Rothgery, Right To Counsel, Blood Warrants

I just read the post on Grits about the Rothgery case. The opinion is 49 pages and I won’t have time to go through the whole thing today. However, the holding could have positive implications for shutting down the practice of DWI forced blood draw warrants.

“A criminal defendant’s initial appearance before a magistrate judge, where he learns the charge against him and his liberty is subject to restriction, marks the initiation of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel. Attachment does not also require that a prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in its conduct. Pp. 5–20.”

It’s not a far leap from that holding to ruling that when the police, prosecutors, and “friendly” judges team up to sign blood warrants that the defendant should have the right to an attorney. After all the prosecutor is involved, the defendant knows the charge against him, and that his liberty is subject is restriction. Yet another reason these blood draws should be unconstitutional.

And finally, Jon Bradley is already promoting a seminar to work around this ruling (and your 6th Amendment rights). Is anyone surprised? From JB

This case makes it even more important that law enforcement understand the advantage of noncustodial interviews. There will now clearly be no opportunity to interview at the jail following arrest, as a 6th Amendment attachment is much more difficult to overcome.

So, make plans to attend a regional seminar on Confessions this summer. Learn how to avoid the litigation of Miranda. See how easy it is to get a noncustodial confession that will be accepted by the court and jury.

Are there any TDCAA seminars where we don’t teach prosecutors how to work around the law? Really.