Police can question without lawyer in some cases, court says

<br>WASHINGTON (AP) _ In a 5-4 decision that dissenters say narrows the constitutional right to counsel, the Supreme Court ruled Monday that a suspect who has a lawyer in one investigation cannot automatically

Tuesday, April 3rd 2001, 12:00 am

By: News On 6

WASHINGTON (AP) _ In a 5-4 decision that dissenters say narrows the constitutional right to counsel, the Supreme Court ruled Monday that a suspect who has a lawyer in one investigation cannot automatically have him present during police questioning for a related crime.

``The Constitution does not negate society's interest in the ability of police to talk to witnesses and suspects, even those who have been charged with other offenses,'' Chief Justice William H. Rehnquist wrote for the conservative majority.

Texas police did not violate Raymond Cobb's Sixth Amendment right to a lawyer when questioning him alone about a double killing, even though he had a lawyer in the prosecution of a burglary that police believed was related, Rehnquist wrote.

Justice Stephen G. Breyer wrote in dissent that the majority's view of the case threatens previous Supreme Court decisions establishing the way police should apply the Sixth Amendment.

``In my view, this unnecessarily technical definition undermines Sixth Amendment protections while doing nothing to further effective law enforcement,'' Breyer wrote.

The ruling upholding Cobb's conviction is a victory for police, who feared a decision the other way would jeopardize countless prosecutions.

``Questioning a potential suspect to follow up on new leads can often be critical in resolving a case,'' said Stephen McSpadden, general counsel for the National Association of Police Organizations.

``Police shouldn't be in the position that they risk everything they get being thrown out just because it arises from the same set of circumstances,'' as another prosecution, McSpadden said.

Defense lawyers and civil liberties defenders called the ruling an invitation to police mischief.

``It gives more power to (police) to finesse around a defendant's constitutional rights,'' said Lawrence S. Goldman, a New York attorney and vice president of the National Association of Criminal Defense Lawyers. ``It encourages cops to find ways to work around the right to counsel.''

The burglary and the killings are separate crimes under Texas law, and a lawyer working on one case is not automatically part of the other case, Rehnquist wrote in a ruling joined by Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Sandra Day O'Connor.

Police cannot always focus their questioning on just one offense that may be part of a larger crime, Rehnquist wrote.

``Deterred by the possibility of violating the Sixth Amendment, police likely would refrain from questioning certain defendants altogether,'' Rehnquist wrote.

The NACDL's Goldman agreed.

``Yes, and that's exactly what the police should do _ refrain,'' Goldman said.

Breyer was joined in his dissent by Justices Ruth Bader Ginsburg, David Souter and John Paul Stevens.

Rehnquist added lengthy footnotes to refute criticism.

``In all but the rarest of cases, the court's decision today will have no impact whatsoever on a defendant's ability to protect his Sixth Amendment right,'' Rehnquist wrote.

``The Sixth Amendment right to counsel is personal to the defendant and specific to the offense,'' Rehnquist added.

Maggie Owings and her 16-month-old daughter, Kori Rae, disappeared following a 1993 burglary at Owings' rural Walker County home. Police suspected mother and child were dead, but they had no bodies to prove it.

Cobb confessed to the burglary in 1994, but said he knew nothing about the disappearances. A lawyer represented him in court.

The following year, Cobb was out on bond and living hundreds of miles away in Odessa, Texas, when his father called police back in Walker County. The father said his son had confessed to killing Owings and Kori Rae.

Odessa police arrested Cobb and questioned him about the killings. His original lawyer was not notified, and no lawyer was present. This time, Cobb waived his Miranda rights and confessed to the killings. When he returned to Walker County, he led police to a wooded grave.

The confession and Cobb's cooperation in finding the bodies were used as evidence at his trial. Cobb was sentenced to death.

The Texas Court of Criminals Appeals ordered the confession thrown out, ruling that Cobb's burglary lawyer should have been notified.

The case is Texas v. Cobb, 99-1702.