A Difference of Perspective
Jason from Sixth Circuit Law pointed out, via e-mail, the NY case People v. Grice. What strikes Jason is how the decision against the Appellant is couched in pro-Defense terms. Having been around the block a few times, I have a little different view. I think the NY Court reached the proper decision. Why? Because we all learn pretty quickly that a Defendant or his family/friends saying that a lawyer has been hired does not mean that a lawyer has even been spoken to yet. I suspect that anyone who has practiced criminal law for a while has seen someone fake the hiring of an attorney.
What struck me is how the NY Courts Appellate actually protect the citizens of that State. This case is an exposition on how the right to be represented is pretty close to a sacred right in NY. Compare that with Commonwealth v. Redmond ("Can I speak to my lawyer? I can't even talk to lawyer before I make any kinds of comments or anything?" is not a clear invocation of the desire to have counsel present during questioning) and the absolutely terrible blows wrought upon the inherent rights of the citizenry in the rush to convict Malvo (see this post and the one it links to).
The difference? NY Courts clearly see their role as enforcing the law as a shield guarding the citizenry against possible abuses by law enforcement. Virginia Courts do not feel any duty to protect the citizenry of the Commonwealth in any way except that which is absolutely mandated by an external force (the federal supreme court) and they will limit that as much as possible. In other words, NY Courts enforce rights under the NY Constitution while Virginia Courts tell us time and time again that the Virginia Constitution is meaningless for criminal Defendants and rights exist only as they are protected by the federal constitution (of course they never put it quite that baldly). e.g:
"Our courts have consistently held that the protections afforded under the Virginia Constitution are co-extensive with those in the United States Constitution." Henry v. Commonwealth, 32 Va. App. 547, 551, 529 S.E.2d 796, 798 (2000) (quoting Bennefield v. Commonwealth, 21 Va. App. 729, 739-40, 467 S.E.2d 306, 311 (1996)). Therefore, our constitution provides no greater due process rights than those granted under the Fifth Amendment of the United States Constitution.
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