Criminal Procedure: Duty to Inform and Waiver of Miranda

Criminal Procedure:  Law Enforcement’s Duty to Inform Defendant of Counsel is Ineffective UNLESS Complete

Commonwealth v. McNulty (Slip Opinion) available here: http://www.suffolk.edu/sjc/archive/opinions/SJC_09669.pdf

Holding: When counsel for a defendant calls a police station during a defendant’s custodial interrogation and instructs law enforcement: (1) to inform the defendant that he is represented; (2) to tell the defendant that he want to speak to him; (3) to instruct police to inform defendant NOT to speak; and (4) to inform defendant he would be there shortly, a waiver of Miranda rights is ineffective because it will not be knowing and intelligent UNLESS defendant is informed of EVERY instruction that Counsel conveyed, and not merely a general statement informing the defendant that an Attorney called for him.

Why Important?  McNulty requires law enforcement to convey specifically what counsel wants the defendant to know, including an instruction to remain silent.  Failure to do so and failure to allow immediate contact with the defendant renders any subsequent statements inadmissible. 

Practice Pointer: Counsel, when calling a police department to contact the defendant during questioning, must explicitly inform police to convey to the defendant the instruction to remain silent and any other critical information – failure by law enforcement to do so almost certainly renders any subsequent statements and any waiver of rights inadmissible.

Facts of the Case:

Police took the defendant, Jerome McNulty, into custody for the murder of his girlfriend in the morning. A custodial interrogation was conducted at 9:12 a.m. After a break at 10 a.m., the interview resumed 15 minutes later. At 10:27, an attorney was appointed to represent the defendant. He immediately drove from Boston to the Salem police station to meet with his client. According to his phone records, he called the police station a few minutes after being appointed and identified himself as the defendant’s attorney but was not allowed to speak with the defendant. After a second call and a lapse of about ten minutes he relayed the following message: “to tell the defendant not to talk to the police and that he would be there shortly.”

The Essex County first assistant district attorney told the police to tell the defendant that an attorney had been appointed to represent him and wanted to speak with him. The defendant had finished his statement and was reviewing a hand-written summary of what he had said when he was told he could end the interview and speak with his attorney. The sergeant then spoke to the defendant, informed him of the appointment of counsel and said it was his choice whether he wanted to stop the interview or continue speaking to the police. The defendant said he wished to keep talking to the officers. At 10:52 a.m., he acknowledged with his signature “that the statement accurately reflected what he had been told concerning Attorney Buso.” From 10:52 to 11 a.m., the officers read the statement to the defendant and had him sign it. When Buso arrived at the station at 11 and asked to speak to the defendant “right away,” the sergeant denied the request, stating that “he had informed [the defendant] that an attorney had called and that he had passed the message on that [Buso] asked him to, and that [the defendant] wished to continue talking.” It was not until about 20 minutes after his arrival that Buso was permitted to speak to his client. That meeting occurred 50 minutes after he first contacted the police. Superior Court Judge David A. Lowy declined to suppress the statement. The defendant was eventually found guilty of murder.  The Supreme Court reversed and rendered the statements inadmissible.

Court’s Reasoning

The majority’s reasoning was based on an earlier decision, Commonwealth v. Mavredakis, which requires that police adequately inform defendants of communications from his attorney that bear on the right to counsel. The court concluded that the communications here were exactly that type. The attorney’s communications were a set of instructions for the defendant relating to his right to counsel. The failure by the police to communicate them made his Miranda waiver ineffectual.

Be on the lookout for an appeal:

Justice Gants wrote a strong dissent opposing the majority opinion. Notably, the case was heard by only five of the seven SJC justices; two of the justices who were in the four judge majority are no longer on the court. The district attorney indicated he would appeal for a re-hearing by the entire court. The majority’s opinion substantially broadens the duty to inform standard. A comment which focused on the substance of the duty to inform and analyzed the trio of cases the majority and dissent discuss would be very interesting.

Wassem M. Amin

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