Defendants Right to Counsel in Jeopardy Thanks to Washington Appeals Court

Defendants Right to Counsel in Jeopardy Thanks to Washington Appeals Court

It looks like the Appellant Court Of Washington has struck another blow to the rights of DUI defendant’s, as well as other charged with a crime who have the ability to invoke their right to counsel. Only this time, it is Division Two of the Appeals Court that has seen fit to erode another constitutional right, two right to be precise; The right to counsel and the right to confront witnesses. However, this second violation in this case, the right to confront will be addressed in the future, given the unintended length of this analyses.


It looks like the Appellant Court Of Washington has struck another blow to the rights of DUI defendant’s, as well as other charged with a crime who have the ability to invoke their right to counsel.  Only this time, it is Division Two of the Appeals Court that has seen fit to erode another constitutional right, two right to be precise; The right to counsel and the right to confront witnesses. However, this second violation in this case, the right to confront will be addressed in the future, given the unintended length of this analyses.

This past week the case of State v. FEDOROV was published.  Being published is different than the date if a case is issued.  Many cases are issued by the higher courts, but they are issued under 1 of 2 conditions: published and unpublished.  When a case is issued it is deemed to be a “published” case or an “unpublished” case.  In this particular case, the case was issued sometime ago in July, but it was unpublished.

When a case is unpublished it has not precedential value-in fact lawyers in Washington are not permitted to cite to the case because they have no binding value, and why that is the case is a blog unto itself.  But for now, know that the case was issued as an unpublished decision which was nice given the effect it would have had, but now that feeling of relief of it being unpublished is replaced with dread as it has been determined that it is worthy of being published.  Worthy of being a case of precedential value.  While the case is not worthy of such value in my opinion, it was in the eyes of Washington Prosecutors Association (WAPA).

Of course they wanted it published, it eliminates constitutional barriers that lowers the bar for them and makes it easier to obtain convictions because the possibility of evidence being eliminated/suppressed because of Constitutional protections, is now gone in the area of the “right to counsel,” and the “right to confront witnesses.”  The rights to counsel and confrontation, are both Constitutional rights, freedoms, and protections –but not if accused of DUI!

Division Two essentially found that If a officer cop says he didn’t hear, or overhear, any of the conversation with an attorney, it must be true.  This is the case even if the facts show that such a statement is ludicrous.  Consider the facts to this case:

Trooper Durbin called the Department of Assigned Counsel, and Fedorov spoke by phone to attorney Nicholas Andrews with Trooper Durbin present. Andrews twice requested complete privacy," but Trooper Durbin did not leave the BAC room because he could not observe Fedorov from outside the room. Trooper Durbin later testified that he would walk to the other side of the room when requests for privacy were made, and an arrestee " would have to be speaking pretty loud for me to be able to hear." Verbatim Report of Proceedings But Fedorov testified he felt that Trooper Durbin could hear his statements to Andrews. The room measured 27 feet by 19 feet.

Among the questions I have is why the trooper moved back to Fedorov such that he had to make a second request for privacy?  The answer is painfully, obvious, because he was eavesdropping the conversation.  At least the defense attorney realized this and testified that:

Fedorov that he did not have a commercial driver' s license or any DUI charges within the previous 7 years. Andrews advised Fedorov of his right to refuse a breath test, as well as the administrative and criminal consequences of refusal. Fedorov was " free to ask questions," but because of Trooper Durbin' s presence, Andrews felt unable to ask open -ended questions about Fedorov' s drinking before the arrest.

The analyses of this issues is fairly straight forward, yet despite this, the Appeals Court side stepped the issue and the case law to date.  Before we look at how consider the following:

The right to counsel is protected by the fifth and sixth amendments of the Constitution of the United States and by Amendment 10, Art. 1, sec. 22 of the Washington State Constitution.  In recognition of the import of the constitutional right to counsel, Washington courts have jealously and repeatedly guarded the right of an accused to have access to counsel.  Indeed, the very language of CrRLJ 3.1(c)(2) clearly states that once counsel has been requested, the officer must provide the suspect with a telephone, the telephone number of the public defender and any other means necessary to place the suspect in communication with a lawyer.

