Approached by a cop

[cmort666]

Originally posted by straightshooter1:
As to the attorney's duties, Cmort, a lawyer has a duty to represent his client zealously within the bounds of the law. That would require him to give the client the best legal advice he can. That may be to "Shut your mouth!" or it might be to cooperate. Depends on the facts.

And you won't get the benefit of that advice if you instead run your mouth to a cop without your lawyer present. In most circumstances, I'm not saying anything of substance to the cops without my lawyer present. There's simply no downside to doing that and an unknowable plethora of downsides to talking without legal representation. My past and present lifestyle keeps my contacts with the police few and far between. I've spent more time with cops in bullseye pistol matches than anywhere else. It's the lawyer's job to know if a cop is improperly trying to get me to incriminate myself. That's part of his job description.

The WORST thing that can happen is the cops won't like me. Oh well. I'm used to people getting mad at me for not doing things not in my best interest. If I let them influence me, I'd be a drug user, a religious fanatic, a vegetarian, an anti-Semite and have no guns.

 

[boomstick]

One tells the client to tell Officer Friendly that his lawyer will be right there.

I'm obviously not a lawyer, but I think better advice would be to tell the police that he's not talking until his lawyer gets there.

In some states, I THINK there is ample case law that supports the position that an ambiguous statement like "my lawyer is on the way" is not an invocation of 6th amendment right to counsel OR 5th amendment right to remain silent. "Yeah, so he's on the way, great...lets chat before he gets here..." I know there is other case law in other states that says a relative calling the station and telling the police that Johnny has a lawyer on the way IS considered and invocation of 6th amendment right to counsel. If someone told me "my lawyer is on the way" I'd say something like "Well, let me tell you what we're going to talk about when he gets here......We're going to talk about how your buddy just threw you under the bus and said it was YOU who pulled the trigger, and HERE'S his statement. When your lawyer gets off the fairway, takes a shower in the locker room and finally gets here, the warrant request is going to be done and the only thing left for your lawyer to do will be to ask you about which assets you're going to sell to pay his bill. Now I've got to fax the investigator's report on you down to the prosecutor so we can get you in front of a judge. When he gets here, ask your lawyer what type of bond he's going to be able to swing for Murder One. Meanwhile, your pal is released on a personal bond and will likely be telling all your pals to get their stories straight so none of your crap rolls off on them. Now would you like to tell me what happened and iron out the details when he gets here, or would you rather wait until AFTER we've nailed down the deal with your partner?"

That would be followed by you watching your parter walking out the front door and into the parking lot.

I'm using the term "you" here generically, of course, in this hypothetical. Point is, if you MEAN "My lawyer told me not to say anything and I don't want any questions put to me until he gets here, SAY that." That's my non-laywer opinion anway....

Also, don't forget that the right to remain silent and the right to counsel are two different things. And that while invoking the right to an attorney will shut down any questioning, invoking the right to remain silent on crime A does not carry with it a prohibition for the police to ask about crime B as long as the police get a waiver for crime B.

 

[safearm]

There is a U.S. Supreme Court decision, Minnick vs. Mississippi, that states (para-phrasing here) that once a person has asked for an attorney, all police questioning must stop until/unless the attorney is present. This case allowed a cop killer to get his death sentence conviction overturned; luckily there was enough evidence to re-try him and he received life without parole.

 

[boomstick]

But the question is, is "My lawyer's on the way" legally "asking to have a lawyer present during questioning".

There's one case where the cops advised the in-custody of his right to an atty, and he said "Yeah, ah ma need one cuz I can't afford it." Then he signed the Miranda waiver. Court said that that was not an invocation of 6th amend. right to counsel. Not sure if it was US or state case...

"My lawyer's on the way" could mean "We can talk about other stuff until he gets here...." Of course, the in-custody would have to sign a waiver, but if he's dumb enough to call a lawyer and then talk to you before the lawyer gets there, he may be dumb enough to "knowingly and voluntarily" sign a waiver.

 

[straightshooter1]

You are right, boomstick, I should have spelled it out more clearly. I would tell him to tell the police that his lawyer is on the way and he was gonna wait for him to get there to discuss anything with them and tell my client to say nothing else at all till I arrive.

You are right about some case dealing with ambiguous statements. "Maybe I oughta talk to a lawyer" for example is not an invocation and the cops don't have to miss a beat in getting the Waiver or, if they already have one, can keep on talking to the suspect.

