EMBARRASSING SAGA OF NEW YORK'S DERIVATIVE RIGHT TO COUNSEL: THE RIGHT TO COUNSEL OF DEFENDANTS SUSPECTED OF TWO UNRELATED CRIMES, THE

St. John's Law Review, Winter 2006 by Raban, Ofer

INTRODUCTION

The story of New York's "derivative right to counsel" is the story of an intellectual failure, and possibly an ethical failure, on the part of New York's highest court. The "derivative right to counsel"-which extended the right to counsel of defendants who were represented by counsel on one offense, and were then questioned about another, utterly unrelated crime-was born out of a clearly mistaken interpretation of a 1979 case. The mistake was eventually recognized, and the doctrine overruled, in 1990; but the derivative right was soon reintroduced through a series of cases purporting to apply the very case which sought to eliminate it. The story is, at best, one of recurring bungles, both on the part of majority opinions and on the part of the opposing dissents. The result today is a legal regime which excludes reliable confessions from trials for no good reason, and favors dangerous recidivists over first time arrestees or people accused of minor crimes. It is an often-heard accusation, and a wholly unfounded one, that the criminal justice system coddles criminals; yet, in the derivative right to counsel, New York constitutional law does just that, and for no justifiable reason. It is high time for a re-examination of this area of our law, and for the final abolition of this unjustified constitutional doctrine.

The right to counsel under the Federal Constitution arises principally under the Sixth Amendment's right to counsel and the Fifth Amendment's right against self incrimination, and federal jurisprudence sees great significance in the distinction between the two sources.1 New York's right to counsel, however, is much fuzzier: New York courts habitually ground their determinations in the collective authority of the New York Constitution's right to counsel clause, the right against self incrimination, and the right to due process of law (probably because all three clauses are grouped together in Article I, Section 6 of the New York Constitution).2 This means that the analysis of a right to counsel claim under New York law can be quite different than an equivalent analysis under the Federal Constitution, and a direct comparison between the two may quickly turn confusing, if not impossible.3 Hence, the almost exclusive focus of this Article on New York law.4

The Article focuses on six leading right to counsel precedents and is arranged in a chronological order: Part I analyzes People v. Rogers.5 the case that inadvertently spawned New York's derivative right to counsel, and People v. Bartolomeo,6 the case that purported to borrow the derivative right to counsel from Rogers but which in fact single-handedly invented it; Part II examines how Bartolomeo and its invented derivative right to counsel were overruled by People v. Bing;7 Part III shows how People v. West8 misinterpreted People v. Bing; Part FV shows how People v. Steward9 misinterpreted People v. Bing in a different way; Part V examines the latest Court of Appeals authority on New York's derivative right to counsel, People v. Burdo,10 showing how it, too, misinterpreted People v. Bing; and Part VI concludes with a proposal to reinstall Bing, ignore West, reinterpret Steward, and scrap Burdo.

The road to today's derivative right to counsel has been paved with numerous judicial errors. This Article is a journey through those errors and an attempt to clear the path for the final elimination of the doctrine.

I. PEOPLE v. ROGERS AND PEOPLE v. BARTOLOMEO

New York constitutional law recognizes an "indelible" right to counsel-a right to counsel which defendants can waive only in their counsel's presence. This famous-for some, infamous"indelible" right attaches with the commencement of formal proceedings against the defendant, or when an attorney begins representing the defendant, or when the defendant requests an attorney.11 Thus, if a defendant is represented by an attorney regarding a certain criminal matter, and the police arrest him for questioning on that matter, the defendant cannot waive his right to counsel and answer questions without his counsel present. Any such waiver would be considered ineffective, and any statement made by the defendant could be suppressed at trial on the ground that it was obtained in violation of the defendant's right to counsel. Once the indelible right to counsel has attached, an effective waiver of the right to counsel can be made only in the presence of counsel (which is to say, rather rarely).

People v. Rogers involved a suspect who was arrested and taken to a police station for questioning about a robbery.12 After he was given Miranda warnings, Rogers told the police that he was represented by an attorney in regard to the matter for which questioning was sought, but that he was willing to answer questions in his attorney's absence.13 After a two-hour interrogation, during which Rogers denied any involvement in the crime, the police received a communication from Rogers' attorney requesting that they cease further questioning. Thereafter, the police asked no further questions about the offense for which Rogers was represented, but instead continued to question him regarding other alleged offenses-"unrelated activities in which he [in fact] had not participated."14 That questioning continued for approximately four more hours, during which time Rogers remained manacled. At last, Rogers uttered an incriminating statement concerning the robbery for which he was arrested and originally interrogated. At the trial for that crime, Rogers moved to suppress his statement on the ground that his right to counsel under the New York Constitution had been violated.15