The right to counsel extends to all criminal proceedings involving possible jail time.  CrRLJ 3.1(a).  Moreover, violation of the right to counsel has consistently resulted in dismissal of criminal charges.  State v. Cory , 62 Wash.2d 371, 382 P.2d 1019 (1963); City of Tacoma v. Heater, 67 Wn.2d 733; 409 P.2d 867 (1966); City of Seattle v. Box, 29 Wn. App. 109; 627 P.2d 584 (1981); State v. Fitzsimmons, 93 Wn.2d 436; 610 P.2d 893 (1980).  Once a lawyer is contacted, it is universal that effective representation of counsel, to which the defendant is entitled under the state and federal constitutions, includes right to confer with counsel in private. U.S.C.A.Const. Amends. 5, 6Const. art. 1, § 22; Amend. No. 10; Cory, supra, at 374; reaffirmed State v. Granacki, 90 Wash.App. 598, 959 P.2d 667 (1998).

In Cory, the Washington Supreme Court dismissed the criminal conviction of the defendant because of eavesdropping by the sheriff on the defendant’s consultation with his attorney.  The unanimous court stated:

It is also obvious that an attorney cannot make a full and complete investigation of both the facts and the law unless he has the full and complete confidence of his client, and such confidence cannot exist if the client cannot have the assurance that his disclosures to his counsel are strictly confidential.

Id.   The Cory Court further opined that:

The constitutional right to have the assistance of counsel, Art. I, § 22, carries with it a reasonable time for consultation and preparation, and a denial is more than a mere abuse of discretion; it is a denial of due process of law in contravention of Art. I, § 3 of our consulation.

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While our research and that of diligent counsel and amicus curiae have not disclosed a Washington case which speaks of the right of a defendant to confer with his counsel in private, it is universally accepted that effective representation cannot be had without such privacy. The cases are annotated in 23 A.L.R. 1382 and54 A.L.R. 1225, and numerous citations are listed in the supplements to these annotations. 

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We think it is further true that the right to have the assistance of counsel is so fundamental and absolute that its denial invalidates the trial at which it occurred and requires a verdict of guilty therein to be set aside, regardless of whether prejudice was shown to have resulted from the denial.

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Not only was the conduct of the sheriff's office in violation of the constitutional provision assuring the right to counsel, but also of the statutory law, RCW 5.60.060(2), which establishes that communication between an attorney and his client shall be privileged and confidential.

Id., at 373-377.

Clearly, the Constitutional guarantee of effective representation by counsel loses its substance if a suspect is not permitted to speak freely and in confidence with his lawyer.

The Cory court went on to observe that it would not be an answer to say that the accused cannot complain of the interception of his telephone conversations with his counsel if he had on other occasions ample personal consultation with his lawyer, face to face, which no person overheard.  That fact would not erase the blot of unconstitutionality from the act of intercepting other consultations. Id. at 375.  The Cory court concluded that depriving a suspect of his right to effective counsel vitiates the whole proceeding.

The Granacki court dismissed where a police detective read defense counsel’s notes at counsel table during a break. Even though the officer did not communicate what he saw to the prosecutor before the defense motion for mistrial, the Granacki court described the police eavesdropping on a defendant’s private communications with his attorney as “an odious practice” and incorporated Cory’s language:

[t]hat a defendant cannot receive effective representation unless he is able to confer with his attorney in private.  It notes that intrusion by the State into a defendant’s privileged communications with counsel violates not only the defendant’s right to effective representation by counsel, but his right to be protected against unreasonable searches and to due process of law. Even high motives and zeal for law enforcement cannot justify spying upon and intrusion into the relationship between a person accused of a crime and his counsel.  Where the state intrudes on a defendant’s right to effective representation by intercepting privileged communications between an attorney and his client, the only adequate remedy is dismissal.  This is because there is no meaningful way to isolate the prejudice resulting from such interference . . . the right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.

Id., at 602, 603. (discussing Cory).

Unreasonable denial of right to counsel deprives the rule of its substance. Box, supra, 29 Wn. App. 109 (1981).  In Box, the defendant had been allowed to speak at length with his attorney on the telephone while at the police station, but when the attorney came to the police station he was erroneously told that the defendant was no longer present.  The court specifically held that:

A criminal defendant’s constitutionally mandated right of access to counsel after arrest and charging for a traffic offense where intoxication is an element must allow for the reasonable exercise of that right if it is to have meaning.  To give a defendant access to counsel by telephone, but then, without justification, to deny or frustrate his exercise of that right in seeking a face-to-face contact with his attorney, robs the right of substance.

