Sixth Circuit Holds that a Suspect Invoked his Right to Counsel when he Wrote “No” to the Question “Having these rights in mind, do you wish to talk to us now?”
Anthony Scott was detained on suspicion of robbery in Memphis, Tennessee. He was provided an Advice of Rights form which informed him, among other things, of his right to speak with an attorney and to have an attorney present when answering questions. The form then asked “[h]aving these rights in mind, do you wish to talk to us now?” to which Scott wrote “no.” Since “these rights” referred to, among other things, the right to counsel, Scott’s answer of “no” had to be interpreted as a refusal to proceed without counsel.
On May 28, 2008, Anthony Scott was arrested near a recently robbed auto parts store in Memphis, Tennessee. Officers of the Memphis Police Department suspected that Scott was responsible for robbing the auto parts store as well as a string of other recent robberies in the area.
After Scott was apprehended, he was taken to the Memphis Robbery Bureau, where Detective Tony Taylor Mirandized Scott. Scott was also provided an Advice of Rights form which read:
“You have the right to remain silent. Anything you say can be used against you in a court of law. You have a right to have a lawyer, either of your own choice, or court appointed, if you are unable to afford one; and to talk to your lawyer before answering any questions; and to have him with you during questioning, if you wish. Do you understand each of these rights I've explained to you? Having these rights in mind, do you wish to talk to us now?” A space to write a written response was provided after each of the two questions.
Scott was given the opportunity to provide a written response to the questions and he wrote one-word answers on the Advice of Rights form, indicating “yes” he did understand his rights and “no” he did not wish to speak to the police at that time.
Questioning ceased and Detective Eric Hutchison transported Scott to Bartlett Jail. Scott testified that before being transported, Detective Hutchison said, “[w]e're going to take you to another jail until you ready to say something, and we will come back and get you tomorrow and see if you ready then.” Scott would later claim that he had verbally requested to speak to an attorney, while Detective Hutchison denied that Scott made such a request and that in fact, as Scott was entering the transport vehicle, Scott said to Hutchison “[h]ey, look, I know I need to talk to y'all, I just can't do it right now, let me get my head together, and I will talk to y'all later.”
The next evening, May 29, 2008, Scott was transported from Bartlett Jail back to the Robbery Bureau. Scott was again presented with an Advice of Rights form and this time answered “yes” to both questions. Scott then made statements to the police, confessing to various robberies, but not to the May 28 robbery. He was returned to Bartlett Jail. On May 30, Scott was again taken from Bartlett Jail to the Robbery Bureau and presented him with the Advice of Rights Form. He again answered “yes” to both questions and he subsequently confessed to a number of other robberies.
In the United States District Court for the Western District of Tennessee, Scott moved to suppress the confessions he made at the Robbery Bureau. Scott claimed that he had verbally requested a lawyer, but had been refused, while Detective Taylor claimed that such a verbal request had not been made. The district court denied the motion and Scott was tried before a jury and convicted of sixteen counts of robbery, attempted robbery, and the use of a firearm in connection with those crimes.
Scott appealed his conviction to the United States Court of Appeals for the Sixth Circuit, arguing that he had clearly invoked his right to counsel. The court of appeals found the district court had made a valid ruling that Scott had not, in fact, verbally requested to have an attorney present when speaking with Detective Taylor. However, the court of appeals found that when Scott wrote “no” in response to the question “Having these rights in mind, do you wish to talk to us now?” he was in fact invoking his right to counsel, since “these rights” referred, among other rights, to the right to counsel.
As the court of appeals explained: “The Advice of Rights form identifies several rights, including the right to counsel. The form then references the right to counsel—along with several other enumerated rights—in the written question: ‘Having these rights in mind, do you wish to talk to us now?’ Specifically, among the rights enumerated are the rights ‘to talk to your lawyer before answering any questions’ and ‘to have him with you during questioning.’ Both of these rights involve Scott's access to a lawyer, and both also relate to speaking with police. By requesting a response that bears ‘these rights in mind,’ the form elicited a response about Scott's desire to speak with police ‘now’ despite his right to counsel; with this right in mind, Scott indicated he did not wish to speak with the police.” In other words, the Advice of Rights form essentially asked Scott, among other things, if he would like to make a statement without speaking to his lawyer or having his lawyer present, to which he said no, thus unambiguously invoking the right to counsel.
The court of appeals found persuasive guidance from a decision by the United States Court of Appeals for the Fourth Circuit, which, in United States v. Johnson, 400 F.3d 187, 196 (4th Cir. 2005), held that a defendant had invoked both his right to remain silent and his right to counsel when he wrote “no,” in response to the question, “Do you want to make a statement at this time without a lawyer?”
The court of appeals went on to explain that if there was any ambiguity in Scott’s response, it arose from the ambiguous nature of the Advice of Rights card, and an ambiguity created by the Government could not be used against Scott, noting that they “refuse to fault the defendant for any ambiguities—intentional or otherwise—created by the Government.” Johnson, 400 F.3d at 196.” Moreover, the court of appeals, relying on Supreme Court precedent, found that they should “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Michigan v. Jackson, 475 U.S. 625, 633 (1986).
The court of appeals thus reversed the district court’s finding that Scott had not invoked his right to counsel. The court of appeals also noted, however, that it was possible that Scott could have waived his right to counsel after invoking it if he initiated further discussion with police. Since the record was unclear as to whether Scott or the officers had initiated subsequent conversations on May 29 and May 30, 2008, the case was remanded to resolve the ambiguity.
The case, United States v. Scott, can be found here.