Schmidt Law Services Blog

Lisa Schmidt

MI Supreme Court Undercuts Right to Attorney

Right to Attorney doesn't include the right to know one showed up.You are sitting in jail, being questioned by police. You assert your right to an attorney so they put you in a cell. After sitting there over night you decide to talk and ask for an attorney again. Your lawyer shows up, but is told to wait in the lobby while the police have you sign a Miranda waiver and make a confession. Is there a problem?

On June 23, 2014, the Michigan Supreme Court overturned 18 years of civil rights protections and gave a green light to police obstruction, all in one fell swoop. Claiming that a prior opinion by the same court was bad law, the Court struck down a ruling holding that when your lawyer shows up, you have to be told.

But not anymore. The court said that the former ruling grants more protection under the Michigan Constitution than the 5th Amendment of the U.S. Constitution without giving a legal justification for it. The Court disregarded the prior ruling’s extensive explanation of the risks of police misconduct and the need to protect suspects’ right against self-incrimination. Even though the Court itself recognized a lack of context behind the Michigan Constitutional Amendment, it held the prior opinion deficient in analyzing the historical basis for the law and the difference between the Michigan and US constitutional interpretations.

The problem is that, in doing so they also ignored a key difference between this case and those that went before: who called for the attorney. In each of the several prior cases the court considered, when the defendant got arrested a family member contacted the attorney. Because of this the Court said the defendants’ decision to make statements couldn’t be affected by what he didn’t know. But this new case was different.

The defendant here asserted his right to an attorney, twice. Yet when the court-appointed lawyer got to the jail he was told to wait in the lobby while the police questioned the defendant, and then was sent away without ever speaking to him. The court justified this action by the fact that the defendant eventually did sign a waiver of his Miranda rights, including the right to an attorney. Because the defendant was informed of his right, he clearly voluntarily surrendered it.

Except the defendant had no reason to expect his right would be respected this time when it hadn’t on two other occasions. He had asked for a lawyer the day before and not gotten one. Then that morning when he said he wanted to talk to the police he also asked for a lawyer, but never got to see one. For all he knew the police and the jail had denied him his right to counsel and the only way he would get out of jail was to sign the waiver and talk to them.

There are no rights without knowledge of those rights. By striking down the requirement that police inform defendants of their attorney’s presence, the court essentially struck down the defendant’s right to an attorney. The decision will only encourage the kind of shady behavior the police and jail used here to deprive prisoners of contact with their lawyers in an effort to coerce confessions from them.

With prisoners’ rights erroding at an alarming rate, it is more important than ever that you refuse to talk to police until you speak with an attorney and hold to that decision. There are steps a lawyer can take to get in to see you, but they can no longer undo statements you make in the meantime. If you know someone being questioned by the police, call attorney Lisa J. Schmidt immediately for a consultation.

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