A relational Sixth Amendment during interrogation.

• Author: Holland, Brooks

1. INTRODUCTION

   [L]awyers in criminal courts are necessities, not luxuries. (1)

   Ever since the U.S. Supreme Court trumpeted the Sixth Amendment right to counsel in Gideon v. Wainwright, (2) our legal culture has extolled the value of this right in ensuring a fair criminal trial. (3) Yet, a "fair trial" implicates much more than the trial itself, particularly since the vast majority of today's criminal cases--90% or more--are resolved by negotiated disposition rather than trial. (4) Defendants thus rarely face their accusers during traditional courtroom proceedings that pit skilled trial lawyers against each other. Instead, defense attorneys determine most clients' fate through telephone calls, meetings, and investigations, and by advising a client effectively on how properly to limit the scope or strength of a prosecution, all to achieve the best disposition possible. (5) Increasingly, the assistance of counsel during a criminal prosecution occurs in pretrial contexts where, after a charge has been filed, (6) preemptive legal advice is imparted, damage is minimized, and bargains are struck.

   Perhaps in no pretrial context can this advice of counsel matter more than during an interrogation, (7) where cases and deals often can be won or lost. (8) Yet, the U.S. Supreme Court's current right to counsel jurisprudence profoundly minimizes the importance of the attorney-client relationship during post-charge, pretrial interrogation. For example, notwithstanding the Court's view that a post-charge interrogation constitutes a "critical stage," thus entitling a defendant to appointed counsel, (9) the Court has undermined the real-world import of this ruling by holding that the Sixth Amendment right to counsel, even once attached, is not self-actuating and thus can be waived in the absence of counsel. (10) Further, the Supreme Court largely gutted the notion that counsel's constitutional value to a client extends beyond the four corners of the charging instrument when the Court declared that the right to counsel is "'offense specific,'" (11) with offense defined narrowly under the Blockburger double-jeopardy test. (12) The practical consequence of these holdings is that law enforcement easily can work around an existing attorney-client relationship to question a charged defendant about nearly anything, up to and including the precise factual subject of filed charges. (13)

   This Article examines and critiques this Sixth Amendment right-to-counsel jurisprudence, focusing on the Supreme Court's failure to establish Sixth Amendment rules that recognize and protect the necessary professional relationship that attorney and client share in a criminal case. (14) To frame this discussion, Part II.A of the Article surveys the Supreme Court's right-to-counsel jurisprudence in the interrogation context, culminating in the Patterson-Cobb framework, and highlights the debate within the Court over the function that defense counsel serves under the Sixth Amendment.

   In Part III, this Article distills the Court's Sixth Amendment jurisprudence to its core: a general apathy towards--if not outright disdain for--the real-world professional value of defense counsel during an interrogation. This view of counsel's role in this context has led the Court improperly to gauge Sixth Amendment problems by a counter-textual freewill theory of client decision-making imported from Fifth Amendment Miranda jurisprudence. This emphasis on free-will in the Sixth Amendment context is wholly disconnected from the counsel whose assistance the Constitution assures to guide defendant decision-making, resulting in precisely the sort of unequal footing between established adversaries that the attorney-client relationship is meant to counterbalance. (15)

   In Part III.C, this Article presents an alternative "relational" model for the right to counsel. I argue that this alternate model properly takes the concept of a defendant's free will from the Fifth Amendment Miranda context, and conditions its exercise in the Sixth Amendment context on the promised assistance of counsel if the subject or setting of interrogation intrudes into that attorney-client relationship or necessitates that relationship to preserve equal footing between established adversaries. This model, I argue, correctly conceptualizes the right to counsel in relational terms of attorney and client, not attorney and offenses. (16)

   Part IV of this Article considers the potential for competing state-law models of the right to counsel. Part IV.A examines the New York State model of the right to counsel, which predates Patterson and Cobb and differs markedly from this federal model, protecting the attorney-client relationship in a manner similar to what this Article proposes. The New York model thus will be highlighted in particular as similar in form and function to a relational model of the Sixth Amendment. Part IV.B surveys how state courts thus far have treated and applied Cobb: so far, courts have treated it modestly, although some questions remain in certain jurisdictions that have left open the possibility of competing state law approaches to the right to counsel during interrogation.

