Court Assumes Without Deciding That Police Have a Duty Similar to Rule 4.2 of Rules of Professional Responsibility; Any Violation, However, Was not Egregious under Clark Standard.

State v. Buckingham, Minn.S.Ct., 9/10/2009.  A jury convicted Mr. Buckingham of first degree premeditated murder and the trial court sentenced him to life without parole.  Police arrested Mr. Buckingham two days after the murder.  A couple of weeks later Mr. Buckingham called the police from jail, wanting to talk.  The officer recorded the Miranda warning and Mr. Buckingham’s request that the officer turn off the recorder.  The officer complied and Mr. Buckingham gave an incriminating statement.

On appeal, Mr. Buckingham complained of the failure to have recorded the entire interrogation, citing State v. Scales, 518 N.W.2d 587 (Minn. 1994).  During trial, however, Mr. Buckingham did not raise any factual disputes about the substance of the unrecorded statement.  Under State v. Inman, 692 N.W.2d 76 (Minn. 2005), this failure to have raised any factual disputes about the content of the statement makes any Scales violation unsubstantial.

Mr. Buckingham got in touch with the police at a time when he had counsel.  The officer tried unsuccessfully to contact Mr. Buckingham’s attorney, but the attorney’s voice mail box was always full; the officer did not notify the prosecutor of Mr. Buckingham’s contacts.  This omission arguably takes the interview out from under State v. Clark, 738 N.W.2d 316 (Minn. 2007), so Mr. Buckingham asked the appellate court to extend Clark to the police.  The appellate court rejected a request to impose an affirmative duty on the police:

to either (1) obtain explicit consent of counsel before interrogating the defendant; (2) notify the prosecutor that the defendant wants to talk, but is requesting his counsel be present; or (3) refrain from communicating with the defendant until the prosecutor and counsel have discussed the request and directed the most appropriate [course] of action.

The appellate court assumes without deciding that law enforcement owes a duty similar to prosecutors, but concludes that the behavior here was not “egregious” under Clark.  (Where a prosecutor violates Rule 4.2, the court takes a case by case approach to determine whether the conduct is so egregious as to compromise the fair administration of justice.)  For one thing, Clark had not been decided so even if the officer had called the prosecutor, that prosecutor may have believed in good faith that attempts to contact counsel satisfied Rule 4.2.