New York Court Says Denying Access To A Lawyer Somehow Isn’t A Constitutional Violation
If a shackled suspect asks to speak to a lawyer and this request is ignored, is that a violation of their rights? Cops - especially the ones in this case - would likely say No." Cops don't consider themselves legal experts because having any legal expertise makes it more difficult to hassle people over imagined criminal acts.
Normally, courts would say Yes." The New York State Court of Appeals somehow says No." And it says no" in the most disinterested fashion, spending less than a page [PDF] affirming the trial court's conclusion. (h/t Sam Feldman)
Here, there is support in the record for the lower courts' determination that defendant-whose inquiries and demeanor suggested a conditional interest in speaking with an attorney only if it would not otherwise delay his clearly-expressed wish to speak to the police-did not unequivocally invoke his right to counsel while in custody. That mixed question of law and fact is therefore beyond further review by this Court (id.; see Mitchell, 2 NY3d at 276). Defendant's remaining contentions are without merit.
The other 17 pages are the dissent. And it explains just how wrong both this court and lower court are. The interrogation was recorded and the dissent's transcript shows the arrestee asked to speak to a lawyer multiple times. And he was ignored multiple times by the detective questioning him. Here's what happened in the interrogation room (all emphasis in the original):
The Detective then read a set of standard Miranda rights to Mr. Dawson, including the right to counsel. After that, the questioning proceeded as follows:
Detective: Do you understand each of your rights?"
Dawson: Yeah, definitely. I just wish that I'd memorized my lawyer's number. He's in my phone. Is it possible for me to like call him or something?"
Detective: Do you want your lawyer here?"
Dawson: Right now?"
Detective: Yeah."
Dawson: If I could get a hold of him cause I don't know his number; it's in my phone."
Detective: OK."
Dawson: But you could still tell me what's going on though, right?."
Detective: No, I can't talk to you if you if you want your lawyer here and you already said you did, so let's, you know what, let's give him a call."
Dawson: And if he don't answer then can you come talk to me?"
Detective: No."
Dawson: So what happens if he don't answer?"
Detective: Ah, I mean, we'll, we'll deal with that if it happens. Let's hope he answers. I mean, from the sound of it, it sounds like you understand your Miranda rights and you want your attorney."
Dawson: [Inaudible]
Detective: Is that, am I understanding that correctly?"
Dawson: Well, yeah, I just, to be honest I just really want to know what's going on, you said something about [not discernable], you know, I don't know what the hell happened, what incident happened. I just really want to know what's going on. That's pretty much it."
Detective: OK."
Dawson: That's all."
Detective: OK. So just hang, hang tight for a minute, OK? We'll get your phone, we'll go from there."
Somehow this did not result in the detective giving Dawson his phone or allowing him to contact his lawyer. The detective did not make any effort to contact Dawson's lawyer on his behalf. Instead, the detective did this:
When the detective next entered, he sat down and said, Here's the deal, I'm just going to ask you flat out, because we're in the middle of this and this is something we could potentially resolve - do you want your lawyer here or do you want to just figure this out?" Mr. Dawson replied, I really just want to figure this out." The detective administered Miranda warnings again and Mr. Dawson agreed to speak to police.
After a right is invoked, it stays invoked. It can't be un-invoked just by taking a short break and trying again to seek consent. Re-reading Miranda rights doesn't reset the clock or somehow erase the previous conversation - the one in which the detective himself made it clear he understood Dawson wanted to speak to his lawyer - from existence.
Only at this point did the detective finally tell Dawson why he'd been arrested. More pressure was applied, culminating in the detective suggesting Dawson write an apology letter to the crime victim in order to appear more contrite." A jury later convicted Dawson on sexual abuse charges.
The dissent says Dawson unequivocally evoked his right to representation.
As is clear from the quoted portion of the colloquy with the detective, he twice said he wanted to call his lawyer, and the detective twice expressly stated that he understood Mr. Dawson had asked to call counsel and therefore the detective could no longer speak to Mr. Dawson. Additionally, the detective then told Mr. Dawson to wait while the detective retrieved Mr. Dawson's phone so he could call counsel.
Mr. Dawson's statements do not inquire if having a lawyer would be a good idea, nor do they merely inform the police that Mr. Dawson may consult a lawyer or that he has a lawyer retained for a different matter (cf. Rowell, 59 NY2d at 730; Hicks, 62 NY2d at 970; Mitchell, 2 NY3d at 276). Rather, in response to being read his Miranda rights, and asked if he understood those rights, Mr. Dawson said that he had a lawyer and asked if it would be possible to call that person, whose number was located in his (confiscated) personal phone.
That's an invocation of rights. That can't be undone just by taking a quick lap around the precinct and heading back into the interrogation room. Once the right is invoked, it can only be revoked by the requested legal rep. All of this was ignored - not just by the detective, but by two consecutive courts.
That's unacceptable, the dissent says. All this decision does is raise the invocation bar impossibly high, turning anything with a hint of doubt or deference into a free pass for cops to ignore suspects' rights. That's not what the court should be doing.
The People argue that if our Court were to recognize Mr. Dawson's request that police call his lawyer as what it was - a request for his lawyer - the rule would mark the end of police interrogation. If so, that would transpire only because any competent lawyer would have told Mr. Dawson to remain silent, as is his constitutional right. This Court has the power to advance police interrogation by eroding, and eventually wiping away, the right to counsel, but should we?
Unfortunately, it's the majority that makes the rules. The dissent can make good points but it's the 5 of 7 Appeals Court judges who think both a suspect and detective coming to the same conclusion about legal representation somehow isn't a clear evocation of rights. Good luck, defendants. Your Sixth Amendment rights don't mean much in the state of New York.