Your Two Rights to Counsel and Inevitable Discovery

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

State v. Cawley, decided April 7th, is an appeal from a judgment of conviction due to evidence the defendant argues should have been suppressed and an excessive sentence. The defendant was convicted of numerous counts of kidnapping and sexual assault arising from an event that occurred between the night of August 20th, 2005 and the following morning. A woman named Maria went out with friends to celebrate the bachelorette party of her brother’s fiancée, Dawn. The celebrations turned into a night of heavy drinking in Manhattan and the group separated. Maria became very drunk and returned to Hoboken but was left for a few minutes on the sidewalk as another friend went to get water. Upon return the friend noticed that Maria was missing. The group of friends scoured the area and called Maria’s cell phone but couldn’t find her. Maria’s memory was substantially affected by her intoxication but she did remember waking up the next morning nearly naked in a strange house. Two men escorted Maria to their vehicle. One man drove as the other man raped her in the backseat. The vehicle pulled off the road and dumped Maria with only a bra to cover herself near an apartment complex. Maria eventually fell asleep on the pavement until delivery driver spotted her. At the hospital Maria appeared highly disturbed, had a BAC of .105, and a sexual assault examination revealed semen. The investigation went nowhere partly because Maria didn’t know her assailants and partly because her intoxication prevented her from remembering their characteristics clearly.

In 2007 an arson investigator searched the vehicle of Mr. Cawley’s codefendant in the subsequent case and found the drivers license of Maria. The codefendant’s DNA did not match the semen found in Maria but the investigation pointed towards Cawley. At first Cawley did not invoke his right to an attorney while being questioned but eventually he changed his mind. Even after requesting an attorney police continued to question Cawley and convinced him to submit to a DNA test. The DNA and semen were a match. It was also discovered that Cawley’s vehicle in 2005 was the same vehicle allegedly used in the rape, and an examination of his EZ pass account revealed that he was a mile away from the location where Maria was dumped around the same time she was dumped. Lastly, vehicle records showed that Cawley traded in his vehicle the day after the rape occurred.

5th and 6th Amendment and Right to Counsel

Both the 5th Amendment and 6th Amendment of the U.S. Constitution provide a right to counsel. The 5th Amendment allows someone to request an attorney before custodial interrogation and is often explained when someone is Mirandized. Even if an individual initially declines an attorney they can invoke their right at any moment. The moment an individual asks for counsel police are supposed to cease questioning that individual until they have the opportunity to speak with an attorney. The 6th Amendment right to counsel attaches after criminal proceedings (i.e. being charged) have begun against a defendant. But, an interrogation may well satisfy the ‘in custody’ requirement. Additionally, interrogation is defined as questioning meant to elicit an incriminating answer from the perspective of an objective police officer. In fact it doesn’t even have to be a question. In Brewer v. Williams, a famous Supreme Court case from the 1970s, it was held that officers interrogated a defendant when they made a “Christian burial speech” in order to evoke religious sympathy from the suspect by suggesting he should lead them to his victim’s body so she could have a proper burial. It is important to keep in mind that once a 6th Amendment right to counsel is evoked it attached only to the crimes for which the defendant is charged.

This means that if defendant A is charged with murder but during questioning he admits to an unrelated armed robbery he does so at his own risk and the 6th Amendment will not protect him.

In this case Cawley argues that because he made statements and offered a DNA sample after he invoked his right to an attorney such evidence should be thrown out as the fruit of an illegal investigation.

Inevitable Discovery Exception and Request for Council

The Court agreed that Cawley’s statements made after his request for counsel should be disregarded but not the DNA sample. This is due to the Inevitable Discovery Exception which applies when evidence would have been legally discovered anyway. Due to all the circumstantial evidence in this case–same car, EZ pass records, connection to codefendant, drivers license of victim–investigators would have inevitably been granted permission to conduct a DNA test. This case traverses many legal issues additional to those discussed today and will be addressed in blogs to follow.

Jeffrey Hark is a noted Sex Crime Attorney in New Jersey.

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