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Article Excerpt
I. INTRODUCTION
[L]awyers in criminal courts are necessities, not luxuries. (1)
Ever since the U.S. Supreme Court trumpeted the Sixth Amendment right to counsel in Gideon v. Wainwright, (2) our legal culture has extolled the value of this right in ensuring a fair criminal trial. (3) Yet, a "fair trial" implicates much more than the trial itself, particularly since the vast majority of today's criminal cases--90% or more--are resolved by negotiated disposition rather than trial. (4) Defendants thus rarely face their accusers during traditional courtroom proceedings that pit skilled trial lawyers against each other. Instead, defense attorneys determine most clients' fate through telephone calls, meetings, and investigations, and by advising a client effectively on how properly to limit the scope or strength of a prosecution, all to achieve the best disposition possible. (5) Increasingly, the assistance of counsel during a criminal prosecution occurs in pretrial contexts where, after a charge has been filed, (6) preemptive legal advice is imparted, damage is minimized, and bargains are struck.
Perhaps in no pretrial context can this advice of counsel matter more than during an interrogation, (7) where cases and deals often can be won or lost. (8) Yet, the U.S. Supreme Court's current right to counsel jurisprudence profoundly minimizes the importance of the attorney-client relationship during post-charge, pretrial interrogation. For example, notwithstanding the Court's view that a post-charge interrogation constitutes a "critical stage," thus entitling a defendant to appointed counsel, (9) the Court has undermined the real-world import of this ruling by holding that the Sixth Amendment right to counsel, even once attached, is not self-actuating and thus can be waived in the absence of counsel. (10) Further, the Supreme Court largely gutted the notion that counsel's constitutional value to a client extends beyond the four corners of the charging instrument when the Court declared that the right to counsel is "'offense specific,'" (11) with offense defined narrowly under the Blockburger double-jeopardy test. (12) The practical consequence of these holdings is that law enforcement easily can work around an existing attorney-client relationship to question a charged defendant about nearly anything, up to and including the precise factual subject of filed charges. (13)
This Article examines and critiques this Sixth Amendment right-to-counsel jurisprudence, focusing on the Supreme Court's failure to establish Sixth Amendment rules that recognize and protect the necessary professional relationship that attorney and client share in a criminal case. (14) To frame this discussion, Part II.A of the Article surveys the Supreme Court's right-to-counsel jurisprudence in the interrogation context, culminating in the Patterson-Cobb framework, and highlights the debate within the Court over the function that defense counsel serves under the Sixth Amendment.
In Part III, this Article distills the Court's Sixth Amendment jurisprudence to its core: a general apathy towards--if not outright disdain for--the real-world professional value of defense counsel during an interrogation. This view of counsel's role in this context has led the Court improperly to gauge Sixth Amendment problems by a counter-textual freewill theory of client decision-making imported from Fifth Amendment Miranda jurisprudence. This emphasis on free-will in the Sixth Amendment context is wholly disconnected from the counsel whose assistance the Constitution assures to guide defendant decision-making, resulting in precisely the sort of unequal footing between established adversaries that the attorney-client relationship is meant to counterbalance. (15)
In Part III.C, this Article presents an alternative "relational" model for the right to counsel. I argue that this alternate model properly takes the concept of a defendant's free will from the Fifth Amendment Miranda context, and conditions its exercise in the Sixth Amendment context on the promised assistance of counsel if the subject or setting of interrogation intrudes into that attorney-client relationship or necessitates that relationship to preserve equal footing between established adversaries. This model, I argue, correctly conceptualizes the right to counsel in relational terms of attorney and client, not attorney and offenses. (16)
Part IV of this Article considers the potential for competing state-law models of the right to counsel. Part IV.A examines the New York State model of the right to counsel, which predates Patterson and Cobb and differs markedly from this federal model, protecting the attorney-client relationship in a manner similar to what this Article proposes. The New York model thus will be highlighted in particular as similar in form and function to a relational model of the Sixth Amendment. Part IV.B surveys how state courts thus far have treated and applied Cobb: so far, courts have treated it modestly, although some questions remain in certain jurisdictions that have left open the possibility of competing state law approaches to the right to counsel during interrogation.
