CrimLaw

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Hmmmm . . . Didn't really mean it that way.

I took an e-mail from Jason over at Sixth Circuit Law and kind of ran with it for my own little rant about how NY Courts set rules which protect the rights of the citizens of that State while the Virginia Courts will not protect any right unless they feel compelled to do so.

I didn't mean to imply that Jason was wrong in his observation that the Court issued an opinion full of all sorts of pro-Defendant language in order to reach an anti-Defendant result. It's just that I've seen this so often that it doesn't really register anymore (it's amazing what a cynical b@stard I've become in just less than 5 years as a criminal lawyer). Grice may be a little more obvious than most but Courts fill decisions with all sorts of language about rights of the citizenry and protections of those rights and end up telling you why they don't apply to the Appellant. I got excited when I realized the bright line drawn to protect the rights of NY citizens was more Defense friendly than the federal standard as applied in Virginia and it sent me off on my last note.

Meanwhile, All Deliberate Speed points out that "the "bright-line" drawn by the court seems arbitrary." Absolutely correct. I'm sure an argument can be made that it developed thru case law and constitutional interpretation. However, the reality is that it is a line which the NY Courts chose to draw in the sand and say "this far and no further." I would point out that all rights - whether they be prophylactic (as in Grice) or an actual inherent/guaranteed right - are basically lines in the sand drawn by the Courts, legislatures or constitutional conventions. Why is it that my client is entitled to a jury trial on his possession of marijuana charge (carrying a maximum of 30 days) but not on his contempt charge (as long as it is less than 6 months)? Because that's where someone drew the line. Why is my client entitled to an attorney on every charge that carries jail time and not just felonies? Same reason. Needless to say, I don't really see arbitrariness as a deal breaker unless you can show a reason why the line has been drawn at the wrong point in the sand.

All Deliberate Speed goes on to point out one reason why the rule set out by the NY Court might be wrong:

Ken argues that family members would falsely tell police officers that counsel is coming just to halt interrogation, but that seems unlikely, especially given that the interrogation must cease if a family member simply calls an attorney and the attorney calls the police. Further, wouldn't a family member who gives false information to the police in order to stop an investigation be subject to prosecution himself (perhaps for obstruction of official business)?

I must respectfully disagree. I've seen it many times. In Virginia a Defendant is brought before a judge within several days of having been arrested for a hearing to determine what he is going to do for an attorney and (if still in jail) bond status. A number of local judges won't set a bond (or a reasonable bond) on serious cases unless an attorney is on board. I have seen - time and again - mothers, brothers, fiances etc., stand up and tell the judge they have hired an attorney in an attempt to get a bond for their family member. They don't have a letter from the lawyer or any other proof and usually after a few sharp questions from the judge admit that they have not hired the lawyer yet. Some, however, stick to their guns. I know that I have been called by clerks more than once because a judge wanted to know whether "Mr. Smith's" family had retained me and I have no clue who Mr. Smith is. Yes, I know it's all anecdotal evidence but I'm not sure where you would actually get data on this sort of thing (especially since the judge's don't do anything to the family members most of the time, not even a warning).

The availability of charges to file against these family members isn't something I think works as a deterrent. Most of the time I don't think it even enters their minds. Even if it does, family will often take the fall for one another. Don't believe it? Go work in Juvenile and Domestic Court for a while and you will see it every single day. A father might very well reason that to lie to the police officers about an attorney being on the way is better than letting them talk to his 18 year old son when he suspects they are talking to him about the four gang-related murders which took place last week. Catching a "little charge" just isn't going to be his top concern.

The Grice case itself seems to provide a case wherein the father wasn't being 100% truthful with the officers. Let's review the timeline:

Unknown time: D arrested / implicated in a shooting.
11:20: D signs waiver form.
12:30: D's father arrives at station and tells them to stop questioning a lawyer is on the way.
Father not allowed to speak to his son and leaves.
1:45: D signs a confession
2:00: D signs another confession
2:10: Attorney calls and tells police that D is represented and to stop talking to D. Police stop the interrogation.

There may be a number of explanations for this timeline but I think Ockham's razor leaves us with this one: Son is arrested. Father finds out and goes to the police station but is not allowed to speak to his son. Knowing his son is in trouble he tells the police to stop talking to him because a lawyer is on the way. Unable to get to his son, the father leaves. At this point father finds a lawyer and hires him. The lawyer then calls the police and tells them to leave his client alone.

Why do I think that this is the most likely scenario? For two reasons. (1) For the very reason that if there is an attorney hired the father could have called the attorney (from his cell phone or the pay phones which seem to be at every police station) and had the attorney call the police. He didn't so I doubt there was actually an attorney online. (2) Because if you were a lawyer who operated in such a system it would be malpractice if you did not call the police the moment you had been hired by the relatives of a client in this situation and tell them to leave your client alone.

The standard set by the NY Courts is actually fairly generous. It guarantees that the interrogation stops the moment you invoke your constitutional right to a lawyer or the moment a lawyer takes your case and tells the police to leave you alone. Any competent lawyer should do that immediately. On the other hand, when an adult is being interrogated the fact that another adult (once you're 18 family ties evaporate legally) shows up and claims the police should stop the questioning because a lawyer has been hired there is no invocation involved by either the Defendant or someone legally responsible for the Defendant. This is why the rule laid out makes sense to me.

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