Id., at 116.

More recently the right to counsel was found to be critical in DUI arrests under the Supreme Courts procedural rule of CrRLJ 3.1.  “State court rule providing for the advisement of the right to counsel immediately upon arrest goes beyond the constitutional requirements of the Fifth and Sixth Amendments of the United States Constitution.”  State v. Templeton, 148 Wash.2d 193, 59 P.3d 632 (2002). In DUI cases rule governing accrual of a defendant's right to counsel requires that while in custody a suspect must be advised of the right to counsel and provided access to counsel in order that the suspect may determine whether to submit to the blood alcohol concentration (BAC) breath test, arrange for alternative testing, and present other exculpatory evidence such as video and disinterested third party witnesses. Id., at 212. 

In short, the Court provided substance to the right to counsel at a time when the right to counsel would not normally attach until the critical stage had passed and citizen’s had actually been cited.

That was the case in City of Seattle v. Koch, 53 Wash.App. 352, 767 P.2d 143 (1989). 

The state in Fedorov seized upon this case but failed to recognize how distinguishable it was from the case at hand, as well as failed to recognize the application of Templeton. 

In Koch, the Court reversed the lower court’s dismissal, and affirmed the failure to dismiss of the other case (two cases consolidated for appeal).  In both of the lower courts persons were arrested and spoke to an attorney.  In both of those cases, defendants spoke with an attorney while law enforcement remained in the room, or was outside the room but on the other side of an open window.  At the outset of the ruling the Court noted that “Neither Koch nor Hanson bases her contentions on the Washington State Constitution, art. 1, § 22 (amend. 10), so we do not address whether any state constitutional right to counsel had accrued.” Id., at 355, footnote 5(emphasis added). 

As a result the Courts analyses was pursuant to the less protective federal standard and held that since the defendant’s were relying upon the Arizona case of State v. Holland 147 Ariz. 453, 711 P.2d 592 (1985) the right to counsel under the Federal Constitution was limited and was NOT triggered until a citation was actually issued.  Specifically the Court held that “Here the record reveals that both Hanson and Koch had been arrested for driving while intoxicated, but had not yet been cited when each asked to speak to an attorney prior to having her breath tested. Thus, no federal constitutional right to counsel had yet accrued.”  City of Seattle v. Koch, supra, at 355.

In the Fedorov case the defendant sought suppression under the more protective Washington Constitution vis-à-vis the meaningful right to counsel for DUI arrestees created by and given meaning to by the highest State Court.  A right that is unreasonably denied, is a right without substance as held in Box,supra, but additionally,  a right without substance is a meaningless right.  The Supreme Court created right to a meaningful consult with his lawyer.  A conversation that is not private is not a meaningful consult as the presence of law enforcement who was able to hear his words, despite trying not to, effectively eviscerates privacy and the right itself.

But the appeals court in Fedorov’s case found the officer to be credible-that he did not hear 1 side of the conversation and therefore private conversation was held.  The court totally misses the point-what a officer can actually hear, and what the Defendant thinks is heard really does not matter.  The very presence of the officer in the room violated the right.  Consider a consult in an attorney’s office that is 19x27-and the arrested person is discussing the case with the actual arresting office in the room-is this private?  Is this counsel in private?  Of course not!  There are numerous cases on file, published and unpublished where a person accused rape, murder, and robbery, where officer’s are likewise in the room, or somehow invading in the Defendant’s space and the Court routinely finds that such behavior, (even though they heard nothing, or say they heard nothing) chills the right. 

It is the circumstances that are affecting the right such that it cannot be freely exercised that is the problem.  The analyses is not one which should ask was it “actually” violated, because the right must be freely exercised without threats, fear, or compromise of the right.  In order to maintain the integrity of the process, the sanctity of the right, and the freedom to exercise it without compromise the Courts must rule on these cases without splitting hairs but that will never happen in the DUI arena.  When it comes to upholding and protecting the right of this accused of DUI the Courts are reluctant to do so.