II. A PRIMER ON THE SIXTH AMENDMENT RIGHT TO COUNSEL
A. AN INTRODUCTION
The Sixth Amendment to the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." (17) This right was "intended to minimize the public prosecutor's tremendous advantage" over lay-persons in matters of law and procedure. (18) By the early twentieth century, the Supreme Court had "construed this [amendment] to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived." (19) But as the Court embarked on its incorporation doctrine, folding rights "implicit in the concept of ordered liberty" into the Due Process Clause, (20) the Court truly began to examine the role that counsel plays in our system of justice. (21)
In the landmark 1963 decision of Gideon v. Wainwright, (22) the Supreme Court declared:
[I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided to him. This seems to us to be an obvious truth.... [L]awyers in criminal courts are necessities, not luxuries. (23)
The Court since Gideon consistently has reaffirmed that the "right to the assistance of counsel ... is indispensable to the fair administration of our adversarial system of criminal justice," (24) because it "safeguards the other rights deemed essential for the prosecution of a criminal proceeding." (25)
Yet, the generalized "right" to counsel recognized in Gideon did not fix the scope of a lawyer's representation to which the Sixth Amendment entitles a defendant* For clearly, when that right attaches, "[i]t cannot be invoked once for all future prosecutions." (26) But, the Court has not accepted that the right exists only when counsel appears at some formal proceeding along with the prosecutor. (27) As a result, the Supreme Court has devoted much energy to refining when and to what extent a defendant must be afforded this "indispensable" assistance of counsel.
The Supreme Court has determined that the Sixth Amendment right to counsel attaches when "a prosecution is commenced ... 'whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" (28) Prior to any actual trial, the right, once attached, applies only at a "critical stage" of the proceedings, which includes interrogations and lineups, for instance. (29) During such proceedings, "the State must of course honor [the right]," (30) meaning "the State [has] an affirmative obligation to respect and preserve the accused's choice to seek this assistance." (31) At a minimum, the "Sixth Amendment guarantees the accused ... the right to rely on counsel as a 'medium' between him [or her] and the State." (32)
Law enforcement's obligation to honor counsel's role as a medium, however, frustrates one of its greatest interests in investigating crimes--questioning the suspect. (33) The Supreme Court has acknowledged that the "police have an interest in the thorough investigation of crimes for which formal charges have already been filed," (34) as well as "in investigating new or additional crimes." (35) But, the Court also has explained that "[i]n seeking evidence pertaining to pending charges ... the Government's investigative powers are limited by the Sixth Amendment rights of the accused." (36) "Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent." (37) For example, "the surreptitious employment of a cellmate (38) ... or) the electronic surveillance of conversations with third parties (39) ... may violate the defendant's Sixth Amendment right to counsel even though the same methods of investigation might have been permissible before arraignment or indictment." (40)
B. JACKSON TO COBB: FROM A BROAD TO AN "OFFENSE SPECIFIC" RIGHT
I do not propose to quibble with these general Sixth Amendment standards governing the right to counsel. These standards, however, do not resolve the ultimate question of whether, once the right has attached, the Sixth Amendment bars any law enforcement questioning of a defendant without counsel. For example, must a defendant assert his or her desire for counsel during post-charge interrogation before law enforcement must honor that right? Does the freedom of choice protected by Miranda warnings adequately protect Sixth Amendment interests? Once in play, does the Sixth Amendment right to counsel protect the attorney-client relationship, or is this protective right limited to the precise subject matter--filed charges--that triggered the right in the first place?
Starting with Michigan v. Jackson, (41) the Supreme Court issued a series of decisions initially suggesting that the Sixth Amendment takes a broad view of the attorney-client relationship during interrogation. Ultimately, however, the Court answered these questions firmly in the negative, leaving open numerous opportunities for law enforcement to question a represented defendant.
