Not totally true. This deals with what happens after arraignment--so it's not just that I have a lawyer on retainer--it's that I have a lawyer that has either been assigned to represent me by the court or a lawyer has entered an appearance on my behalf.
The more I think about it, the more I think that the majority got this one wrong. Once a person has been arraigned and represented by an attorney, it shouldn't be incumbent on the defendant to demand a lawyer; after all, he already has one--and it's really not the defendant's responsibility in that case to know or to demand his rights; again, that's what the lawyer is for.
I can appreciate your concern, but is it really that hard to say, “Speak to my lawyer.”? At this point that is ALL you have to say. Saying (or writing) anything else is simply stupid and you can’t legislate out STUPID.
The overturning of Michigan v. Jackson means that police have the right to continue to investigate and attempt to collect evidence even after you say, speak to my lawyer. They can ask questions, and I can say, speak to my lawyer.
I just don’t see the big deal of expecting people to take that responsibility.
That's the direction I'm leaning. I could be wrong, and it probably varies from state to state, but once you have an attorney of record (like after your arraignment), don't you have to sign something to acknowledge you're waiving advice of counsel? And, doesn't that signature have to be signed in front of your counsel or some other officer of the court?