Interrogation raises ethical questions

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In two cases decided last week, one in the Wisconsin Court of Appeals, and one in the Seventh Circuit, the courts upheld the denials of defendants’ suppression motions, despite conduct by prosecutors that arguably violates SCR 20:3.8(b).

That rule provides, “The prosecutor in a criminal case shall: … (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel.”

The question, which neither opinion answers, and which the state court opinion does not even address, is whether that rule applies to pre-charging questioning by prosecutors, and requires them to explain the process for appointment of counsel to indigents.

Backstrom

In the state court case, Yediael Yokrawn Backstrom was accused by a 13-year-old cousin of his live-in girlfriend of engaging in sexual intercourse with her on two occasions.

Backstrom was arrested on July 13, 2003, and was read his rights by Detective James Andritsos at around 1 p.m. Backstrom waived his rights, and denied having any sexual contract with the girl. After about one hour, he was placed in jail.

The next morning, Milwaukee County Assistant District Attorney Jane Carroll told Andritsos that she wanted to speak with Backstrom and assess his credibility. At around 9:43 a.m., Andritsos brought Backstrom, still in custody, to Carroll’s office.

Carroll informed Backstrom who she was and that she was reviewing the case against him to decide what, if anything, he would be charged with. She also asked Backstrom if he recalled Andritsos advising him of his rights on the preceding day. Backstrom answered affirmatively.

Carroll also asked Backstrom if he remembered what his rights were, and Backstrom replied that he did. Carroll then told Backstrom that all of those rights still applied, that he did not have to speak with her if he did not want to, that he had the right to have an attorney present, and he had a right to all of the other things that Andritsos had advised him of the day before.

Backstrom indicated that he understood, and that he would speak with Carroll, and did so for approximately 15 to 20 minutes. During this conversation, he admitted having sexual contact with the girl on one occasion, but denied the other episode.

Backstrom was charged with two counts of second-degree sexual assault of a child, and was found guilty of the one he admitted to Carroll. He appealed the trial court’s denial of his pre-trial motion to suppress his statements to Carroll, but the court of appeals affirmed, in a decision by Judge Ted E. Wedemeyer.

The only issue on appeal was whether his constitutional rights were violated when Carroll failed to formally re-advise him of his Miranda rights before conducting the interview. Backstrom did not raise any issue concerning SCR 20:3.8.

Relying on State v. Jones, 192 Wis. 2d 78, 532 N.W.2d 79 (1995), State v. Fillyaw, 104 Wis. 2d 700, 312 N.W.2d 795 (1981), and Grennier v. State, 70 Wis. 2d 204, 234 N.W.2d 316 (1975), the court concluded that Backstrom’s rights were not violated.

In each of those cases, the defendant was arrested, and waived his right to remain silent. At some point, either the same day or the next, the defendant was questioned again, without being sufficiently or formally advised of his Miranda rights. In each case, the Wisconsin Supreme Court held the defendant’s statements were properly admitted.

Applying those cases to Backstom’s, the court held, “we conclude, under the totality of the circumstances, that it was not necessary for Carroll to formally re-advise Backstrom of his Miranda rights. It is undisputed that Backstrom had been advised of his rights the day before, and he clearly indicated to Carroll in her office that he remembered those rights and understood those rights. Under these circumstances, we conclude that Backstrom’s constitutional rights were not violated and therefore the statement he made to Carroll was admissible.”

Accordingly, the court affirmed.

Olson

The Seventh Circuit opinion arose from a multi-defendant RICO prosecution of the street gang known as the Almighty Latin King Nation. Five defendants, convicted of various counts, appealed their convictions and sentences, raising numerous issues far beyond the scope of this analysis.

Among the defendants was Pedro Martinez. According to the findings of fact by U.S. District Court Judge Lynn Adelman, Martinez was brought to the U.S. Attorney’s office in Milwaukee, where he was questioned by FBI agent Daniel Craft and Assistant U.S. Attorney Karine Moreno-Taxman.

Moreno-Taxman asked Agent Craft to read Martinez his Miranda rights. When Agent Craft began to inform Martinez his rights, Martinez interrupted him, saying that he knew his rights better than Agent Craft. Martinez then recited several of his Miranda rights from memory. Agent Craft nevertheless read Martinez his Miranda rights in full and asked him if he wanted to speak without an attorney present. Martinez agreed to do so.

Moreno-Taxman then told Martinez that she had evidence linking him to at least three homicides and gave Martinez an account of the murder of Angelique Morales.

This prompted Martinez to correct parts of her account that he believed were mistaken, thereby implicating himself in the murder.

Among the grounds Martinez raised in seeking to suppress his statements incriminating himself in the murder of Morales was that Moreno-Taxman violated SCR 20:3.8(b). Martinez argued that, even if he was given his Miranda warnings, more was required, specifically that he be advised about the procedure for obtaining counsel or given a reasonable opportunity to obtain counsel.

Judge Adelman rejected the government’s argument that Rule 3.8(b) does not apply until a suspect is formally indicted. Nevertheless, the court denied the motion, finding nothing egregious, highly improper or unconscionable in Moreno-Taxman’s conduct.

On appeal, in a decision by Judge Ilana D. Rovner, the court affirmed the denial of the suppression motion.

However, the court began by stating that it considers it “doubtful” that any violation of the ethics rules occurred, at all.

First, the court noted that the prosecutor carefully investigated whether Martinez was represented by counsel and insisted on a complete reading of his Miranda rights even after he interrupted the recitation to boast that he knew his rights better than the FBI agent.

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The court wrote, “Neither the district court nor the parties nor this court could find any authority requiring anything more specific of the prosecutors than what they did here, and Rule 3.8(b) itself is somewhat ambiguous about its application in the setting of a pre-indictment, custodial interrogation.”

Ultimately, however, the court declined to decide whether Judge Adelman was correct in concluding that an ethical violation occurred, because it found no abuse of discretion in admitting the statements, even if a violation did occur.

The court wrote, “Even if this was an ethical lapse, and again, we are not deciding that issue today, we see no reason to require suppression. Nothing in the record indicates that this was a wilful or egregious act on the part of these prosecutors; to the contrary, they appeared to be making every effort to comply with their prosecutorial obligations. Nor did their conduct result in a constitutional violation. And finally, there was no clear authority informing them that they were under an obligation to do more than they did. For these reasons, we find no abuse of discretion in the district court’s decision not to suppress the evidence.”

Accordingly, the court affirmed Martinez’ convictions, although they issued a limited remand to the district court to address his sentence, pursuant to U.S. v. Paladino, 401 F.3d 471 (7th Cir. 2005), cert. denied, 126 S.Ct. 1343 (2006).

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David Ziemer can be reached by email.