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Attorney’s Request to Be Present Did Not Invoke Miranda, CSA Holds

Attorney Steven D. Kupferberg tried to cover all the bases for his client, Nathaniel D. Marr of Seat Pleasant. First, he called Prince George’s County police, asking if a warrant had been issued for Marr’s arrest in an attempted murder investigation. And if there was an outstanding warrant, Kupferberg told the police, Marr would turn himself in so long as Kupferberg could be present during questioning.Then Kupferberg faxed the police a letter, confirming the conversation and asking the detective to not question Marr outside his presence.Although the detective didn’t inform the attorney, he knew there was a warrant out for Marr relating to the attempted murder of Kevin Jackson. Police detectives had “held” the warrant — that is, kept it out of their computer — specifically to “prevent the attorney from coming in and assisting the defendant,” they later testified.When Marr was arrested more than three weeks later, he was detained for more than 35 hours without a lawyer, interrogated for 14 hours and then confessed to the crime after signing away his Miranda rights.Yesterday, the Court of Special Appeals held that Marr’s right to a lawyer wasn’t violated.“Because appellant’s purported invocation, through his attorney, occurred before appellant was in custody, it could not operate to invoke his Fifth Amendment right to counsel,” wrote Judge James R. Eyler for the three-judge panel.Gary E. Bair, the chief of the state attorney general’s criminal appeals division, yesterday acknowledged that “it doesn’t sound fair from a gut reaction.” But it is consistent with Supreme Court precedent, Bair said.“The court says Miranda is a limited-purpose doctrine, and you can’t precipitously invoke your Miranda rights,” Bair explained.The opinion affirmed the Circuit Court for Prince George’s County, which denied a motion to suppress the confession of Marr, who was later convicted in a jury trial of attempted second-degree murder and use of handgun.Credibility questionAt the suppression hearing, Marr testified that the police ignored his three requests to see his attorney and continued questioning him, at one point telling him that he could not call Kupferberg as his lawyer because of a conflict of interest. After 35 hours, he signed the Miranda waiver. Several police officers contradicted him, however, and the court found that Marr voluntarily waived his Miranda rights. “The problems you’re seeing in Prince George’s County are the result of this kind of police work,” said Kupferberg, Marr’s former lawyer. “How can the trial court come to the conclusion that he didn’t invoke his right to counsel when there was a discussion about me being his counsel≠ That corroborates the fact that he did ask for counsel.”The county’s police force is the subject of a pending investigation by a task force looking into complaints of civil rights violations. Its report is expected Oct. 1.Most recently, Prince C. Jones, a Hyattsville man, was fatally shot in the back five times by a Prince George’s County police officer who pursued him into Fairfax County, Va., Sept. 1.Yesterday, the attorney for Jones’ family commented on Marr’s case.“They’re giving all the credibility to the police,” said Ted J. Williams, the family’s Washington, D.C., attorney. “It’s unfortunate, but I’ve been told by numerous individuals that Prince George’s County police will lie to get a conviction,” Williams continued. “Sooner or later — and I hope sooner — the courts will come around and find out there’s something smelly going on in the Prince George’s County police department.”Kupferberg added that he could name three cases “in recent memory” where Prince George’s County police continued to interrogate clients “in spite of my representation.”“There are too many cases like this and it’s the same group of guys,” Kupferberg said. “This case, on Miranda, should go to the Supreme Court. When lawyers come to the door and ask to see their clients, the police turn them away. This happens time and time again. I’m outraged.”Marr’s attorney on appeal, Assistant Public Defender George E. Burns Jr., said a decision to appeal to the Court of Appeals was at least a week away.“Part of the problem is that the Supreme Court said that whatever the police do — even if it’s reprehensible — it will be a proper confession,” Burns said. “That sets the tone. There’s a question of how reprehensible it should be before it affects Miranda.”Personal rightCiting Moran v. Burbine, a 1986 Supreme Court case, Eyler noted that “the voluntariness of a defendant’s waiver of his Fifth Amendment right to remain silent and right to counsel was not vitiated by the failure of police to inform him that his attorney had telephoned for him at the police station during the course of police questioning.”“The right is a personal one which must be invoked by the individual whose testimony is being compelled, and there is no agency theory applicable to these facts under which [Marr’s] attorney could invoke that personal right on his behalf,” Eyler wrote.Marr is currently in prison serving consecutive terms of 30 and 20 years.

WHAT THE COURT HELDCase: Nathaniel D. Marr v. State of Maryland, CSA No. 2587, Sept. Term 1999. Reported. Opinion by Eyler, J. Filed Sept. 11, 2000. Issue: After the appellant’s lawyer called police and told them that his client should not talk to them without his attorney present — a message not relayed to the appellant, who confessed — did the circuit court err in denying the motion to suppress the appellant’s statements≠ Holding: No. The appellant voluntarily, knowingly and intelligently waived his right to an attorney during the police interrogation. The right is a personal one which must be invoked by the individual whose testimony is being compelled and there is no agency theory applicable to these facts under which the appellant’s attorney could invoke that personal right on his behalf.Counsel: George E. Burns Jr. of the public defender’s office for appellant; and Assistant Attorney General Diane E. Keller for appellee. RecordFax: 0-0911-07 (43 pages)