2. A PRIMER ON THE SIXTH AMENDMENT RIGHT TO COUNSEL

   1. AN INTRODUCTION

      The Sixth Amendment to the U.S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." (17) This right was "intended to minimize the public prosecutor's tremendous advantage" over lay-persons in matters of law and procedure. (18) By the early twentieth century, the Supreme Court had "construed this [amendment] to mean that in federal courts counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived." (19) But as the Court embarked on its incorporation doctrine, folding rights "implicit in the concept of ordered liberty" into the Due Process Clause, (20) the Court truly began to examine the role that counsel plays in our system of justice. (21)

      In the landmark 1963 decision of Gideon v. Wainwright, (22) the Supreme Court declared:

      [I]n our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided to him. This seems to us to be an obvious truth.... [L]awyers in criminal courts are necessities, not luxuries. (23) The Court since Gideon consistently has reaffirmed that the "right to the assistance of counsel ... is indispensable to the fair administration of our adversarial system of criminal justice," (24) because it "safeguards the other rights deemed essential for the prosecution of a criminal proceeding." (25)

      Yet, the generalized "right" to counsel recognized in Gideon did not fix the scope of a lawyer's representation to which the Sixth Amendment entitles a defendant* For clearly, when that right attaches, "[i]t cannot be invoked once for all future prosecutions." (26) But, the Court has not accepted that the right exists only when counsel appears at some formal proceeding along with the prosecutor. (27) As a result, the Supreme Court has devoted much energy to refining when and to what extent a defendant must be afforded this "indispensable" assistance of counsel.

      The Supreme Court has determined that the Sixth Amendment right to counsel attaches when "a prosecution is commenced ... 'whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.'" (28) Prior to any actual trial, the right, once attached, applies only at a "critical stage" of the proceedings, which includes interrogations and lineups, for instance. (29) During such proceedings, "the State must of course honor [the right]," (30) meaning "the State [has] an affirmative obligation to respect and preserve the accused's choice to seek this assistance." (31) At a minimum, the "Sixth Amendment guarantees the accused ... the right to rely on counsel as a 'medium' between him [or her] and the State." (32)

      Law enforcement's obligation to honor counsel's role as a medium, however, frustrates one of its greatest interests in investigating crimes--questioning the suspect. (33) The Supreme Court has acknowledged that the "police have an interest in the thorough investigation of crimes for which formal charges have already been filed," (34) as well as "in investigating new or additional crimes." (35) But, the Court also has explained that "[i]n seeking evidence pertaining to pending charges ... the Government's investigative powers are limited by the Sixth Amendment rights of the accused." (36) "Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent." (37) For example, "the surreptitious employment of a cellmate (38) ... or) the electronic surveillance of conversations with third parties (39) ... may violate the defendant's Sixth Amendment right to counsel even though the same methods of investigation might have been permissible before arraignment or indictment." (40)

   2. JACKSON TO COBB: FROM A BROAD TO AN "OFFENSE SPECIFIC" RIGHT

      I do not propose to quibble with these general Sixth Amendment standards governing the right to counsel. These standards, however, do not resolve the ultimate question of whether, once the right has attached, the Sixth Amendment bars any law enforcement questioning of a defendant without counsel. For example, must a defendant assert his or her desire for counsel during post-charge interrogation before law enforcement must honor that right? Does the freedom of choice protected by Miranda warnings adequately protect Sixth Amendment interests? Once in play, does the Sixth Amendment right to counsel protect the attorney-client relationship, or is this protective right limited to the precise subject matter--filed...