Donald, at All Deliberate Speed, comments further on Grice and NY law.
At the end he asks two questions. (1) Why choose to draw a line in the sand at this point if the court thinks the suspect being interrogated may not be in the best position to make the decision whether to waive counsel or not? Personally, I am as ignorant of NY law as Donald is but I would hazard that it is something along the line of what I offered at the end of my last post: As an adult you are presumed competent. Another adult has no legal authority to act on your behalf (even if he is a well informed family member). However, a retained attorney - by definition - is someone who has been hired to act on your behalf in a legal matter and thus can intercede.
(2) Wouldn't this rule invite police abuse? He mentions arresting clients at a time when lawyers would be as hard to reach as a possible. I'll go him even one further. There's at least a 50-50 chance that the timeline in the Grice case could be supplemented with additions something like this:
12:30: Father arrives at station asks to see his son. He is told to sit down and they will see what they can do.Heck, if they are good, they may have even been able to delay the father from leaving to hire an attorney even longer than that.
12:45: Father asks again and is told that Detective Smith is talking to his son and will be out to talk with him directly. Father says he has hired a lawyer who is coming and that the Detective needs to stop talking to his son. Duty officer writes the information down and promises to give it to the Detective.
1:00: Father demands that any questioning end and that he see his son. Duty officer tells him to sit down, leave, or get arrested for disturbing the peace. Father leaves and goes to get an attorney.
Unfortunately, wherever the line is drawn police are encouraged to play these games. It's considered dolus bonus1, encouraged by superiors and prosecutors, and quite often winked at by the courts.
Even were the "family intervention" standard adopted police could play these games. Included in my "parade of terribles" under a that standard would be that it would encourage police to arrest entire families so that no one can intervene in the questioning of the target. We know, from the pretext stop cases that, under the federal standard, the courts refuse to consider the actual reason for an arrest as long as the reason given is valid.
Consider: Police want drug dealer Bobby (18 years and 2 days old) who lives with his mother, father, and 13 year old sister. At 4:30 a.m. they raid the house and lock everybody down. At 4:45 they have found 2 lbs. of marijuana, 12 rocks, and smoking devices in Bobby's room. Since they want to short circuit the "family intervention" standard they arrest both parents for contributing to the delinquency of a minor. Their probable cause is that it is obvious that he was at least smoking in the house and by tolerating such activity the parents have harmed the little sister. Will it stand up in court? Maybe not, especially if it turns out that Bobby is a Mad-Dog Crip of whom his own parents were terrified. But it does keep the parents out of the way until bond is set (after a magistrate is rousted out of bed or they are presented before a judge). In the meantime Bobby is interrogated without interruption. Unless, of course, someone hires a lawyer who intervenes.
I'm not sure I want to set a standard which encourages law enforcement to act in such a manner even if it is dolus bonus.
1:By the way, yes dolus bonus drives me nuts. I cannot recount the times I've stood in court while prosecutors and police were all pleased with themselves because they have found some way to violate the spirit of the constitution or the law by adhering to its letter. Of course, they would claim that they are seeking justice by avoiding the traps in the law. Sometimes they may be right but on the other hand . . .
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