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For nearly 40 years appellate courts have disagreed about whether police must tell defendants they have a right to counsel during interrogation, as well as before questioning, as part of the Miranda warning. Four circuits require explicit advice to defendants that they are entitled to counsel during interrogation, while four other circuits do not. In a recent Texas death penalty case, the Fifth Circuit U.S. Court of Appeals, which has required since 1968 that the defendant be “clearly informed” of a right to a lawyer during interrogation, decided it wants it both ways. The circuit court rejected the Miranda challenge in the habeas corpus appeal of Allen Bridgers, saying that detectives’ advice that Bridgers had the right to consult an attorney “prior to” questioning was adequate to convey that he was entitled to have an attorney before questioning, “and that this attorney could remain during questioning,” according to Judge Fortunado Benavides. The case is Bridgers v. Dretke, 05-70020. But in a footnote, Benavides said that the circuit would continue to apply its 37-year-old precedent to direct appeals that “a suspect must be explicitly warned that he has the right to counsel during interrogation.” The case is U.S. v. Atwell, 398 F.2d 507 (1968). Atwell applied to a direct appeal, while Bridgers’ case, by contrast, is a habeas review under the 1996 Antiterrorism and Effective Death Penalty Act. “We have determined that the Texas Court of Criminal Appeals’ decision was not an objectively unreasonable application of Supreme Court precedent,” said Benavides. The Atwell court stated that telling the accused that he or she is entitled to consult an attorney “at any time” does not comply with Miranda v. Arizona, 384 U.S. 436 (1966). Bridgers was convicted of killing his niece in 1997 in Tyler, Texas, taking her purse, jewelry and car, then fleeing by bus to Florida. He was arrested in Fort Lauderdale, Fla., and an officer there said, “You have the right to the presence of an attorney/lawyer prior to any questioning. Do you understand?” Bridgers indicated he did. He gave a tape-recorded confession that the defense sought to suppress based on the failed claim of an inadequate Miranda warning. “This decision is about as clear as mud,” said Karyl Krug, a federal habeas practitioner in Austin and former Texas deputy attorney general specializing in habeas relief. Krug pointed out that three U.S. Supreme Court justices expressed concern about the Miranda implications when Bridgers’ direct appeal was denied review. She suggested that the Fifth Circuit may have been “emboldened to test the waters” on Miranda by the high court’s refusal to take the direct appeal. “Talk about a [ certiorari] question,” said Roy Greenwood, a Texas death penalty appellate specialist. “Jesus, either it is a constitutional violation or it isn’t,” he said. Jerry Strickland, spokesman for the Texas attorney general’s office, declined to comment on the appeal. Bridgers’ attorney, Kenneth Nash, did not return calls for comment. Benavides pointed out the sharp division in the circuits on the issue of access to a lawyer during interrogation. The Ninth Circuit noted in its 1984 ruling on the topic that the Supreme Court has said Miranda language need not be read verbatim, but “it has repeatedly emphasized the critical importance of the right to know that counsel may be present during questioning,” in U.S. v. Noti, 731 F.2d 610. The Sixth Circuit said that the officers in their case failed to convey the substance of the defendant’s rights because he was never told that his statements could be used against him or that he had a right to an attorney” both before, during and after questioning.” The case is U.S. v. Tillman, 963 F.2d 137. The Tenth Circuit said that the Miranda rule “is clear” that states must warn the accused that he or she has a right to have counsel present during questioning in U.S. v. Anthon, 648 F.2d 669 (1981). But it appears less clear to the Second, Fourth, Seventh and Eighth circuits. In the oldest case, the Second Circuit in 1968 held that although an assistant U.S. attorney did not use the exact words of Miranda to warn the defendant, he did say there was a right to the “presence of an attorney, either retained or appointed” in U.S. v. Vanderpool, 394 F.2d 697. Pamela A. MacLean is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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