On Wednesday, the Supreme Court granted an appeal in Michigan v. Tanner, and instructed the parties to address whether the 1996 decision, People v. Bender, should be overruled. Bender announced a "Michigan Rule," holding that police failure to inform a defendant that counsel has been retained and was attempting contact violated the state constitution and required suppression of statements made by the defendant after the point of the failure. Bender's lead author was Michael Cavanagh -- the only member still on the Court -- joined by Charles Levin, with separate concurrences by Conrad Mallett and James Brickley. The dissent was authored by Patricia Boyle, joined by Dorothy Comstock Riley and Elizabeth Weaver. Here's the explanation of the Michigan Rule from the lead opinion (footnotes and citations removed):
Under federal law, a waiver is knowingly and intentionally made where no police coercion was involved and where the defendant understands that he has the right to remain silent and that the state intends to use what he says to secure a conviction. We agree that those circumstances are a minimal prerequisite to a valid waiver; however, in Michigan, more is required before the trial court may find a knowing and intelligent waiver. We believe that in order for a defendant to fully comprehend the nature of the right being abandoned and the consequences of his decision to abandon it, he must first be informed that counsel, who could explain the consequences of a waiver decision, has been retained to represent him.
In the instant cases, the police failed to inform both defendants that counsel had been retained for them and that their respective attorneys attempted to contact them before making a statement. Thus, we hold that, on the basis of Const. 1963, art. 1, § 17, neither defendant Bender nor defendant Zeigler made a knowing and intelligent waiver of his rights to remain silent and to counsel, because the police failed to so inform them before they confessed. In so holding, we reiterate that our state constitution affords defendants a greater degree of protection in this regard than does the federal constitution.
If we were to hold otherwise, we would encourage the police to do everything possible, short of a due process violation, to prevent an attorney from contacting his client before or during interrogation. Once the suspect signed the waiver form, police could interrogate the suspect in isolation, without the assistance of his own lawyer, even if that lawyer is making an actual effort to consult with the suspect. To encourage this type of police behavior would undermine the safeguards we have established to protect the rights to remain silent and to counsel. If these rights are to mean anything, surely we must be adamant in our protection of them.
Additionally, we decline to adopt a totality-of-the-circumstances test in this situation, but instead adopt a per se rule. As the Supreme Court of Delaware stated in Bryan v. State,In evaluating the totality of the circumstances, a court makes a two-part inquiry. First, the waiver must have been voluntary—it must have been "the product of a free and deliberate choice rather than intimidation, coercion, or deception." Second, the waiver must have been made upon "a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." However, a purported waiver can never satisfy a totality of the circumstances analysis when police do not even inform a suspect that his attorney seeks to render legal advice. [ (Citations omitted) (emphasis added).]
"To hold otherwise would be to condone `affirmative police interference in a communication between an attorney and suspect.'" "When the opportunity to consult counsel is in fact frustrated, there is no room for speculation what defendant might or might not have chosen to do after he had that opportunity." The right to counsel becomes meaningless if a suspect cannot communicate with his attorney or can only speak with him after the suspect has given a statement. Thus, the inherently coercive nature of incommunicado interrogation requires a per se rule that can be implemented with ease and practicality to protect a suspect's rights to remain silent and to counsel.
Further, we do not limit this rule by requiring the attorney's physical presence at the police station. We agree that "[a] suspect has a right to know that his attorney wishes to see him whether that request comes over the police station counter, over the telephone, or via messenger." Further, we agree thatan attorney's diligence can manifest itself in ways other than showing up at the police station. In many situations, a phone call or messenger may well be the most efficient, effective—and most diligent—means of transmitting a message to a client. This is true, for example, when an attorney is (1) engaged in trial, (2) handling an urgent matter for another client, (3) located far from where the suspect is being detained, or (4) delayed by traffic or weather conditions. It is unreasonable to suggest that failing to appear in person indicates a lack of diligence on the attorney's part.
We recognize that the rule we announce today may decrease the likelihood that interrogating officers will secure a confession. However, this duty to inform is as necessary as other safeguards we have developed to protect a suspect's rights to remain silent and to counsel. As the United States Supreme Court stated in Escobedo:
No system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, these rights. If the exercise of constitutional rights will thwart the effectiveness of a system of law enforcement, then there is something very wrong with that system.
Justice Boyle's dissent, observing that the four justices in the majority could not agree on why the Michigan Constitution imposes a more stringent standard than the U.S. Constitution, said that majority overreached in its conclusion:
The lead opinion, without constitutional analysis or judicial support, declares by judicial fiat that "we believe that our state constitution affords defendants a greater degree of protection in this regard than does the federal constitution." Op. at 80. As Justice Cooley in his treatise explained over one hundred years ago:A constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have so changed as perhaps to make a different rule in the case seem desirable. A principal share of the benefit expected from written constitutions would be lost if the rules they established were so flexible as to bend to circumstances or be modified by public opinion.... What a court is to do, therefore, is to declare the law as written, leaving it to the people themselves to make such changes as new circumstances may require. The meaning of the constitution is fixed when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upon it. [Cooley, Constitutional Limitations, (6th ed.), pp. 68-69.]