Wednesday, January 18, 2006
Four circuits require police to give explicit advice to defendants that they are entitled to counsel during interrogation, as part of the Miranda warning, while four other circuits do not. In a recent Texas death penalty case, the 5th U.S. Circuit Court of Appeals, which has required since 1968 that the defendant be "clearly informed" of a right to a lawyer during interrogation, decided it wants it both ways.
The circuit court rejected the Miranda challenge in the habeas corpus appeal of Allen Bridgers, saying that detectives' advice that Bridgers had the right to consult an attorney "prior to" questioning was adequate to convey that he was entitled to have an attorney before questioning, "and that this attorney could remain during questioning," according to Judge Fortunado Benavides. Bridgers v. Dretke, No. 05-70020. But in a footnote, Benavides said that the circuit would continue to apply its 37-year-old precedent to direct appeals that "a suspect must be explicitly warned that he has the right to counsel during interrogation." U.S. v. Atwell, 398 F.2d 507 (1968)...The Atwell court stated that telling the accused that he or she is entitled to consult an attorney "at any time" does not comply with Miranda v. Arizona, 384 U.S. 436 (1966)...When Bridgers was arrested, an officer warned him, "You have the right to the presence of an attorney/lawyer prior to any questioning. Do you understand?" Bridgers indicated he did. He gave a tape-recorded confession that the defense sought to suppress based on the failed claim of an inadequate Miranda warning."
The court's mixed message of adhering to Atwell, while maintaing that the officer's pre-interrogation warning was adequate to convey that Bridgers was entitled to have an attorney prior to questioning, leaves the decision "as clear as mud." Story from the National Law Journal. . . [Mark Godsey]