George Robert Tanner was arrested for murder and held in jail. The police attempted to interview Tanner, but he said that he wanted a lawyer. One of the interviewing officers told Tanner that he would have to reinitiate contact if he changed his mind and wanted to talk. The officers then left.
The next day, while talking to a mental health worker, Tanner said that he wanted to get something off his chest. The mental health worker informed the jail administrator, who went to speak with Tanner. Tanner asked the jail administrator if he could get him an attorney. The administrator said that he could not, but that he could get the investigating officers who were handling Tanner’s case. Tanner agreed to this. The administrator spoke with one of the investigating officers and with the prosecutor. The prosecutor contacted the trial court, which appointed counsel for Tanner. The attorney appeared at the jail at about the same time as the investigating officers. The just-appointed attorney asked the police officers if they knew why he was there, and the administrator told him to wait in the jail lobby while he took the police officers back to interview Tanner. The administrator said that, after learning Tanner’s intentions, he would be back to advise the attorney. He subsequently returned to tell the attorney that there was no need for him.
Tanner was not told that there was an attorney waiting at the jail to represent him. Instead, the officers gave Tanner Miranda warnings (including that he had a right to counsel and the right to remain silent); he waived his rights and was interviewed by the officers. During the interview, Tanner made statements that implicated his participation in the murder. He was later arraigned on murder and body mutilation charges.
Defense counsel filed a motion to suppress Tanner’s statements to the police. He argued that the statements were taken in violation of the rule set forth in Bender, which established a “prophylactic rule” requiring officers to inform a defendant that an attorney was present to represent him prior to conducting an interview of the defendant. The prosecutor responded that Bender applied only to retained attorneys waiting to speak to their clients, and that the circumstances were different here.
The trial court granted the motion, ruling that there was no difference between retained and appointed counsel for the purposes of Bender. An attorney was present, the police knew it, and the attorney was not permitted to go back and see the client. Tanner, who had invoked his right to remain silent the day before, and had told the police that he was interested in an attorney that very day, was not told that there was one waiting for him. The facts of the case fell within the prophylactic rule enunciated in Bender, held the trial court, and the confession was inadmissible.
The prosecutor applied for leave to appeal in the Court of Appeals. He argued that Tanner had waived his right to counsel and to remain silent, and that the waiver was not rendered invalid simply because the police did not inform Tanner that counsel had been appointed for him. The prosecutor argued that, to the extent that Bender required suppression of Tanner’s statements under such circumstances, it was wrongly decided and should be overruled. The Court of Appeals denied leave to appeal.
The prosecutor then appealed to the Supreme Court which, on April 3, 2013, granted leave to appeal. The Court has directed the parties to address “whether People v Bender, 452 Mich 594 (1996), should be overruled.”