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Univ. of South Carolina School of Law

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Thursday, June 4, 2009

Upon The Advice Of My Attorney: Attorney Argues Phone Call To Police Triggered Fifth Amendment Right To Counsel

A 17 year-old is shot and killed during an attempted robbery. In the hours after the shooting, the police arrest a 16 year-old suspect and begin questioning him regarding the crime(s). While the suspect is being questioned, a man is hired as the suspect's attorney (apparently by the suspect's family). The attorney calls the police and tells them that he has been hired to represent the suspect and that all questioning must cease. The police, however, continue to question the suspect, who makes incriminatory statements. The attorney later claims that all statements the suspect made after his call must be suppressed as they were taken in violation of his client's Fifth Amendment right to counsel. The attorney is most likely wrong.

The above facts are taken from a current case in Oneida County. On February 16th, 17 year-old Joshua Thompson was shot and killed during an attempted robbery. Police subsequently arrested 16 year-old suspect Anthony Ruffin and began questioning him about the robbery and shooting. While the police were questioning Ruffin, defense attorney Les Lewis contacted Utica police sergeant David Matrulli to advise him that he had been hired to represent Ruffin and that questioning should cease. The questioning, however, did not cease, and Ruffin eventually admitted that he shot Thompson although Ruffin alleged that the shooting was an accident. Lewis thereafter claimed, “I believe anything that happened after I called would be inadmissible at trial."

His argument, however, is not likely to find much success. In Moran v. Burbine, 475 U.S. 412 (1986), the Supreme Court was presented with similar facts. In Burbine, an attorney "retained" by a suspect's sister called the police station where the suspect was being interrogated and told a detective that the police would not be questioning the suspect and that they were through with him for the night. But the police were not done with the suspect for the night as they continued questioning him, and he eventually made incriminatory statements. After the suspect was convicted, he appealed, claiming, inter alia, that the police violated his Fifth Amendment right to counsel after his attorney's phone call. The Court of Appeals agreed, but the Supreme Court later reversed, finding that

[e]vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. Under the analysis of the Court of Appeals, the same defendant, armed with the same information and confronted with precisely the same police conduct, would have knowingly waived his Miranda rights had a lawyer not telephoned the police station to inquire about his status. Nothing in any of our waiver decisions or in our understanding of the essential components of a valid waiver requires so incongruous a result. No doubt the additional information would have been useful to respondent; perhaps even it might have affected his decision to confess. But we have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights....Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.

Thus, Lewis' claim is unlikely to be successful in court (Apparently, however, police denied Ruffin's mother access to him during the questioning, which could possibly lead to a different result, depending on the facts).

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/06/right-to-counsel-atty-callshttpwwwuticaodcomarchivex726822317judge-reviews-murder-suspect-s-police-interview.html

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