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No right to counsel during interrogation

The Seventh Circuit held on Nov. 6 that, even though it was misleading for a police officer to tell a suspect who asked for an attorney “right now,” that he could not accommodate the request, admission of the suspect’s subsequent statement is not so clearly contrary to federal law that the state court conviction must be reversed.

On May 29, 1997, Milwaukee police officers investigating a report of gunshots, arrested Frederick Jackson. Jackson was interviewed by Milwaukee police detective James Guzinski, who advised Jackson of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).

Jackson then asked Guzinski if he could arrange for him to see a lawyer “right now.” Guzinski testified at the suppression hearing: “At that point I told him I could not do that, and that I was going to end my interview with him. He stated he wanted to talk to me now. I stated that he would have to waive his right to an attorney and he would have to be very clear about that which he stated yes, he did want to do that because he wanted to cooperate in giving a statement and answering my questions.”

Ultimately, Jackson gave incriminating statements.

However, Guzinski’s statement about the availability of a public defender did not accurately describe state law. Wis. Admin. Code PD 2.03(2) provides that public defenders are available to individuals in custody prior to their being charged on an emergency basis, 24 hours per day including weekends and holidays.

Also, sec. 967.06 provides that “persons who indicate at any time that they wish to be represented by a lawyer, and who claim that they are not able to pay in full for a lawyer’s services, shall immediately be permitted to contact the authority for indigency determinations…”

Jackson was charged in Wisconsin state court, and unsuccessfully moved to suppress his confession. Jackson then pleaded guilty to conspiracy to possess cocaine with intent to deliver, and was sentenced to eight years in prison by Milwaukee County Circuit Court Judge Jeffrey A. Kremers.

He appealed, but a divided Wisconsin Court of Appeals affirmed his conviction. State v. Jackson, 229 Wis.2d 328, 600 N.W.2d 39 (Wis.Ct.App.1999). The Wisconsin Supreme Court denied Jackson’s petition for review, and Jackson sought a writ of habeas corpus in federal court.

What the court held

Case: Frederick G. Jackson v. Matthew J. Frank, No. 02-1979.

Issue: Where Wis. Stats. sec. 967.06 provides for the appointment of counsel to indigents prior to charging, did it violate the Fifth Amendment right to counsel for a police officer to tell a suspect that he could not have court appointed counsel during interrogation?

Holding: Even if the officer’s actions did violate the right to counsel, no U.S. Supreme Court decision clearly establishes that point, and so a state prisoner cannot obtain relief on that ground via a federal habeas corpus petition.

Judge Lynn Adelman of the Eastern District of Wisconsin granted the petition. The State appealed, and the Seventh Circuit reversed in a decision by Judge Ann Claire Williams.

Federal Law

Jackson argued that the Wisconsin Court of Appeals unreasonably applied clearly established federal law to his case, because: 1) the detective misstated the availability of a public defender under Wisconsin law; and 2) the detective’s statement may have misled Jackson into believing that he did not have a right under the Fifth Amendment to have counsel present during interrogation.

The court concluded it had no authority to grant habeas corpus relief pursuant to the first argument. The court acknowledged that the detective may have failed to follow state law by not allowing Jackson to contact the public defender’s office and mischaracterizing the provisions of the law.

However, review of a habeas petition by a federal court is limited to consideration of violations of federal law or the United States Constitution. Because neither Miranda nor any other provision of federal law requires that a public defender be immediately available to a suspect during interrogation, the court concluded it could not enforce state law provisions through habeas relief.

Duckworth v. Eagan

The second argument the court characterized as “more substantial,” but still denied relief. The court concluded, “as the Wisconsin Court
of Appeals found, Jackson’s argument runs headlong into the Supreme Court’s decision in Duckworth v. Eagan, 492 U.S. 195 (1989).”

In Duckworth, the suspect was informed that he would be provided an attorney “if and when [he] went to court.” The Supreme Court held his subsequent waiver under Miranda voluntary. The Court rejected the argument that the warning may have suggested that he could not have counsel present until he went to court.

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 officer’s conduct, the Court made clear that, “If the police cannot provide appointed counsel, Miranda requires only that police not question a suspect unless he waives his right to counsel.”

Jackson attempted to distinguish Duckworth, because, in his case, the police could have provided counsel, and argued, therefore, that the detective’s remarks violated Miranda.

The Court acknowledged a difference between Indiana and Wisconsin law, but stated, “it is far from clear that the Court’s conclusion rested on that fact. The Court did not explain, for example, how, if this were so, differences in the provision of public defenders under state law should affect a petitioner’s understanding and exercise of his federal constitutional rights.”

The court quoted the decision in Moran v. Burbine, 475 U.S. 412, 422-23 (1986), in which the U.S. Supreme Court stated, “Once it is determined that a suspect’s decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State’s intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.”

However, the court also acknowledged that the Supreme Court has previously held, “In certain circumstances, the Court has found affirmative misrepresentations by the police sufficient to invalidate a suspect’s waiver of the Fifth Amendment privilege,” Colorado v. Spring, 479 U.S. 564, 576 n.8 (1987).

Links

7th Circuit Court of Appeals

Related Article

Case Analysis

Nevertheless, it concluded, “the uncertainty after Duckworth as to how to balance at least two factors — the veracity of an officer’s statement of state law and the provision of proper Miranda warnings — prevents this court from concluding that the Wisconsin courts unreasonably applied clearly established federal law.”

The court further noted that the Fifth Circuit has held that a misstatement of law does not, in and of itself, make a Miranda waiver involuntary. Soffar v. Cockrell, 300 F.3d 588 (5th Cir. 2002)(en banc). In Soffar, the suspect asked about the availability of a court-appointed lawyer, and the detective responded, “[i]t could take as little as a day or as long as a month,” despite the fact that the municipality had a rule that suspects could not be held for more than 72 hours without being charged.

The suspect in Soffar then said, “so you’re telling me I’m on my own,” and the detective remained silent. Never-theless, the Fifth Circuit held the subsequent statement voluntary.

The Seventh Circuit expressly de-clined to adopt the conclusions of the Fifth Circuit in Soffar. Nevertheless, it found it could not conclude that the Wisconsin Court of Appeals’ admission of the statement in Jackson’s case unreasonably applied clearly established federal law.

Accordingly, the court reversed the district court, and reinstated the state court conviction.

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David Ziemer can be reached by email.

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