# Schade v. State

> Alaska Supreme Court · July 27, 1973 · 512 P.2d 907

URL: https://www.frixlaw.com/law-library/cases/9544444

## Case

- **Full name:** Charles S. SCHADE, Appellant, v. STATE of Alaska, Appellee
- **Court:** Alaska Supreme Court
- **Decided:** July 27, 1973
- **Citations:** 512 P.2d 907; 1973 Alas. LEXIS 322
- **Precedential status:** Published
- **Opinion:** Concurring in part by Rabinowitz
- **Judges:** Erwin, Rabinowitz, Connor, Erwjn, Boochever, Fitzgerald
- **Cited by:** 71 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9544444

## How later opinions describe it (automated extraction)

- concluding that mental illness is one of several factors which must be weighed in determining whether a confession is voluntary
- explaining legislature’s amendments to M’Naghten rule

## Opinion text

*921 RABINOWITZ, Chief Justice
(concurring in part and dissenting in part).
I concur in the majority’s reversal of Schade’s conviction and in the majority’s resolution of all issues raised in this appeal with the exception of the adequacy of the Miranda warning. In my view, the fatal defect contained in the warning given is found in that portion which reads, “We have no way of giving you a lawyer, but one will be appointed for you if you wish, if and when you go to court.”
In Miranda v. Arizona, 1 the Supreme Court of the United States announced that in order to protect an individual’s constitutional privilege against self-incrimination in a custodial-interrogation setting, certain warnings must be given. One of the warnings which the court terms “an absolute prerequisite to interrogation” and one which must be “scrupulously honored,” is that an indigent who is the subject of custodial interrogation must be told that “he too has a right to have counsel present” during the interrogation, and that “if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.” 2 In the event a statement is taken without the accused having the assistance of court-appointed counsel during the interrogation then
a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. 3
In the case at bar, I am constrained to conclude that defect in the Miranda- warning given appellant precludes the possibility of holding that the state met this “heavy burden” of showing that Schade waived his privilege against self-incrimination.
In light of the particular wording employed by Lt. Henderson in advising Schade of his Miranda rights, I find the reasoning of Gilpin v. United States, 415 F.2d 638 (5th Cir. 1969), more persuasive than that of Mayzak v. United States, 402 F.2d 152 (5th Cir. 1968), which is relied upon by the majority. In Gilpin , the accused was given a Miranda warning which was, in its essential features, substantially similar to the warning given Schade. In Gilpin , the accused was told:
Before asking you any questions, I must explain to you that you can remain silent, that anything you say can be used against you in court, that you can talk to a lawyer first and that you have the right to the advice and presence of a lawyer even though you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if you go to court. Tf you want to answer questions now, you can do so but you can stop answering at any time. 4
Judge Wisdom, writing for the Gilpin Court, concluded that, “[T]his language did not indicate that Gilpin had a right to have an appointed counsel during the interrogation. Indeed, a fair interpretation of the detective’s statement is that Gilpin would be given a lawyer only if he should go to court.” 5 Thus, the Court in Gilpin concluded that the warning there in question did not conform to the standards set by Miranda and was therefore defective. 6
*922 In the case at bar, I believe that a similar conclusion is dictated. In my view, a fair reading of the warning given is that Schade would be provided with legal assistance only after he had appeared in court. This falls short of the standards set by Miranda. I would therefore hold Schade’s confessions inadmissible.
. 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).
. Id. at 471, 473, 478-479 , 86 S.Ct. at 1630 , 16 L.Ed.2d at 722, 723, 726 .
. Id. at 475 , 86 S.Ct. at 1628 , 16 L.Ed.2d at 724 .
. Gilpin v. United States, 415 F.2d 638, 639 (5th Cir. 1969).
. Id. at 640-641 .
. The reasoning of Gilpin has been paralleled in the following decisions treating Miranda right to counsel warning questions : See Lathers v. United States, 396 F.2d 524, 532-533 (5th Cir. 1968) ; Sullins v. United States, 389 F.2d 985 , 988 n. 2 (10th Cir. 1968) ; Fendley v. United States, 384 F.2d 923 (5th Cir. 1967) ; Brooks v. State, 229 A.2d 833 (Del.1967) ; Wilson v. State, 44 Ala.App. 570 , 216 So.2d 741, 743 (1968).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9544444. Public record. Not legal advice.