Cannot waive statutory right to counsel without safeguards

Meryl Carver-Allmond won in State v. Lawson, No. 103,509 (Kan. April 5, 2013), obtaining a new trial in a Leavenworth County aggravated criminal sodomy prosecution.  Meryl had to argue this case twice before the Kansas Supreme Court as it grappled with some complicated issues surrounding federal and state constitutional and statutory rights to counsel.

The day after Mr. Lawson's first appearance, officers took Mr. Lawson to the police department for interrogation.  According to officers, they provided oral and written Miranda warnings and Mr. Lawson signed a written Miranda waiver and subsequently made several incriminating statements.

The KSC acknowledged that recent SCOTUS case law allows for uncounseled waivers of both the Fifth and Sixth Amendment right to counsel by a Miranda waiver process.  Although the KSC discussed at some length the possibility of independently construing the Kansas Constitution right to counsel, it ultimately decided the case on statutory grounds:

We need not decide today whether the right to counsel described in K.S.A. 22-4503 is constitutionally required by the right to counsel provision in § 10 of the Kansas Constitution Bill of Rights. Where a right to counsel is provided by statute, the denial of that right can result in a reversal. Here, Lawson was "charged by the state of Kansas in a complaint, information or indictment with [a] felony," and, therefore, he was "entitled to have the assistance of counsel at every stage of the proceedings against [him]." K.S.A. 22-4503(a).

. . . .

Given that the State-initiated polygraph examination and interview of Lawson was a critical stage of his criminal proceedings for Sixth Amendment purposes, we hold that it was likewise a stage of the criminal proceedings for purposes of his entitlement to the assistance of counsel pursuant to K.S.A. 22-4503.

The KSC went on, then to decide that an uncounseled out-of-court waiver is invalid with respect to the statutory right to counsel:

we would hold that a defendant's uncounseled confession to a judge, via a plea of guilty, would be invalid unless the defendant had waived his or her right to counsel on the record after being given appropriate warnings by the court and after the court had assured itself that the waiver was knowingly and intelligently made and then caused all of that to be made a matter of record. We should not require anything less for an out-of-court, in-the-police-station confession to a law enforcement officer where the waiver of the defendant's statutory entitlement to the assistance of existing counsel is required. In other words, after the statutory right to counsel has attached, the defendant's uncounseled waiver of that right will not be valid unless it is made in writing and on the record in open court. A Miranda rights waiver form, addressing the defendant's Fifth Amendment right to remain silent, simply cannot be an adequate substitute for the waiver procedure we require of our learned trial judges.

So Mr. Lawson gets a new trial without the incriminating statements taken during the interrogation.

 Here is coverage in the Leavenworth Times.