560 F.2d 652: Ira Nash, Jr., Petitioner-appellee, v. W. J. Estelle, Director, Texas Department of Corrections,respondent- Appellant

MORGAN, Circuit Judge, dissenting:

I respectfully dissent. This case falls squarely within the scope of the per se rule against waiver of the right to counsel established both in this court and in the United States Supreme Court. Even if the majority eschews the per se rule, clear unmistakable waiver has not been proved. The district court should be affirmed.

Although the law surrounding waiver is confused, a measure of order can be injected. After the right to counsel has attached, there are four distinct factual circumstances in which the issue of waiver arises, with distinctly different legal interests involved in each. Waiver problems can arise (1) pre-Miranda warning, (2) post-Miranda, pre-request for counsel, (3) post-request for counsel, pre-audience with counsel, and (4) post-audience with counsel.

The law is clear that waiver is not possible prior to the giving of Miranda warnings. All statements made by a suspect under investigation are excludable if Miranda warnings are not given. See, Miranda v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

In the three remaining scenarios, however, the legal impact of waiver is not clear. Informed, intelligent waiver should be permitted after Miranda warnings if the suspect has not, at any time, requested a lawyer. The Supreme Court in Miranda specifically addressed this circumstance:

Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.

384 U.S. at 444-45, 86 S.Ct. at 1612. Thus prior to any request by the suspect, waiver is possible as long as it is informed and intelligent. Allowing waiver in this factual situation only recognizes that no person should be forced to have an attorney; each person is the captain of his own destiny.

Waiver should be impossible, if after the Miranda warnings the suspect requests counsel, but thereafter recants, prior to having the opportunity of seeing counsel. A per se rule is not only needed under these circumstances, it is compelled by Miranda. The request followed quickly by waiver at minimum suggests confusion on the part of the suspect. At worst, such action suggests questionable conduct on the part of the interrogators. This situation was also specifically addressed in Miranda :

Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.

384 U.S. at 473-74, 86 S.Ct. at 1627-1628. In his concurrence in Michigan v. Mosely, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), Justice White recognized that this language created a per se rule:

The Court showed in the very next paragraph, moreover, that when it wanted to create a per se rule against further interrogation after assertion of a right, it knew how to do so. The Court there said "(i)f the individual states that he wants an attorney, the interrogation must cease until an attorney is present." . . . However, when the individual indicates that he will decide unaided by counsel whether or not to assert his "right to silence" the situation is different.

423 U.S. at 109-10, 96 S.Ct. at 329. In United States v. Priest, 409 F.2d 491 (5th Cir. 1969), this court recognized the applicability of the per se rule in the instant situation:

Where there is a request for an attorney prior to any questioning, as in this case, a finding of knowing and intelligent waiver of the right to an attorney is impossible. . . . (T)he suspect has an absolute right to delay interrogation by requesting counsel. If such a request is disregarded and the questioning proceeds, any statement taken thereafter cannot be a result of waiver but must be presumed a product of compulsion, subtle or otherwise.

409 F.2d at 493. The instant case falls precisely within this compelling line of authority and therefore the district court should be affirmed.

Under the circumstance in which the accused has requested counsel, has met with or had the opportunity to meet with counsel, but who then waives the benefit of counsel, waiver should be permissible. The suspect has benefitted from counsel at least to the extent of making an informed waiver of counsel's continued assistance. The suspect has had the opportunity of determining, for himself, counsel's prospective worth. If the suspect determines that further assistance of counsel is unnecessary, the law should give effect to that choice. Again, a lawyer cannot be forced on a suspect.

Not only is the per se rule compelled by authority, its use would facilitate the work of the police and the courts by providing certainty at a very sensitive juncture in the criminal process. The rule should not be abandoned.

Even if the Court does refuse to recognize the applicability of a per se rule against waiver in the present case, clear unmistakable waiver has not been proved. The burden rests on the government to prove waiver and that burden is "heavy." Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694. The purpose of Miranda was to minimize the use of official psychological coercion in interrogation. Such psychological coercion is certainly present in this case. Indeed, Files implied that Nash would lose some advantage if an attorney was appointed:

Files: Well, I can talk about it with you and I would like to, but if you want a lawyer, well, I am going to hold off, I can't talk to you. It's your life.

From the rest of the transcript, it is evident that not only was the suspect equivocal and confused concerning his rights but also that the official engaged in the type of subtle coercion that was condemned in both Miranda and Priest. Under the circumstances, it would be impossible to hold that the heavy burden of proving clear, unmistakable waiver was carried. The district court should be affirmed.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before BROWN, Chief Judges, and THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL, FAY and RUBIN, Circuit Judges.

BY THE COURT:

A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,

IT IS ORDERED that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.