Right to Counsel - need for a clear record of prior representation

In People v McClean, decided June 10th, the Court of Appeals held that, while right to counsel deprivations are normally reviewable even in the absence of an objection, the record must be clear that there was a deprivation, so a form of preservation requirement sneaks in through the back door.

Here, defendant had spoken to police - in the presence of counsel - about the homicide in question. Three years later, he spoke to them without counsel. The Court of Appeals questioned whether the prior counsel was really representing the defendant on the murder (in which he was a suspect), or merely on the robbery which prompted defendant to co-operate on the murder. The failure of the defendant to make clear at the Huntley hearing that the prior representation was on both matters rendered the question both unpreserved and unclear on the record because “we cannot say that no evidence the People might have presented would lead us to hold otherwise”. This is an interesting formulation, as we also cannot say that no evidence the People might have presented would lead a court to hold that two plus two is a fish stick dipped in custard. Three judges dissented, saying that the attorney who was talking to the police on behalf of the defendant about a homicide and a robbery was representing him on the homicide and on the robbery, and not acting as his lawyer on the robbery and as his personal masseuse and haberdasher on the homicide.

This case also stands for the proposition that if your client is a suspect in a murder, don’t take him to the police to talk about it.