1. Michigan v. Jackson: A Broad Sixth Amendment
In Jackson, two separate defendants requested counsel at their arraignments on murder charges. (42) The police subsequently questioned the defendants, who both remained incarcerated, about their pending charges without notifying their attorneys. (43) Both defendants agreed to speak to the police without counsel after receiving Miranda warnings, (44) and the trial court admitted the defendants' statements at trial. (45)
On appeal, the defendants argued that the Fifth Amendment rule from Edwards v. Arizona (46) should apply to police questioning after the Sixth Amendment right to counsel has attached: "[A]n accused ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." (47) Thus, the defendants argued, once their Sixth Amendment right to counsel attached at arraignment and they requested this assistance, the police should not have questioned the defendants without counsel unless the defendants initiated the conversation. (48)
The Supreme Court embraced this position, finding that once the defendants' Sixth Amendment right to counsel attached at arraignment, the police could not overcome the defendants' request for counsel by administering Miranda rights. (49) Rather, the Court opined:
[T]he reasons for prohibiting the interrogation of an uncounseled prisoner who has asked for the help of a lawyer are even stronger after he has been formally charged with an offense than before ... [because of] the significance of the formal accusation, and the corresponding attachment of the Sixth Amendment right to counsel.... Thus, the Sixth Amendment right to counsel at a postarraignment interrogation requires at least as much protection as the Fifth Amendment right to counsel at any custodial interrogation. (50)
The Court rejected the State's argument that the defendants "may not have actually intended their request for counsel [at arraignment] to encompass representation during any further questioning by the police." (51) On the contrary, the Court noted the strict standard for waiver of constitutional rights, which:
[R]equires us to give a broad, rather than a narrow, interpretation to a defendant's request for counsel we presume that the defendant requests the lawyer's services at every critical stage of the prosecution. We thus reject the State's suggestion that [defendants'] requests for the appointment of counsel should be construed to apply only to representation in formal legal proceedings. (52)
Jackson accordingly held that "if police initiate interrogation after a defendant's assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid." (53)
The decision in Jackson did not turn on the Court's assessment of whether the defendant freely wanted to speak to the authorities, independent of any assistance that counsel may have provided. Rather, the Court indicated that beyond a certain point in a criminal proceeding, the Sixth Amendment ensures that a defendant will have assistance when making critical decisions, including whether to go it alone when talking with the authorities. Jackson consequently appears to extend broad entitlement to counsel during interrogation once the Sixth Amendment right to counsel has attached. (54) In Patterson v. Illinois, (55) however, the Supreme Court retreated from such a broad understanding of the right to counsel.
2. Patterson v. Illinois: A Passive Sixth Amendment
In Patterson, the Supreme Court made clear that it did not intend in Jackson for the attachment of the right to counsel alone to create an impenetrable barrier to law enforcement questioning a defendant. Patterson also highlights the Court's soon-to-be-repeated division over the significance of counsel's role in representing defendants during interrogation and, ultimately, in contributing to a fair prosecution.
In Patterson, the defendant was indicted for a gang-related murder. (56) After the indictment was returned, the defendant spoke with a police officer transporting him to a new jail. This officer had interviewed the defendant two days earlier. (57) The officer administered Miranda warnings, and the defendant implicated himself in the murder. (58) Later that day, the defendant confessed again to a prosecutor working on the murder case, also after Miranda warnings. (59) The trial court admitted both of the defendant's statements.
