dissenting:
Under the Constitution and statutes of Illinois, law enforcement officials are prohibited from interfering with an attorney’s attempt to access and assist his client. People v. McCauley, 163 Ill. 2d 414 (1994). When an attorney has advised police that he has been appointed or retained to represent a suspect in police custody and is attempting to contact his client, the police must discontinue questioning, notify the suspect of the attorney’s efforts to render assistance, and permit the attorney to consult with the suspect. If the police proceed with questioning without advising the suspect of the attorney’s efforts and without allowing the attorney to speak to the suspect first, any incriminating statements made by the suspect during the ensuing interrogation are deemed involuntary and must be suppressed. McCauley, 163 Ill. 2d at 445-46.
Contrary to the majority, I do not believe that this rule should be limited to situations where a suspect’s attorney is physically present at the site of the interrogation. Once police are advised that an attorney has been appointed or retained to represent a suspect in custody and that the attorney would like to consult with the suspect, questioning should cease. That is so whether the attorney is at the door of the police station or calling from his home, office or cell phone. See People v. Milestone, 283 Ill. App. 3d 682, 686 (1996); Commonwealth v. Mavredakis, 430 Mass. 848,_, 725 N.E. 2d 169, 179 (2000); State v. Stoddard, 206 Conn. 157, 537 A.2d 446 (1988); Haliburton v. State, 514 So. 2d 1088 (Fla. 1987). As long as the attorney has used reasonable means to give notice to the police, the particular method employed by the attorney to give such notice is logically and legally irrelevant.
The rights protected by this rule are fundamental. The administrative challenges it poses are insignificant. Application of the rule will require law enforcement officials to track the location of suspects in custody so that they can be reached and notified if attorneys inquire after them. That should not be problematic, however, in any but the largest metropolitan areas. Even there, affordable technology exists to enable police to identify where every suspect is during his or her detention.
If police are concerned that individuals will begin impersonating defense lawyers, they are free to implement policies for identifying and verifying that individuals representing themselves as attorneys are, in fact, attorneys. See Mavredakis, 430 Mass, at_n.15, 725 N.E.2d at 179 n.15. Lawyers could, for example, be required to fax copies of their bar cards and drivers’ licenses to the police station. Alternatively, police could demand that attorneys appear at the police station in person within a reasonable time after telephonic notice is given. Police would be required to suspend questioning during that interval, but if the attorney failed to appear before the time expired, questioning could resume.
By requiring counsel to be physically present at the site of the interrogation, the majority invites police misconduct. If law enforcement officers are free to continue interrogation until the lawyer appears in person at the station house where the suspect is being held, what will happen is obvious. Police will resort to subterfuge and prevarication to delay counsel’s discovery of his client’s whereabouts for as long as possible. Their goal, in every case, will be to extract a confession faster than the attorney can track the client down and intercede.
The exercise of constitutional rights should not turn on a footrace to the police station. To hold otherwise, as the majority does, reflects a basic and unwarranted distrust for the role of lawyers in our criminal justice system. We wrote in McCauley, 163 Ill. 2d at 446, that
“ ‘[n]o system worth preserving should have to fear that if an accused is permitted to consult with a lawyer, he will become aware of, and exercise, [his] rights.’ (Emphasis omitted.) [Citation.] If our system is, indeed, such a system, we have no reason to fear both lawful and protected consultation.”
I, for one, continue to believe in the wisdom of this rule. Accordingly, I would hold that the circuit court should have suppressed not only the statements made by defendant after his attorney arrived at the police station, but also the statements defendant made after police rebuffed his attorney’s attempts to reach him by telephone. Those statements, which included defendant’s confession, should not have been presented to the jury, and their admission did not constitute harmless error. Defendant should therefore be granted a new trial.
Even if defendant were not entitled to a new trial, his death sentence could not be allowed to stand. For the reasons set forth in my partial concurrence and partial dissent in People u. Bull, 185 Ill. 2d 179 (1998), the Illinois death penalty law violates the eighth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VIII, XIV) and article I, section 2, of the Illinois Constitution (Ill. Const. 1970, art. I, § 2). Defendant’s sentence of death should therefore be vacated, and the cause should be remanded to the circuit court for imposition of a sentence of imprisonment. 720 ILCS 5/9 — l(j) (West 1998). Because defendant was an adult and one of his victims was under the age of 12, or, in the alternative, because defendant was found guilty of murdering more than one victim, the term of his imprisonment must be natural life. 730 ILCS 5/5 — 8— 1(a)(1)(c)(ii) (West 1998).