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Attorneys have no right to consult with witnesses


“It is not viewpoint discrimination to prefer prosecutors, family, and clergy over defense lawyers in a police station. The goal is not to throttle a disfavored viewpoint, but to devote the public building to the purpose for which it is maintained.”

Judge Frank H. Easterbrook
Seventh Circuit Court of Appeals

Attorneys have no First Amendment right to consult at a police station with clients who are acting as cooperating witnesses with the police, the Seventh Circuit held on Feb. 19.

Pursuant to the U.S. Supreme Court decision in Moran v. Burbine, 475 U.S. 412 (1986), a suspect in police custody does not have a constitutional right to be notified that his attorney is at the stationhouse. The suspect can request counsel and stop the interrogation, but police need not notify him about the lawyer’s whereabouts.

The City of Chicago applies to cooperating witnesses the same approach sustained in Moran for custodial interrogation – witnesses are not notified of attorneys’ presence and undergo interrogation without legal advice unless they request access to counsel.

First Defense Legal Aid, a group that provides legal services to the poor, brought suit against Chicago in Illinois federal court, challenging the practice.

According to district court findings, when a spontaneous request is made by a witness, the police attempt to discourage the contact, telling the witness either that he does not need a lawyer or that the fewer people know he is at the station, the better.

The court found that, only if the witness "insists" on counsel, nonetheless, is he permitted to communicate with an attorney. The district court held the practice unconstitutional and issued a permanent injunction, requiring the city to notify a witness as soon as an attorney arrives purporting to represent him. The injunction also compels the police to admit the attorney so that the notice can be given in his presence, and provides that he may confer in confidence with the witness.

The court did not base its holding on the witnesses’ rights, but held that the city’s practice violates attorneys’ rights under the First Amendment to associate with clients.
The City appealed, and the Seventh Circuit stayed the injunction and expedited the appeal. Reviewing the case on the merits, it reversed in a decision by Judge Frank H. Easterbrook.

No Association Rights

First Defense conceded that there is no general right of access, but contended that it possesses special rights of association with its clients, because if the witness cannot come out, then the lawyer must be let in.

The court concluded, however, "It is hard to reconcile this contention with Moran, for suspects are not free to come out yet need not be notified of counsel’s arrival.

Witnesses present an easier situation, for they are entitled to leave the police station and meet their attorneys outside (or anywhere else)."

In addition, the court found that the district court’s injunction extends beyond the attorney-client relation to attorneys who have not yet been engaged as counsel.

The district court had found that First Defense usually goes to a station at the request of a witness’ family or friends, something the Seventh Circuit found insufficient to create an attorney-client relationship.

The court reasoned, "an attorney is an agent, and there can be no agency without the knowledge and consent of a principal. It takes two to associate; a one-sided desire to counsel a witness does not create a protected ‘right of association.’"

The court acknowledged case law holding that, "when an attorney reasonably identifies himself and reasonably informs the police that he represents a suspect in custody, the police have no entitlement to make their own on the spot determination that the attorney does not lawfully represent the suspect."

Nevertheless, the court found no precedent for the proposition that an attorney’s say-so, or a friend’s invitation, actually creates an attorney-client relation.

With Friends Like These …

Furthermore, the court found that the "friends" who hire attorneys
for witnesses may not have their best interests at heart.

The court stated, "Friends may be particularly poor champions of witnesses, for professed ‘friends’ could be the very persons under investigation. Police and witnesses alike know that criminal organizations often retaliate against those who assist law enforcement. A legal rule entitling ‘friends’ to send lawyers to police stations, and compelling the police to admit them, could help these criminals determine who within the organization has switched sides, with potentially fatal results — for attorneys acting in the best of faith may enable the ‘friend’ to learn that a particular person has provided information to the police."

What the court held

Case: First Defense Legal Aid v. City of Chicago, et al., Nos. 02-3376 & 02-3389.

Issue: Does it violate an attorney’s First Amendment right of association, for police to refuse to tell a cooperating witness at the stationhouse that the attorney is available to advise him?

Holding: No. It is not viewpoint discrimination for police to limit witness access to those persons who will serve its purpose — enforcing the laws — while excluding those who may advise the witness not to cooperate.

Counsel: Locke E. Bowman, III, Chicago, for plaintiff; Paul A. Castiglione, Patrick T. Driscoll, Jr., Chicago, for defendant.

The court added, "although the district judge found that First Defense is above board, not all attorneys are honest. Some set out to assist criminal organizations, and the police thus may be right to counsel witnesses that the fewer people who know of their presence at the stationhouse, the better for their safety."

