Issue: Can the police question a suspect without his lawyer when the lawyer represented the suspect in a related proceeding but the lawyer tells the police that his representation in that related matter has ended?

 

Answer:  Yes says the majority (over the dissent of Lippman and Rivera).

 

Facts: A “part-time deputy public defendant” represented defendant in a 2003 robbery case.  In order to garner leniency in that case, defendant and his counsel tried to parlay information that defendant had about a murder to get a more lenient sentence.  Defendant admitted that the gun used in the murder was his and that he had disposed of the gun, though he denied involvement in the shooting.  During the conversation about the murder, defendant was represented by his attorney and his attorney conferred with him and advised him not to answer certain questions.  The prosecutors didn’t believe defendant.

 

Three years later, armed with information that defendant was the shooter, the detectives sought to question defendant.  They first asked his attorney whether that was alright and he reportedly said “go talk to him if you want,” “[t]he robbery case is over.”  The detectives did not specify that they wanted to talk to defendant about the murder case.  Subsequently, the detectives spoke to defendant where he was imprisoned on the robbery case.  They did not ask him whether he was represented by counsel.  Defendant confessed

 

Finding:  Normally, once an attorney enters a proceeding, a defendant cannot be questioned in the attorney’s absence, but here the attorney-client relationship had ceased.  The dissent would have found that the existence of the attorney-client relationship was ambiguous and, thus, questioning in counsel’s absence was inappropriate because the detectives did not mention the murder case to the attorney and did not ask defendant whether he was represented.

 

CAL Observes:  The narrowness of the holding in McLean was revealed less than two months later when the Court in People v. Raul Johnson (decided Dec. 14, 2014) found (5-to-1) in similar circumstances that the defendant’s right to counsel was violated by questioning him in the absence of his counsel.  The difference:  the lawyer in Johnson did not specifically assure the police that his representation was at an end.