Blurring the line: impact of offense-specific Sixth Amendment right to counsel.

• Author: Minas, Melissa
• Position: Supreme Court Review

Texas v. Cobb, 532 U.S. 162 (2001).

1. INTRODUCTION

   In Texas v. Cobb, (1) the Supreme Court held that the right to counsel as provided for in the Sixth Amendment to the United States Constitution (2) attaches only to charged offenses, and there is no exception for crimes that are uncharged, yet "factually related" to a charged offense. (3) In a 5-4 decision, the Court reasoned that a suspect's Constitutional rights do not override the government's interests in being able to investigate related crimes, (4) and that the suspect's rights are sufficiently protected by reading him his Miranda warnings. (5) In addition, the Court held that the test set out in Blockburger v. United States (6) should be applied to determine whether offenses should be considered the same offense for purposes of the Sixth Amendment. (7) Generally, the Blockburger test states that if a different fact is needed to prove the offenses, then they cannot be considered the same offense. (8)

   This Note argues that although the decision in Cobb follows past Supreme Court decisions, (9) the Court failed to recognize the impact this decision would have in obliterating the Sixth Amendment right to counsel. (10) Further, this Note examines issues raised by the dissent that could have potentially impacted the Court's decision or that may have implications in the future. (11) In addition, this Note considers that the Court imposed the rule with a purpose of increasing the ease of applying the Sixth Amendment right to counsel, instead of choosing a standard with exceptions that would ensure fairness and protection of the accused's rights. (12)

2. BACKGROUND

   1. HISTORY AND PURPOSE BEHIND THE RIGHT TO COUNSEL

      The right to counsel has arisen out of two different Constitutional Amendments. (13) The right is explicitly stated in the Sixth Amendment to the U.S. Constitution: "In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." (14) In addition, the right has arisen from case law interpreting the provision in the Fifth Amendment which states, "No person ... shall be compelled in any criminal case to be a witness against himself." (15)

      From the beginning of the cases discussing the Sixth Amendment right to counsel, there has been a tension between protecting the accused's Constitutional rights and allowing the authorities the leeway they need to investigate crimes. (16) Throughout much of the history of the right to counsel jurisprudence, the majorities generally expanded the scope of the right to counsel to protect the rights of the accused. (17) However, beginning in 1988, the focus of the Supreme Court switched from protecting the interests of the accused to facilitating the government's interest in investigating crimes through conversations with the suspect. (18)

      The history of the Sixth Amendment right to counsel can be traced back to Massiah v. United States, which was decided in 1964. (19) In that case, the petitioner and a co-defendant were charged with possession of narcotics aboard a United States vessel. (20) After being charged, the co-defendant agreed to cooperate with government agents and allowed a conversation with the petitioner to be monitored. (21) During this conversation, the petitioner made incriminating statements that were admitted in the petitioner's trial, resulting in his conviction. (22) The Court held that allowing those statements was a violation of the Sixth Amendment and that the statements should have been suppressed. (23) However, even at this early date, the dissenters were urging that the right to counsel had extended too far, since the accused was never denied access to counsel. (24)

      Two years later, the Supreme Court decided the most significant case to discuss the Fifth Amendment right to counsel, Miranda v. Arizona. (25) In doing so, the Court held that statements obtained from defendants who were not fully warned of their Constitutional rights were not admissible because they violated the Fifth Amendment right to be free from compelled self-incrimination. (26) The overriding policy behind this decision was to respect the dignity and integrity of United States citizens. (27) As a consequence, if a defendant indicates to investigators that he would like to speak to an attorney, the questioning must then stop, and the defendant can refrain from answering any more questions without an attorney being present. (28)

      The next important case discussing the Sixth Amendment right to counsel was Brewer v. Williams (29) in 1977. In Brewer, the defendant was charged with abducting a child, who was still missing at the time of his arrest. (30) After his arrest and arraignment, the defendant was represented by counsel in both Davenport and Des Moines, Iowa. (31) While the defendant was being transported from Davenport to Des Moines, unaccompanied by an attorney, one of the police officers continually made remarks regarding the right of the parents to have a Christian burial for the child. (32) Because of these remarks, the deeply religious defendant (33) eventually made incriminating statements and led the police officers to the girl's body. (34)