Rights and Remedies

The court then concluded that, even if there is a bona fide attorney-client relationship, the attorney still does not have a First Amendment right of access to see a cooperating witness at the stationhouse.

The court rejected First Defense’s contention that it has a preferred right of access because Chicago’s police mistreat witnesses. The district court had accepted this argument, finding that the police lock witnesses into Spartan rooms, sometimes holding them overnight against their will — and rarely informing the witnesses that they are free to leave.

The court concluded that no such advice is required, however, stating, "if a witness has turned into a suspect being held under custodial interrogation, then the witness is not free to leave (though Miranda warnings become essential); and if the witness is not in custody, then no advice of rights is needed."

The court reasoned, "if the police are violating the rights of some witnesses by holding them against their will, the right response is to award damages to the witnesses (or suppress evidence if the witness becomes a defendant and the prosecutor seeks to use the statement against him). When A’s rights are violated, the remedy runs to A; a court does not create some new constitutional right and award it to B. Yet that is First Defense’s theme: that because the police violate some witnesses’ rights, then lawyers receive extra constitutional rights. Not so. Each group enforces its own entitlements."

The court acknowledged, "Many of the witnesses incriminate themselves as well as (or instead of) third parties, and if prosecutors elect to charge them with crimes rather than reward them for assistance, they cannot invoke Miranda or any equivalent when seeking suppression of their statements."

Nevertheless, the court concluded, "Whether something (an exclusionary rule, an entitlement to damages, or a new norm of police conduct) should be done about this — legislatively, through the state judiciary, or as a matter of federal constitutional law — is not presented today, given that no witness is a party."

Lawyers’ Rights

The court then turned to whether attorneys have greater associational rights than the press, the public, and a witness’ relatives.

The court acknowledged that they must, because an attorney not only has the rights he holds personally, but also those he has an agent of his client. Nevertheless, the court concluded that an attorney has no relevant rights derived from witnesses, because the constitutional right to counsel attaches only with formal charges, and witnesses have no right to counsel under either the Fifth or Sixth amendments.

The court held, because even those actually in custody have no right to notice that a lawyer is at the door, neither can a witness.

Rejecting First Defense’s First Amendment argument, the court concluded, "First Defense seeks to counsel witnesses in private, and the practice of law under the protection of the attorney-client privilege is not part of the marketplace of ideas. Quite the contrary … What lawyers say in confidence to witnesses is covered by a privilege and will not play any role in public debate. So First Defense does not enjoy especially strong rights of access or speech."

The court then noted that an interrogation room is not a public forum, and cited two cases from other circuits holding that lawyers lack a First Amendment right of access to clients inside public buildings. Cuban American Bar Association, Inc. v. Christopher, 43 F.3d 1412, 1429 & n.21 (11th Cir. 1995); Ukrainian-American Bar Association v. Baker, 893 F.2d 1374, 1381-82 (D.C. Cir. 1990).

Viewpoint Discrimination

The court also rejected First Defense’s argument that, even if police can exclude everyone from the interview room, they may not discriminate based on viewpoint. First Defense maintained that is what Chicago does by excluding attorneys with the viewpoint that witnesses should know their legal rights, especially their right to stop talking, while permitting others who encourage the witness to cooperate, and discourage them from obtaining counsel.

The district court had found that the police permit relatives and clergy into the interview room to promote the witness’ cooperation, and held it unconstitutional viewpoint discrimination to exclude those who may advise witnesses not to cooperate.

Reversing this holding, the Seventh Circuit noted that lots of public agencies limit access to those private persons who advance their mission.


Seventh Circuit Court of Appeals

Related Article

Case Analysis

As examples, the court cited the exclusion from polling places of those who advocate boycotting the election, and the fact that public hospitals which perform abortions are not required to employ surgeons who refuse to carry out that procedure, or to notify women that representatives of Operation Rescue want to be admitted to talk them out of ending their pregnancies.

The court added, "A public hospital may welcome family members who will calm and comfort patients without obliging itself to give equal access to those who promote faith healing or other non-scientific approaches. … Likewise a police station may admit those who help it enforce the laws while excluding those who it believes have a different goal. … [I]t is not viewpoint discrimination to prefer prosecutors, family, and clergy over defense lawyers in a police station. The goal … is not to throttle a disfavored viewpoint, but to devote the public building to the purpose for which it is maintained."

Accordingly, the court held that attorneys have no right to have the police notify witnesses that a lawyer would like to visit them, and reversed the injunction issued by the district court.

Click here for Case Analysis.

David Ziemer can be reached by email.

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