Waiver of Right to Counsel After It Already Been Attached

Under Massiah v. United States (1964) once the right to counsel has attached, a defendant's subsequent waiver of that right in a police-initiated interview is ineffective. The right to counsel attaches when formal charges have been filed. (People v. Bradford (1997) 15 Cal. 4th 1229, 1312, 939 P.2d 259.) Even after the defendant has an attorney with respect to a particular charge, the police may question the defendant, subject only to Miranda advisements and waivers, about uncharged crimes. (Id., at p. 1313, citing McNeil v. Wisconsin (1991) 501 U.S. 171, 175-177, 115 L. Ed. 2d 158, 111 S. Ct. 2204.) In other words, "The Sixth Amendment right to counsel . . . is 'offense specific.' That is to say, it attaches to offenses as to which adversary judicial criminal proceedings have been initiated -- and to such offenses alone." (People v. Clair (1992) 2 Cal. 4th 629, 657, 828 P.2d 705, citing McNeil v. Wisconsin, 501 U.S. at pp. 175-176.) "An exception to the offense-specific requirement of the Sixth Amendment occurs when the pending charge is so inextricably intertwined with the charge under investigation that the right to counsel for the pending charge cannot constitutionally be isolated from the right to counsel for the uncharged offense." (People v. Wader (1993) 5 Cal. 4th 610, 654, fn. 7, 854 P.2d 80, quoting U.S. v. Hines (9th Cir. 1992) 963 F.2d 255, 257.) Although the Supreme Court did not apply the "inextricably intertwined" exception in Wader because the Court concluded that the defendant's crimes in that case were "logically distinct" (ibid.) it also did not specifically reject the exception.