The decision has the potential to undermine the U.S. Supreme Courts decision in Duckworth v. Eagan, 492 U.S. 195 (1989), at least when a defendant is arrested in Wisconsin and prosecuted in federal court.
It is noteworthy that Duckworth is a case that arose within the Seventh Circuit, and that the Seventh Circuit concluded that the police officers actions did violate the right to counsel. Eagan v. Duckworth, 843 F.2d 1554 (7th Cir. 1988).
The Seventh Circuit was reversed, and has since abided by that holding. U.S. v. Wesela, 223 F.3d 656, 661-62 (7th Cir. 2000). In Wesela, relying on Duckworth, the court held that a confession was admissible, even though the suspect made an unambiguous demand for counsel, and the officer responded that he could not call one for him.
However, the issue in Wesela was whether the officers statement was misleading, and whether even if it was technically true that the officer could not ring up counsel for Wesela upon demand, the statement was intended to undermine the right to counsel and elicit incriminating statements.
However, both the Seventh Circuit in Wesela, and the U.S. Supreme Court in Duckworth (which arose in Indiana), assume that a suspect has no right to appointed counsel during interrogation. Here, the Seventh Circuit has accepted that Wisconsin law does guarantee suspects the right to appointed counsel during questioning.
Much in the decision suggests that it might find Duckworth distinguishable if the issue arose in a federal prosecution, and it was not bound by the rigid restrictions of the AEDPA.
Discussing Duckworth, the court stated, In Duckworth, the warning given by the officer accurately described the procedure for appointment of counsel in Indiana, the state in which the incident occurred. In approving the officers conduct, the Court made clear that, as was the case in Indiana, [i]f the police cannot provide appointed counsel, Miranda requires only that police not question a suspect unless he waives his right to counsel (cite omitted).
Where an arrest occurs in Wisconsin, however, the above statement does not hold true; police can provide appointed counsel.
Furthermore, the Seventh Circuits refusal to adopt the reasoning of the Fifth Circuit case, Soffar v. Cockrell, 300 F.3d 588 (5th Cir. 2002), is telling.
In Soffar, the court upheld the admission of a confession, even though the officer told the suspect that appointment of counsel could take up to a month, when the county had a 72-hour rule for appointment of counsel. When the suspect said, so youre telling me Im on my own, the officer remained silent.
Discussing the case, the Seventh Circuit would only say, We do not adopt the conclusions of the Fifth Circuit, and did not criticize the decision outright. Nevertheless, the failure to adopt the reasoning suggests that the court was troubled by it.
Accordingly, while the decision in this case forecloses relief to Wisconsin prisoners who were misled by police officers about the availability of counsel and were prosecuted in state court, it opens up a new argument to those who are prosecuted in federal court.
However, defendants making such an argument should be prepared for the possibility that the officers denial of an appointed attorney during interrogation does not violate state law, as the Seventh Circuit assumed. In the opinion of the Attorney General, at least, sec. 967.06 only requires that officers provide over the telephone that information necessary for the public defender to assess the need to make an indigency determination in person for an inmate who has requested counsel and claims indigency. 78 Atty. Gen. 133.
– David Ziemer
re for Main Story.
David Ziemer can be reached by email.