A Primer from the Virginia Supreme Court on the Invocation of Counsel

Every so often the Supreme Court of Virginia seems to adopt a theme across a couple of cases. An example of this was in 2007 when the Court took a couple cases on Obstruction of Justice and significantly altered what the crime of Obstruction is. This time the Court, in two decisions authored by Justice Lemons, has outlined the parameters of the assertion of the right to counsel under Miranda.

I've not had a recent argument which involved assertion of the right to counsel, so I can't claim to be up on the nuances of this area. However, my general impression has been that up to a couple years ago Virginia appellate courts were very hostile to Miranda and required a very clear, unequivocal invocation of the right to have counsel present during questioning. Then things seem to have begun to get mixed up and I recall reading a case or two that seemed to start backing away from the courts' prior position. This month's decisions seem to be the Supreme Court's attempt to remove as much ambiguity as possible.

The question in Zektaw v. Commonwealth (No. 081738), the Court was to decide whether "Right, and I’d really like to talk to a lawyer because this – oh my God, oh, my Jesus, why?" during a custodial interrogation is a clear, unambiguous and unequivocal invocation of the right to counsel recognizable as such to a reasonable police officer. The crux of the matter is whether "I'd really like to" expresses a preference or is an attempt to assert the right. Both the trial court and the court of appeals ruled that it was not an assertion. The Virginia Supreme Court disagreed.

The decision deals quickly with the preliminary matter of whether the defense counsel waived the objection to the introduction of the statement by asking questions about the statement on cross. The Court states that questioning during cross or introducing a rebuttal witness does not waive the objection. Only introducing new evidence of the same character waives the objection.

Then the decision gets to the meat of the matter. The Court goes through an exhaustive list of Virginia cases in which it has ruled upon possible assertions of the right to counsel; it bolsters this discussion with cases from the federal supreme court. Following this, it characterizes the statements which do not assert the right to counsel as follows:

1) An attempt to clarify the right - "Can I have an attorney here?"

2) Asking for someone else to be present, but not specifically asking for an attorney.

3) The defendant stating he might want an attorney.

4) The defendant questioning the wisdom of going forward without an attorney - "Maybe I shouldn't talk to you without my attorney."

After having gone through all of these, the Court decides that "I'd really like to talk to an attorney" doesn't fit under any of these and is an unambiguous assertion of the right.

While the statement may look somewhat ambiguous - after all, it's not an assertion such as "I'm taking the 5th" or "I will not talk to you without my lawyer" - the US supreme court had already set precedent in this when it found "Uh, yeah. I’d like to do that" (in reference to the right to counsel just explained) not to be ambiguous. Smith v. Illinois, (No. 84-5332).In fact, the Virginia Supreme Court could have made this an extremely short opinion: Per Smith v. Illinois this matter is reversed.

In the second case, Commonwealth v. Ferguson (No. 081645), the defendant was more savvy and put his assertion of the right to counsel a little more clearly: "Nah, I want a lawyer, you know what I’m saying?"

Despite the clear invocation of the right to counsel, Officer One continues to interrogate him without getting a response. Eventually, Officer One "concludes the interview", turns off the tape recorder, and leaves the defendant in the room with Officer Two. Officer Two sits in silence with the defendant and, after a few minutes, the defendant begins to talk to Officer Two and eventually, after Officer Two reads the defendant his Miranda rights again, the defendant makes incriminatory statements.

The Commonwealth asserts that these were two separate interviews and that the second one was initiated by the defendant. Thus, while the first interview was unconstitutional, the second was cleared of any tint because it was a conversation by choice of the defendant.

The Supreme Court rejects this interpretation of the situation:

Whatever the significance of Ferguson’s comments that broke the silence, they were the product of the coercive interrogation and environment created by police. Surely, police may not use the product of such techniques as proof of a voluntary reinitiation of communication and subsequent waiver of the right to counsel.
. . .
Under the totality of the circumstances, we hold that this encounter was one continuous custodial interrogation conducted in such a manner as to deliberately disregard a clear, unambiguous and unequivocal invocation of the right to counsel and coerce Ferguson to incriminate himself.

No bright line here; all of these cases are to be decided on totality of their facts.