(dissenting) — Once again we encounter the State’s manipulation of criminal procedure in pursuit of a confession. And once again we come up against Burbine and Earls, which hold that a defendant’s waiver of the right to counsel is knowing and intelligent even when police refuse to inform the defendant an attorney is trying to reach him. Moran v. Burbine, 475 U.S. 412, 106 S. Ct. 1135, 89 L. Ed. 2d 410 (1986); State v. Earls, 116 Wn.2d 364, 805 P.2d 211 (1991). Relinquishment of the Miranda4 rights to remain silent and to the presence of an attorney must be “the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Burbine, 475 U.S. at 421. Because I find Ted Bradford’s waiver was procured at least in part by deception, I would reverse.
Burbine declares that “[e]vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” 475 U.S. at 422. When police prevent the suspect from learning information that could affect his decision to abandon his rights, however, I believe the police conduct must be examined in the light of the “ ‘totality of the circumstances surrounding the interrogation[.]’ ” Burbine, 475 U.S. at 421 (quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979)). Police officers here interrogated Mr. Bradford for over eight hours, during which time they failed to deliver up Mr. Bradford for arraignment on the lewd conduct charges and declined to inform him of his right to appear at the arraignment, where he could have been *952released. Not only did they violate CrRLJ 3.2.1(d)(1), but at the time arraignment should have occurred they told Mr. Bradford his only options were to go back to jail or to continue talking with them. When Mr. Bradford’s attorney arrived at the station for the arraignment, the officers refused to allow him access to his client and told him, falsely, that his client did not wish to talk to him. All these events occurred before Mr. Bradford had confessed.
Even Burbine recognizes that police deception may rise to the level of a due process violation. 475 U.S. at 432. Such factors as undue delay in arraignment, failure to inform the suspect of his rights and refusal to inform the suspect that legal counsel is available and wishes to speak to him are all relevant to the issue of voluntary self-incrimination during interrogation. See State v. Self, 59 Wn.2d 62, 72, 366 P.2d 193 (1961) (citing Culombe v. Connecticut, 367 U.S. 568, 601, 81 S. Ct. 1860, 6 L. Ed. 2d 1037 (1961)), cert. denied, 370 U.S. 929 (1962). Due process requires fundamental fairness, integrity and honor in the operation of the criminal justice system. Burbine, 475 U.S. at 467 (Stevens, J., dissenting). I simply cannot condone the procedural maneuvers used here to sidestep Mr. Bradford’s rights to arraignment, assignment of counsel and possible avoidance of the custodial interrogation. Accordingly, I must dissent.
Review denied at 139 Wn.2d 1022 (2000).
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R.3D 974 (1966).