On appeal, the defendant raised two Sixth Amendment arguments in support of suppression. First, the defendant argued that, under Jackson, "because his Sixth Amendment right to counsel arose with his indictment, the police were thereafter barred from initiating a meeting with him." (60) Second, the defendant asserted that the Miranda warnings the officer read, although sufficient for a waiver of his Fifth Amendment right to counsel, did not produce a valid waiver of his Sixth Amendment right to counsel. (61)
The Supreme Court resolved the defendant's first argument swiftly. The Court acknowledged that "[t]here can be no doubt that [defendant] had the right to have the assistance of counsel at his postindictment interviews with law enforcement authorities." (62) However, the defendant:
[A]t no time sought to exercise his right to have counsel present. The fact that [defendant's] Sixth Amendment right came into existence with his indictment ... does not distinguish him from the preindictment interrogatee whose [Fifth Amendment] right to counsel is in existence and available for his exercise while he is questioned. (63)
The Court distinguished Jackson, as that decision "turned on the fact that the accused 'ha[d] asked for the help of a lawyer' in dealing with the police." (64) In Patterson, by contrast, the defendant "had not retained, or accepted by appointment, a lawyer to represent him at the time he was questioned by authorities." (65) That fact would have triggered "a distinct set of constitutional safeguards aimed at preserving the sanctity of the attorney client relationship.... Indeed, the analysis changes markedly once an accused even requests the assistance of counsel." (66) The Court concluded by explaining:
Preserving the integrity of an accused's choice to communicate with police only through counsel is the essence of Edwards and its progeny--not barring an accused from making an initial election as to whether he will face the State's officers during questioning with the aid of counsel, or go it alone. (67)
Patterson consequently precludes any argument that the Sixth Amendment limits law enforcement's ability to question a defendant "preinvocation" any more than the Fifth Amendment under Miranda--in either context, absent a request for counsel, law enforcement may prompt the questioning of a defendant, and the ball remains in the defendant's court to alert law enforcement of his or her desire to deal with them only through counsel. (68) As one federal circuit court recently explained, "[a]ttachment and invocation are distinct legal events," (69) and the "attachment of the right alone does not guarantee a defendant the assistance of counsel." (70)
Four Justices in Patterson dissented, along philosophical lines that continue to divide the Court. Justice Blackmun, writing for himself, simply would have held: "[A]fter formal adversary proceedings against a defendant have been commenced, the Sixth Amendment mandates that the defendant not be 'subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates [any questioning]."'w In Justice Blackmun's view, "the Sixth Amendment does not allow the prosecution to take undue advantage of any gap between the commencement of the adversary process and the time at which counsel is appointed for a defendant." (72)
Justice Stevens, joined by Justices Marshall and Brennan, wrote more forcefully: "The Court should not condone unethical forms of trial preparation by prosecutors or their investigators." (73) Drawing a strong connection between the attachment of a defendant's Sixth Amendment rights and a prosecutor's ethical obligation as an attorney not to contact represented parties without permission, (74) Justice Stevens concluded that "the Sixth Amendment right to counsel demands that a firm and unequivocal line be drawn at the point at which adversary proceedings commence." (75)
Justice Stevens rejected the majority's distinction of Jackson as turning on those defendants' request for counsel. In Jackson, Justice Stevens noted that the Court "held the waiver invalid even though the appointed law firm had not yet received notice of the appointment and the defendant had not yet been informed that a law firm had been appointed to represent him." (76) Consequently, no true attorney-client relationship had developed for the Court to protect beyond the attachment of the defendants' right to that counsel. Justice Stevens thus distinguished defendants whose Sixth Amendment rights have attached from pre-charge suspects in the Fifth Amendment context by focusing upon the Court's previous use of "strong language to emphasize the significance of the formal commencement of adversary proceedings." (77) This strong language "would support the view that additional protection should automatically attach the moment the formal proceedings begin." (78) Instead, Justice Stevens concluded, the majority incorrectly equated '"the purported waiver of counsel in this case ... with that of an unindicted suspect." (79)
