When the Supremes decided in Maryland v. Shatzer that 14 days was long enough for a defendant’s invocation of right to counsel to shield him from the police, was this what they had in mind?  Via the Arizona Republic :

Last year, Apache County Attorney Michael Whiting hired Brian Hounshell as a criminal investigator despite the fact that Hounshell, the former county sheriff, had been convicted of felony theft in a public corruption case. Earlier this year, Hounshell visited the suspect in jail and, without notifying the man’s attorney, pressed him to plead guilty or face a possible death penalty.

Hounshell had been the county sheriff until he was convicted of fraud, theft and misuse of funds.  Whiting decided that this would make the former sheriff the perfect choice to handle “complex” matters for him.  After all, who knows felons better than a member of the club?

Whiting decided to send Hounshell on a mission of mercy, to go visit accused murderer, 23 year-old Joseph Roberts, in jail.

In February, before a preliminary hearing, Hounshell visited Roberts in jail without notifying the defense lawyer. According to a transcript of the conversation, Hounshell urged Roberts to waive his rights and accept a plea offer for 25 years in prison. Otherwise, Hounshell warned, “It will be a tougher road for you. . . . If you take the risk of a life sentence or lethal injection . . . that is something you’ll have to deal with.”

Hounshell also advised the inmate, “We haven’t charged your wife yet. So that’s another situation you may be dealing with at a later date.”

According to Hounshell, he wasn’t there to coerce Roberts or undermine his right to counsel.  He was just trying to help.

During a hearing the next day, the White Mountain Independent reported that Hounshell claimed he had visited Roberts out of sympathy, not to intimidate the defendant.

“I intended to help him. That’s what I wanted,” Hounshell said.

And what would have made County Attorney Whiting believe that he had the authority to send former sheriff Hounshell into the jail to speak with a represented defendant?

In an interview this week, Whiting said that a U.S. Supreme Court ruling last year allows police in some circumstances to privately interview criminal defendants who are represented by counsel. Based on that, Whiting said, he instructed Hounshell to deliver a jailhouse message to Roberts.

Whiting said he was concerned that defense attorney David J. Martin of Lakeside had not fully advised Roberts of the plea offer. Martin did not return phone calls.

No wonder.  When the prosecutor doesn’t get a timely return call from defense counsel, there’s clearly a good reason to believe that he’s got to send his top man into the jail to protect the defendant from making a bad choice.  And of course, now that the Supremes say it’s perfectly fine to ignore the 6th Amendment, what could possibly be wrong about it?

Superior Court Judge Donna Grimsley, however, didn’t bite on the mission of mercy argument.  Not only did she hold that this was a flagrant violation of Roberts’ right to counsel, but she disqualified Whiting’s office from prosecuting Roberts.  The case will be handled by an outside prosecutor.

The County Attorney’s claim, that the Supreme Court’s decision (which I presume to be Shatzer though the report doesn’t identify the case upon which Whiting claims to rely) permits the prosecution to circumvent defense counsel and go directly to the defendant is, in a sense, absurd.  But then, it requires a fairly nuanced reading to differentiate between the purpose for which the cops can speak directly to a defendant while ignoring his invocation of right to counsel.

What can’t be undone, regardless of the strong decision by Judge Grimsley, is the damage caused by the content of the “discussion” between Hounshell and Roberts.  This could have significantly undermined the defendant’s confidence in his lawyer and his ability to defend against the charges. 

The judge can disqualify the prosecutor, but she can’t clear the coercive nature of the communications from his head.  While it doesn’t appear that the defendant has lost the will to fight in this case, at least not from the article, it would be almost impossible for Roberts to not be influenced by Hounshell’s statements, particularly about his wife being charged. 

According to the story, a state bar complaint has been filed against County Attorney Whiting, though it doesn’t state whether it’s by Judge Grimsley or someone else.  Hopefully, this complaint will be taken seriously and significant sanctions will be imposed for this facile attempt to claim the Supreme Court’s decision permits the prosecution to simply circumvent the criminal defense lawyer and screw with the defendant. 

But I can’t help but wonder, with the Supremes doing as much as possible to undermine the limited safeguards available, whether situations like this will give them pause to believe that the preservation of a defendant’s constitutional rights are safe when left in the hands of prosecutors.

H/T Packratt at Injustice Everywhere