investigation unveil issues that may be used against the client in bail release, trial, or sentencing in crime A? Could questioning the client about crime B be used to prosecute a crime of dishonesty that could be used against the client if the client chose to testify in the trial on crime A?

    These are some reasons why a lawyer might advise her client to decline all levels of police contact that are not required by law, regardless of the case being investigated or the reason for the police contact, and communicate to the police that she is advising her client accordingly.

    What is troubling about the offense specific analysis of the sixth amendment is that the indigent are generally only appointed a lawyer when they have already been charged with a crime. Those who can afford to retain a lawyer can seek the advice of their lawyer before they are even charged with a crime and retain the lawyer to act on their behalf and give them advice as the prosecution unfolds. The indigent do not generally have even the option to consult with an attorney before they are charged, unless they happen to be represented by counsel in an already charged case.

  2. Agreed! It *is* incredibly troubling. The whole Massiah line of cases is geared in favor of people who retain counsel and seriously sandbags folks who have to depend on the system to appoint counsel for them. Especially since, in this case, it is pretty obvious that these folks would be represented by the public defender for the second offense, anyway.

    Moreover, this is just one more reminder of why the "offense specific" nature of the Sixth Amendment is ridiculous. I spent my day cramming a semester's worth of criminal procedure into minutes, and it was a reminder of the confusion between Edwards and Massiah that throws off my students every year. But we can all thank the Burger and Rehnquist courts for that.

  3. I work for the Public Defender in San Bernardino. If we need to take pictures of our own clients while in custody we need a court order. How can these young men be subjected to having their photos taken on a personal cell phone without consenting? Good for that DPD! Whether she was right or wrong, her intentions were great. And resisting arrest? Come on!

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