CCA continues assault on right to counsel- Hughen vs. State

Remember the right to counsel? In simpler times if you were in custody and asked for an attorney, the police had to wait for counsel to arrive before beggining their good cop/bad cop routine. Such antiquated rights like the 6th Amendment and Article 1 Section of the Texas Constitution are are being replaced with exciting new rights; like the right to be executed for an arson you didn’t commit based on junk science.

Today’s Court of Criminal Appeals Case of the day is…. Hughen v. State-

Facts– Hughen was arrested and charged with agg assault and attempted murder. Hughen was taken before a magistrate. During this time Hughen asked for a lawyer.

Undettered the police took Hughen to the interrogation chamber and had him sign a Miranda waiver. Hughen looked over the waiver form and, just before he signed the form, he asked. “This ain’t waiving my right for an attorney, is it?”
The cop replied, “No, sir. This is just talking with us about what happened and what was going on and all that good stuff.” Hughen then signed the waiver form.

Our CCA found that Hughen had waived the attorney he requested, and never received, in part based on the following exchange.

After Herrington explained to Hughen these rights, she asked him the following three questions and received his responses: (1) “Do you understand your rights, Jeff?” Hughen nodded in the affirmative. (2) “And understanding these rights, do you need to have a lawyer present before any questioning?” He answered, “I guess not right now, no.” (3) “Having these rights in mind, will you talk to me now?” Hughen answered, “Okay.”

“I guess not right now, no” would be an answer that a person without their lawyer would give. One of the things your defense lawyer will do is explain carefully why you should NOT talk to the cops. If you are in court you can’t waive rights without your attorney present. Shouldn’t the same protections apply to those in jail? But I digress.

The police proceed to get a confession. Hugen proceeds to get life and 20 years on the charges.

Wait a minute- Hughen sounds like he was guilty of some pretty bad stuff. Why should I care?

Good question. Upholding the rights of people like Hughen protects all of us. One of the reasons Texas routinely convicts the innocent is because we ignore basic Constitutional protections like the right to counsel. You would be shocked at how many people will confess under modern interrogations methods, even to crimes they did not commitT.

Worse, the police are allowed to lie and make up evidence that doesn’t exist, to get your “confession.” If a lawyer is present these games don’t work. That is why the police and prosecutors are fighting so hard to destroy your right to have an attorney present during questioning.

With this ruling I’m going to have to move my office into the jail to keep the cops from making a run at my client every chance they get. Thanks CCA.

On a side note- Hughen did get that court appointed lawyer he asked for, a week later.

There may be one context in which the right to counsel still applies, custodial interrogations. From the opinion-

After Montejo, the Sixth Amendment does not bar police-initiated interrogation of an accused who has previously asserted his right to counsel. On the other hand, the Fifth Amendment does bar police-initiated interrogation of an accused who, in the context of custodial interrogation, has previously asserted his right to counsel during such interrogation, unless the accused’s counsel is actually present. Minnick v. Mississippi, 498 U.S. 146, 153 (1990); Edwards v. Arizona, 451 U.S. 477, 484-85 (1981)

Remember kids, ask for a lawyer, then ask for a lawyer, then ask for a lawyer.