In Florida, the shortest time I have found in which the LEOs could go back and try again with someone who has chosen to invoke his right to remain silent (rather than right to counsel) is 1 hour and 40 minutes.

This Miranda stuff is pretty complicated with respect to the exceptions. I usually take at least two and preferably four hours to discuss these in classes with experienced detectives.

Bob

 

[boomstick]

This Miranda stuff is pretty complicated with respect to the exceptions. I usually take at least two and preferably four hours to discuss these in classes with experienced detectives.

Yes it is, especially when you get into the circumstances when 6th amend right to counsel attaches after arraignment, vs. police ability to ask about other crimes, vs. the times after counsel attaches or invokes when they can't talk about any crimes, vs. undercover officers or informans doing the questioning in the jail bullpen.....It's HARD not to get an unconstitutional confession when people wanna talk sometimes!

 

[straightshooter1]

Yeah, the 5th Amendment Right to Counsel (betcha can't find it in there) is the one that says if a suspect invokes his Rt. to Counsel in a custodial interrogation, the cops can't talk to him about other crimes unless and until there's a break in custody (or the suspect re-initiates contact w/the LEO).

That's why those Justices are so much smarter than any of us. They could find that stuff in the 5th Amendment when no one else could. And, imagine that, we stupidly thought it was the 6th Amendment that dealt with the Rt. to Counsel.

Bob

 

[safearm]

But the question is, is "My lawyer's on the way" legally "asking to have a lawyer present during questioning".

boomstick,
My interpretation of your question, and to qualify myself, I'm not attorney, but a retired LEO who was certified to teach constitutional law at a police academy, is that the subject has requested an attorney, and all questioning must cease until the attorney is present, and has had an opportunity to confer, with his/her client.

 

[boomstick]

boomstick,
My interpretation of your question, and to qualify myself, I'm not attorney, but a retired LEO who was certified to teach constitutional law at a police academy, is that the subject has requested an attorney, and all questioning must cease until the attorney is present, and has had an opportunity to confer, with his/her client.

A lot depends on the state and if a defendant wants to appeal into the fed system. For example, I also would guess that the "lawyer's on the way scenario would be an invocation. However, There are a couple MI cases where the courts defined what was defintive. For example, if you can get a waiver, the defendant saying "Can I talk to my lawyer now?" was not sufficient to cut off all questioning and invoke right to counsel. Same thing, when after reading the part about right to counsel, subject said: "Good, ah ma need one cus I can't afford one." That was also not sufficent to invoke.

"My lawyer is on the way" may or may not be sufficient in MI, but that's what Walker hearings are for.

The cases I'm citing are People V. Adams, 245 MI App 226; 627 NW2nd 623 and People V Granderson, 212 MI App 673: 538 NW2nd 471. 2001 and 1995 respectively.

I know it's hard to compare apples to apples when we're talking different states, but that's the way it is in one state anyway.

 

[safearm]

I was never a LEO in Michigan, nor did I teach there, however, my (learned) understanding of the legal system is that U.S. Supreme Court decisions overrule state case law, even Michigan's. If I was the LEO in the scenario you described, where I knew a subject had been given the opportunity to make a call, perhaps even peruse a telephone book for an attorney's number, and then told me that his/her attorney was on the way, I would err on the side of caution and follow the Minnick guidelines. You may disagree with this opinion, but that's what I would do.

 

[boomstick]

I was never a LEO in Michigan, nor did I teach there, however, my (learned) understanding of the legal system is that U.S. Supreme Court decisions overrule state case law, even Michigan's.

Lots of cases are decided based on state law that differs from fed cases. They don't all get appealed to the US Supreme court, and not all judges will overturn a case based on fed case law that differs from state law.

Another state/fed difference: Michigan's fleeing felon rule: If you shoot a fleeing felon, regardless of how dangerous he or she was, you can't be prosecuted under state law. I've never seen the feds step in an prosecute under those circumstances.

 

[safearm]

In Tennessee vs. Garner, the Memphis cop that shot a fleeing burglary suspect (felon) was not prosecuted, either under state or federal law, but the U.S Supreme Court forever changed the rules on the use of deadly force, and the City of Memphis had to pay a hefty bill.
We're not going to resolve this issue in this forum; some attorneys spend their entire careers in consitutional law, therefore, I suggest we end this discussion.