New York Times
January 17, 2002

Whether Walker Knew of Counsel Is Issue


A battle has broken out between Attorney General John Ashcroft and lawyers who say they represent John Walker, the Californian-turned-Taliban warrior, about whether investigators improperly kept Mr. Walker from conferring with the lawyers while he was being questioned.

Legal experts said the battle might be laying the groundwork for a defense claim that Mr. Walker's constitutional rights had been violated. If the courts agreed, they could bar prosecutors from using the statements Mr. Walker made during the 45 days he has been held.

"The case against him is almost entirely based on his own statements," said H. Richard Uviller, a criminal law expert at Columbia Law School, "so if those statements are barred from court, there goes the case."

The exchange on the issue began on Tuesday night, after Mr. Ashcroft had outlined the charges against Mr. Walker. A lawyer hired by Mr. Walker's parents issued a statement on behalf of the family saying it appeared that Mr. Walker had not been told a lawyer had been hired for him.

"Despite repeated attempts by his family and his counsel to see him, John has not been given access to a lawyer," the statement said.

Mr. Ashcroft responded yesterday, saying in television appearances that Mr. Walker had been told of his rights under the Supreme Court's 1966 Miranda decision, which declared that suspects must be told they have a right to an attorney and a right to remain silent.

"Both in writing and orally," Mr. Ashcroft said on ABC, "he indicated he wanted to make statements absent an attorney, and that's a right we respect in America."

Mr. Walker's parents have sought to portray him as a nave youth, but lawyers said a 20-year-old was an adult in the eyes of the law. Many states require permission from parents before officers can question children, but those rules generally permit questioning of people 16 or older.

An adult has the right to decide to speak to investigators without a lawyer. Additionally, a lawyer paid by a relative does not become a person's lawyer until the person agrees to be represented, and Mr. Walker could decide not to be represented by the lawyer his parents hired, James J. Brosnahan.

Further, the Supreme Court has said a suspect does not even have a constitutional right to be informed that a lawyer has been hired by a relative. In a 1986 decision, the justices approved a murder conviction based on a confession, even though the police did not tell the suspect that his sister had arranged for a lawyer.

"We have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights," the justices said in that case.

Still, lawyers said yesterday, there was room for a legal battle in the Walker case on several counts. Even though adults can waive their rights, decisions not to confer with a lawyer must be made in a "knowing and intelligent waiver."

The courts have given the authorities wide latitude in defining what is a knowing waiver, often focusing on questions like whether a suspect was threatened or drunk.

But Nathan Lewin, a prominent Washington defense lawyer, said he expected lawyers for Mr. Walker to argue that after the chaos of Afghanistan, the injured Mr. Walker could not have grasped the implications of declining a lawyer.

Yale Kamisar, an expert on Miranda rights at the University of Michigan Law School, said the length of time Mr. Walker was in custody without his family being able to communicate with him might also be an issue. Mr. Kamisar said the courts had not defined how long the authorities might be able to hold a suspect without disclosing that a lawyer had been hired to represent him.

Some legal experts said yesterday that the Justice Department could make a persuasive case that in a war setting, the authorities would have extensive leeway. Mr. Kamisar said the authorities could justify questioning someone for hours or days without telling him that his family had hired a lawyer.

"But when it turns into a couple of days or more," Professor Kamisar said, "it seems to me the balance shifts in favor of the defense" in its assertion that a suspect should be told a lawyer has been hired to represent him.

"If you've got a constitutional right to have a lawyer," Mr. Lewin said, "you have a right to talk to someone who will hire you a lawyer."

Copyright 2002, New York Times Company. All rights reserved.

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