although police initiated interrogation, court stated that “the critical question remains unresolved on this record: was [the defendant] represented by [an] attorney . . . within the meaning of Patterson, Moulton, [United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980)] and Massiah [v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964)] at the tíme he gave his . . . statement to the police?”
How later courts described this case
- although police initiated interrogation, court stated that “the critical question remains unresolved on this record: was [the defendant] represented by [an] attorney . . . within the meaning of Patterson, Moulton, [United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980)] and Massiah [v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964)] at the tíme he gave his . . . statement to the police?”
- appointment of counsel amounts to a request for counsel which invokes Sixth Amendment bar to police-initiated interrogation without counsel present
- "[O]nce counsel has been `accepted by appointment' in a criminal case, the sixth amendment bars police-initiated interrogation of the accused except through arrangements with defense counsel"
- appointment of counsel is equivalent to a request for counsel under Jackson
Written by the judges who cited it.
The opinion
PRYOR, Senior Judge,
concurring:
This case presents the question whether the return of an indictment, and the assignment of counsel, creates a circumstance, notwithstanding warnings pursuant to Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), which precludes police conversation with an accused, unless the person initiates the contact and singularly waives the right to counsel.
In a series of decisions touching this area, the Supreme Court has yet to resolve this precise issue. In Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981), the Court, in the context of Fifth Amendment protections, held that an accused, having asserted his right to remain silent, is not subject to further interrogation unless he initiates some further communication. In a case where the accused was indicted, released on bail, and represented by counsel, the Court, in Maine v. Moulton, 474 U.S. 159 , 106 S.Ct. 477 , 88 L.Ed.2d 481 (1985), focused on the Sixth Amendment right to counsel, and concluded that, unless expressly waived, the accused in such circumstances has a right to have his attorney present at any confrontation with the police or their agent. Drawing closer to the case at bar, the Court, in an instance where the defendant requested an attorney at arraignment, Michigan v. Jackson, 475 U.S. 625 , 106 S.Ct. 1404 , 89 L.Ed.2d 631 (1986), ruled that police may not initiate questioning of a person where the assistance of counsel has previously been asserted and not waived. Lastly, the Court most recently approved the post-indictment interview of an individual where the accused, in the face of Miranda warnings, did not request counsel, retain a lawyer, nor rely upon an appointment of counsel by the court. Patterson v. Illinois, — U.S. ——, 108 S.Ct. 2389 , 101 L.Ed.2d 261 (1988).
Thus far the decisions emanating from the Court make it clear that an accused is entitled to the assistance of counsel at post-indictment interviews with law enforcement authorities where the right is asserted.
This case reflects a situation where an indictment was returned and an attorney assigned. It is unclear, prior to questioning, whether appellant ever met or accepted the attorney. It is clear that, after Miranda warnings, he did not claim the right to counsel. Thus, in these circumstances, the majority opinion interprets the Supreme Court decisions — cases markedly different on their facts — and finds a violation of the Sixth Amendment.
I do not. I conclude that the warnings given in this instance were adequate and thus do not apply a harmless error analysis.