The majority's holding in Patterson, requiring defendants to invoke their right to counsel for the right to become operative, may rest in the majority's view that the attorney-client relationship offers little constitutional value during pretrial interrogation. And, the Court may have revealed this view in its rejection of the defendant's second argument in Patterson--that Miranda warnings did not support a waiver of his Sixth Amendment right to counsel. (80)
In rejecting the defendant's argument that, under Johnson v. Zerbst, (81) a Sixth Amendment waiver should require a more informative catechism than Miranda warnings, the Court explained:
While our cases have recognized a "difference" between the Fifth Amendment and Sixth Amendment rights to counsel, and the "policies" behind these constitutional guarantees, we have never suggested that one right is "superior" or "greater" than the other, nor is there any support in our cases for the notion that because a Sixth Amendment right may be involved, it is more difficult to waive than the Fifth Amendment counterpart. Instead, we have taken a more pragmatic approach to the waiver question asking what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance he [or she] could provide to an accused at that stage to determine the scope of the Sixth Amendment right to counsel, and the type of warnings and procedures that should be required before a waiver of that right will be recognized. (82)
The Court thus reviewed the "spectrum" (83) of assistance that counsel can provide during criminal proceedings, and concluded:
The State's decision to take an additional step and commence formal adversarial proceedings against the accused does not substantially increase the value of counsel to the accused at questioning, or expand the limited purpose that an attorney serves when the accused is questioned by authorities.... [W]e do not discern a substantial difference between the usefulness of a lawyer to a suspect during custodial interrogation, and his value to an accused at postindictment questioning. (84)
Indeed, the Court noted, "an attorney's role at questioning is relatively limited." (85) Therefore, "[b]ecause the role of counsel at questioning is relatively simple and limited, we see no problem in having a waiver procedure at that stage which is likewise simple and limited," (86) such as a Miranda waiver. (87)
Justice Stevens rejected the majority's view that defense counsel plays an equally "simple" role during questioning in either a Fifth or a Sixth Amendment setting, because "important differences separate the two." (88) First, "[o]nly after a formal accusation has 'the [G]overnment ... committed itself to prosecute, and only then [have] the adverse positions of the [G]overnment and defendant ... solidified.'" (89) Second, the "indictment also presumably signals the [G]overnment's conclusion that it has sufficient evidence to establish a prima facie case. As a result, any further interrogation can only be designed to buttress the [G]overnment's case; authorities are no longer simply attempting to solve a crime." (90)
In this context, Justice Stevens viewed the majority's vision of defense counsel's role as a "gross understatement of the disadvantage of proceeding without a lawyer and an understatement of what a defendant must understand to make a knowing waiver." (91) Indeed, Justice Stevens "reject[ed] the premise that a lawyer's skills are more likely to sit idle at a pretrial interrogation than at trial." (92) Rather, Justice Stevens explained:
Both events require considerable experience and expertise and I would be reluctant to rank one over the other. Moreover.... "[T]he 'right to use counsel at the formal trial [would be] a very hollow thing [if], for all practical purposes, the conviction is already assured by pretrial examination.'" (93)
Justice Stevens also believed that "there are ethical constraints that prevent a prosecutor from giving legal advice to an uncounseled adversary," (94) and that "the Miranda warnings themselves are a species of legal advice that is improper when given by the prosecutor after indictment." (95) Justice Stevens noted that "there are good reasons why such advice is deemed unethical" (96):
First, the offering of legal advice may lead an accused to underestimate the prosecuting authorities' true adversary posture.... Second, the adversary posture of the parties, which is not fully solidified until formal charges are brought, will inevitably tend to color the advice offered.... Finally.... advice offered by a lawyer (or his or her agents) with such an evident conflict of interest cannot help but create a public perception of unfairness and unethical conduct. (97)
Patterson, therefore, is significant both as a firm turn away from Jackson's hint at a broad Sixth Amendment and as a sign of the Court's view that counsel does not play an especially valuable role during post-charge interrogations. Nevertheless, Patterson likely has affected many defendants minimally, since in many jurisdictions defendants are appointed counsel promptly after a formal charge, leaving little practical window of opportunity under Patterson. (98) In McNeil v. Wisconsin, (99) however, the...
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