Texas v. Cobb, Raymond (04/02/2001)

By: Nathan Alderman, Medill News Service

Questions presented

(1) May an accused make an effective waiver of his 6th Amendment right to counsel when his only previous ""assertion"" of right to counsel consisted of accepting appointment of his attorney following his indictment on a different, but related, crime nearly one and one-half years earlier? (2) When an accused has been indicted for burglary, does his 6th Amendment right to counsel attach to questioning about a factually related capital murder?

Brief

When Lindsey Owings came home to his Huntsville, Texas, house on Dec. 27, 1993, he found his stereo was missing.

So were his 22-year-old wife, Margaret, and his 16-month-old daughter, Kori Raye.

Owings would spend the next two years wondering what had become of them. He later testified that he would wander the woods near his Walker County house for hours, calling out their names. As it turned out, he was closer to them than he could have imagined.

In November 1995, Raymond Cobb, a 17-year-old high school student who lived across the highway from the Owingses at the time of the disappearances, confessed to murdering Owings' wife and burying Kori Raye alive with her mother in the woods.

He had initially confessed to Huntsville police that he stole the Owings' appliances, but denied involvement in the disappearances.

In November 1995, Cobb and his father Charles were living across the state in Odessa. One night, Charles called Odessa police and told them his son had just confessed to murdering Kori Raye and her mother.

During interrogation, Cobb told the Odessa police he broke into the Owings' home to steal their stereo. While he was inside the house, he was attacked by Margaret Owings, he said. He told police he fatally stabbed her in the stomach. While Kori Raye slept, he dragged Margaret's body into the woods, he recalled. Then he went back to retrieve the sleeping child-- and a shovel.

Cobb would later lead investigators to the gravesite, where the Owings' corpses were found, wearing the clothes they were last seen in.

The trial was swift; eight days after it began on Feb. 19, 1997, a Huntsville jury convicted Cobb of murder and sentenced him to die.

But the very confession that led Cobb's jury to convict him prompted the Texas Court of Appeals to overturn the conviction.

One of the eleven points of contention in Cobb's appeal was that his confession had been obtained in violation of his 6th Amendment right to counsel. At the time of the initial investigation, attorney Hal Ridley was representing Cobb against charges stemming from his admitted burglary of the Owings' home. The Walker County Sheriff's Department, strongly suspecting that Cobb had a hand in the Owings' disappearances, twice asked for and received permission from Ridley to question Cobb about the disappearances without Ridley being present. These two questioning sessions, in August 1994 and September 1995, proved fruitless.

When Charles Cobb called the Odessa police in November 1995, his son was free on bond pending his burglary trial. The Odessa police took his statement and faxed it to Walker County, where the sheriff's department used the confession to get an arrest warrant for Raymond Cobb. The warrant was faxed back to Odessa. The police there arrested Cobb, and after he had been read his Miranda rights, he confessed to the killings.

But the Walker County deputies never informed the Odessa police that Cobb had a lawyer, or that they'd previously had to gain permission from that lawyer to question him about the killings. Though Cobb knew his Miranda rights when he confessed, his laywers argued that the crucial confession was obtained without the approval or knowledge of Cobb's lawyer, violating the 6th Amendment.

Prosecutors argued that the killings were a separate crime from the burglary, and thus that Cobb had been ""unattached"" to counsel at the time of his questioning. Even if he had counsel, they said, his 6th Amendment right had been effectively waived since his lawyer had given permission for him to be questioned on two previous occasions.

On March 15, 2000, the Texas Court of Appeals ruled 6-3 that Cobb's confession was inadmissible under the 6th Amendment, and ordered that he be granted a new trial.

""Once the right to counsel has attached and has been invoked, any subsequent waiver during police-initiated interrogation is ineffective unless counsel has first given permission for the interrogation,"" Judge Steve Mansfield wrote for the majority, adding that ""...once the right of counsel attaches to the offense charged, it also attaches to any other offense that is very closely related factually to the offense charged.""

""Therefore, before the Odessa police could lawfully question apellant about the disappearance of the Owings, they were under an obligation to contact Ridley and get his permission,"" Mansfield continued. ""They failed to do that.""

In the same ruling, the court dismissed another point of Cobb's appeal, stating that the severity and nature of his actions clearly proved he would be a future threat to others, despite the fact that the psychologist who testified for the prosecution on his mental state had never actually examined him.

In a dissent, Presiding Judge Michael McCormick attacked the majority opinion on several fronts. He cited the Supreme Court's ruling in Brewer v. Williams that a defendant could unequivocably waive his right to counsel despite having asked for counsel in the past. Furthermore, McCormick asserted that any harm done to due process by the admission of Raymond Cobb's confession was negated by Charles Cobb's testimony that Raymond had admitted the killings to him.

McCormick also cited the Court's decision in Michigan v. Jackson to support his argument that evidence obtained from any ""tainted"" confession -- in this case, the bodies of Cobb's victims -- was still admissible, since in getting the confession the police only violated a ""prophylactic"" rule meant to protect Cobb's 6th Amendment rights.

On June 26, 2000, the U.S. Supreme Court granted certiorari in the case, limiting review to the first two questions presented in Texas' petition. The Court also allowed Cobb to proceed in forma pauperis, and let the Criminal Justice Legal Foundation, the National Association of Police Organizations, et al., and the Texas District & County Attorneys Association, et al. file amicus briefs in the case.

On Nov. 24, 2000, as the Court decided to review one of the Presidential election cases out of Florida, it rescheduled oral argument in this case from Dec. 6, 2000 to Jan. 16, 2001.

On April 2, 2001, a divided Court, split along ideological lines, held 5-4 that Texas police did not violate Cobb's 6th Amendment right to a lawyer by questioning him alone, even though he had a lawyer in a related case.

""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 Rehnquist wrote for the majority. ""The Sixth Amendment right to counsel is personal to the defendant and specific to the offense.

""Deterred by the possibility of violating the Sixth Amendment,"" the majority reasoned, ""police likely would refrain from questioning certain defendants altogether.""

Joining Rehnquist were Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O' Connor.

""In my view, this unnecessarily technical definition undermines Sixth Amendment protections while doing nothing to further effective law enforcement,"" Justice Stephen Breyer wrote in a dissent for himself and Justices John Paul Stevens, David Souter, and Ruth Bader Ginsburg.