People v. Raul Johnson
Factual background: Johnson was charged with burglary and attempted to obtain leniency by trading information he claimed to have about an unrelated stabbing. Johnson, with his lawyer present, signed a “Queen-for-a-Day” agreement in which he agreed to provide truthful answers to all questions put to him. In return, the People promised not to use any statement responsive to their questions as direct evidence against Johnson, except in a prosecution for perjury or contempt.
At the October 12, 2007 Queen-for-a-Day meeting, Johnson told police that his friend, Bajwa, had admitted to him that he stabbed a man in a supermarket. Police suspicions were aroused about Johnson’s involvement when Johnson told police that the stabbing had occurred when he was in jail, but records indicated that he’d been released from jail before the stabbing. Despite their doubts, the police asked Johnson if he’d agree to be “wired up” for a meeting with Bajwa, and Johnson agreed.
Johnson was released from jail in January 2008 with the People’s consent. On April 19, 2008 Johnson presented himself to police to be wired up for the meeting. Johnson’s lawyer was aware that Johnson would be meeting with the police, but did not believe that Johnson would be interrogated. The lawyer chose not to attend the meeting.
At the April 19 meeting, Johnson talked at length about the supermarket stabbing. His story changed several times, he became increasingly uncomfortable, and admitted that he was at the stabbing and had “punched” the victim. After further questioning, Johnson admitted that he’d stabbed the victim. Johnson was then Mirandized. No effort was made to contact Johnson’s lawyer. Johnson continued talking, eventually signing a typed statement admitting that he stabbed the victim. Although he was released after the interrogation, he was later arrested and charged with second-degree murder for the stabbing.
Issue: Whether the questioning of Johnson about the stabbing, without counsel present, violated his New York State indelible right to counsel?
Held: Judge Smith, writing for a five-judge majority, ruled that Johnson’s right to counsel encompassed his conversations with police about the stabbing, because those conversations were part of an effort to obtain leniency in the burglary case in which he was represented by counsel. Absent a waiver with the attorney present, the police should not have questioned Johnson.
CAL observes:The court’s opinion resolves the issue by answering two questions: first, because the stabbing murder was related to the burglary, the indelible right to counsel on the burglary extended to the stabbing. People v. Samuels, 49 N.Y.2d 218 (1980)(New York’s State constitutional indelible right to counsel means that the right to counsel cannot be waived in the absence of counsel). Second, even though counsel knew Johnson would be talking to the police about the murder, and counsel chose not to be there to protect his clients interests, giving them permission to speak with Johnson, the indelible right to counsel had not been waived.
Neither answer would appear so simple. The Court’s seemingly straightforward decision that the cases were “related,” avoids the thicket of complexities governing the subject of the indelible right to counsel, and whether the attachment of a defendant’s indelible right on one case extends to questioning on another. See, e.g., People v. Samuels, 49 N.Y.2d 218 (indelible right attaches upon the commencement of formal proceedings, whether or not the defendant has actually retained or requested a lawyer); People v. Skinner, 52 N.Y. 24, 26 (1980)(the right attaches where an uncharged individual has actually retained a lawyer in the matter at issue or, while in custody, has requested a lawyer in that matter); People v. Burdo, 91 N.Y.2d 146 (1997)(defendant in custody on a matter on which his indelible right to counsel has attached, may not be interrogated about any subject, whether related or unrelated to that charge); People v. Bing, 76 N.Y.2d 331 (1990)(but if a defendant with a pending charge on which the indelible right to counsel has attached is arrested on an unrelated charge, he has no indelible right to counsel on that new charge); People v. Lopez, 16 N.Y.3d 375, 383 (2011)(where it appears likely that defendant is represented by counsel, police have an obligation to make a reasonable inquiry into the status of that representation)
The court’s answer to the second question, as Judge Pigott points out in his dissent, is also not nearly so simple. Was it unreasonable for the police to conclude that , because counsel knew the police would be speaking with Johnson about the stabbing, and the attorney chose to allow that conversation to take place outside his presence, they had permission to have that conversation?