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Offense “Closely Related” to Formally Charged Offense

State v. Scott Leason Badker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.W.2d 142
For Badker: Timothy A. Provis

Issue: Whether the bail jumping offense was closely related to the homicide, within the meaning of the 6th amendment, so that the right to counsel attached under the latter as well as the former offense.

Holding: The 6th amendment right to counsel attaches once a formal charge has been issued, and precludes waiver of counsel during police-initiated interrogation. This right also attaches to any charge “closely related” to the formally-issued one(s), ¶20-21. Badker was charged with bail jumping for violating a no-contact condition of bond – the bail jumping and homicide weren’t “closely related”: they were separated by a few hours and 30 miles, and required proof of different elements.

Note: A recent U.S. Supreme Court case casts doubt on this methodology, if not the result. Texas v. Cobb:

We see no constitutional difference between the meaning of the term “offense” in the contexts of double jeopardy and of the right to counsel. Accordingly, we hold that when the Sixth Amendment right to counsel attaches, it does encompass offenses that, even if not formally charged, would be considered the same offense under theBlockburger test.

In other words, the focus is now on the elemental and not factual relationship of the offenses.Note related issue about whether dual sovereignty doctrine should be imported into this area, U.S. v. Krueger, 7th Cir No. 04-2539, 7/28/05 (“one might conclude that a defendant’s invocation of his right to counsel as to a charge brought by a state government will not be treated as the invocation of his right as to the federal charge, irrespective of the common factual basis for the two charges” — but court then canvasses contrary authority, and leaves issue open). See also U.S. v. Mills, 412 F.3d 325 (2nd Cir 2005) (Cobb does not support “a dual sovereignty exception to its holding that when the Sixth Amendment 17 right to counsel attaches, it extends to offenses not yet charged that would be considered the 18 same offense under Blockburger”); contraU.S. v. Coker, 1st Cir No. 04-2154, 12/28/05 (all double jeopardy jurisprudence, including dual sovereignty doctrine, incorporated into 6th amendment right to counsel analysis).

There may be an argument in any given case where they apply, statutory double jeopardy defenses, § 939.71 (non-drug cases) and § 961.45 (drug), that as exceptions to the dual sovereignty doctrine, extend the right to counsel.

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