      Relying on Massiah, the Supreme Court stated that Williams was entitled to counsel under the Sixth Amendment. (35) However, the issue was whether Williams voluntarily waived this right to counsel. (36) When the state court decided that Williams had waived this right, it relied on the length of time of the trip, the general circumstances, and the fact that Williams did not assert a desire not to speak without counsel. (37) However, the Supreme Court found that the supposed waiver was not an intentional relinquishment of his right to counsel and granted him a new trial. (38) The Court, however, declined to hold that the Sixth Amendment right to counsel could not be waived, only that it had not been waived in this situation. (39)

      Brewer was controversial, eliciting a concurrence and two separate dissents. Chief Justice Burger authored the most significant dissent and stated that, although following Massiah would suppress all evidence obtained in violation of the Sixth Amendment, a blanket exclusionary rule should not be adopted. (40) Evidence should only be suppressed when the conduct of the police officers is so egregious that use of the evidence would "imperil the values [of] the Amendment." (41) Justice White's separate dissent also stated that excluding the testimony in this case expanded the Sixth Amendment too broadly. (42)

      The next case dealing with the right to counsel was Edwards v. Arizona--however, this case dealt with the Fifth Amendment right to counsel. (43) The Court said that in order for a suspect to waive his Fifth Amendment right to counsel, the waiver must be a "knowing and intelligent relinquishment or abandonment of a known right or privilege," (44) and the defendant must be the one to initiate the conversation or exchange with the police. (45)

      Although there were no dissents in Edwards, the concurring justices would not put such stringent requirements on waiver in different factual scenarios. (46) Chief Justice Burger stated that the dispositive fact in this case was that the police told the suspect he "had" to speak with the officers, and therefore his waiver was not voluntary. (47) However, Chief Justice Burger also stated that the determination of a valid, voluntary waiver depends on the facts and circumstances of each individual case, "'including the background, experience, and conduct of the accused.'" (48) Justice Powell, with whom Justice Rehnquist joined concurring, stated he would not impose the requirement that contact be initiated by the accused in order to waive the right to counsel. (49)

      The Supreme Court next addressed an issue that dealt with the Sixth Amendment right to counsel in 1985. (50) The specific issue in Maine v. Moulton was whether the Sixth Amendment right to counsel was violated when statements made by the defendant to a codefendant, who was cooperating with the police, were admitted at trial. (51) The Court held that the State violated the Sixth Amendment by "knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent." (52) The incriminating statements obtained in this manner should not have been allowed into evidence. (53) In the opinion, however, the Court alluded to the offense-specific nature of the right to counsel by stating that the statements could be admitted in a prosecution for charges for which the adversary proceedings had not yet begun, but they could not be admitted in the trial for crimes that the defendant had already been charged with. (54)

      This case also marked some of the strongest language in support of the policy behind the right to counsel. (55) The Court stated that the average criminal does not have the professional legal skills to protect himself, (56) and therefore the right to counsel under the Sixth Amendment is "indispensable to the fair administration of our adversarial system of criminal justice." (57) The state thus has an affirmative obligation to respect the accused's choice to have counsel, (58) but the Sixth Amendment is not violated when the State obtains a confession by luck or coincidence. (59) In addition, the State's interest in gathering information should not be frustrated by the attachment of the Sixth Amendment when the defendant has not yet been charged. (60)

      The dissent was authored by Chief Justice Burger, and joined by Justices White, Rehnquist, and O'Connor in part, (61) who are essentially the majority in Cobb. (62) They would impose a standard that, if there was a legitimate reason for the questioning of the defendant, then there would be no Sixth Amendment violation. (63) They also stated that they did not want the Sixth Amendment to unnecessarily protect criminals who are charged with multiple offenses, (64) and they did not want to broaden the...