SJC: Police Must Convey Messages From Attorneys To Suspects In Custody

The conviction of a Massachusetts murder defendant was recently overturned by the Massachusetts Supreme Judicial Court, for a rather interesting reason. That reason centered on a suspect’s constitutional right to counsel while in police custody.

The defendant, Jerome McNulty, was arrested by Salem police on the morning of March 29 2001, for the murder of his girlfriend. The time line of what followed was key to the SJC’s decision to overturn the conviction: Upon McNulty’s arrest, he was read his Miranda Rights. A custodial interrogation was then conducted at approximately 9:12 AM, by a Salem detective and a state police sergeant. The interrogation took a break at approximately 10:00 AM. The defendant had told police when he was arrested that he did not have funds for an attorney, and at approximately 10:27 AM, an attorney was appointed to represent him. That attorney repeatedly called the Salem police station, asking to speak with McNulty, but he was told that the defendant was unavailable. On one occasion when the attorney called the police station back, he was told by a booking officer – the very same booking officer that had booked McNulty – that she could “neither confirm nor deny” the defendant’s presence at the police station. In other phone calls the attorney made to the station in attempting to speak with the defendant, the attorney was told that he’d have to speak with the department’s public information officer, and was transferred only into that officer’s unattended voice mail. In each and all of the attorney’s phone calls to the police station, he repeatedly asked police staff to pass along a specific message to the defendant: Do not say anything to police investigators.

Clearly, the police officers involved were engaged in an orchestrated effort to prevent any messages from the attorney, ultimately getting to the defendant. The defendant ultimately did not receive the attorney’s phone messages until 10:45 AM, and by that time had already signed a statement essentially admitting to the murder. The attorney arrived shortly thereafter, and was prevented from seeing the defendant for an additional 20 minutes while police investigators wrapped up getting the defendant’s signed statements.

The defendant’s attorney filed a motion to suppress the defendant’s post-arrest statements to police as violating his constitutional right to counsel, but Superior Court judge David Lowy denied the motion. The statements were admitted into evidence, and the defendant was convicted at a Superior Court jury trial. The question before the SJC: Were those post-arrest statements properly admitted at trial, given the fact that police investigators failed to pass along repeated messages from the defendant’s attorney, to not speak with police investigators until the attorney’s arrival?

According to Justice Margaret Botsford, who wrote for the majority of the five justices hearing the case, the answer is “No”. (It should be noted that two of the seven justices on the court were not present at this argument, hence only five voted.) Botsford wrote that under a prior decision the SJC rendered in 2000, Commonwealth v. Mavredakis, the police were required to apprise a defendant of communications from his attorney, if those communications directly affected his right to counsel. The court’s majority found that the messages that McNulty’s attorney had asked be given to McNulty, related directly to McNulty’s right to counsel. Because the attorney’s specific instructions on this point were not relayed by police to the defendant, the defendant’s subsequent agreement to continue to speak with police, and to sign a statement without his lawyer present, did not constitute a knowing or intelligent waiver of his right to counsel.

Justice Ralph Gants wrote a strong dissent to the majority opinion. Gants wrote that while the police do have a duty to inform a suspect in custody of an attorney’s efforts to render assistance, they are not obligated to do anything more than that. “The [majority] appears to believe that this (ruling) is not a new addition to the ‘duty to inform’, but it is.” “We have never before declared that the ‘duty to inform’ includes a duty to communicate an attorney’s specific legal advice to a suspect.”

A spokesman for the Essex County District Attorney’s office said, “Given the significant change in the law as a result of this decision, we believe the case should be heard by a full panel of all seven judges. In this case, two judges were not present, and there was a strong dissent.”

As a Boston Massachusetts criminal defense lawyer, I can certainly see why both sides to this argument feel very strongly. To those who feel this decision weighs too heavily in favor of defendants’ rights, I’d ask that you consider this question: Does the constitutional right to counsel represented in the Miranda Rights effectively mean anything, if an attorney’s advice to a suspect is deliberately (or even accidentally) blocked by police before an attorney arrives to meet his client? Think about it.