Prosecutors Case Analysis

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Prosecutors, both state and federal, need to be aware of the Olson decision, even if it did not result in reversal of Martinez’ conviction, both to avoid possible reversal, and possible problems with the Office of Lawyer Regulation.

The Current SCR 20:3.8(c) provides that a prosecutor in a criminal case shall “not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing.”

On its face, this rule could preclude prosecutors from any interrogation, because it involves an unrepresented accused waiving the right against self-incrimination.

However, the Supreme Court’s comment to the rule explicitly states, “Paragraph (c) does not apply to an accused appearing pro se with the approval of the tribunal.

Nor does it forbid the lawful questioning of a suspect who has knowingly waived the rights to counsel and silence.”

Thus, a prosecutor who acts as Carroll or Moreno-Taxman did in these cases clearly does not run afoul of paragraph (c), as currently written. However, there is no similar language in the comment relating to paragraph (b), which provides that a prosecutor shall “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.”

Arguably, this rule requires more than the mere recital of Miranda warnings, which are, in a sense, deficient. If an accused, during an interrogation, says he wants counsel, he does not actually get one until he is actually charged and ready to appear for his initial appearance. See U.S. v. Wesela, 223 F.3d 656, 661 (7th Cir. 2000)(officer responds to request for counsel by responding that he can’t call one for him, rather than explaining process for appointment of counsel; no constitutional violation found).

The case can be made that, even if such a response doesn’t violate the constitution when made by a police officer, when a prosecutor is involved in questioning prior to charging, she must do more, and explain how the “procedure for obtaining [] counsel” actually works, and give the accused “reasonable opportunity to obtain counsel.”

However, not a single Wisconsin appellate case in state courts, published or unpublished, addresses the issue. The only federal opinion to address the issue is Judge Adelman’s opinion in the case at bar, U.S. v. Acosta, 111 F.Supp.2d 1082 (E.D.Wis.2000). That opinion more fully explores whether SCR 20:3.8(b) applies to pre-charging conduct than the Seventh Circuit’s opinion, which declined to decide the issue authoritatively either way.

This issue may become clearer after the Wisconsin Supreme Court adopts its new rules of professional conduct later this year. On March 15, the court issued a tentative draft of the new rules; all rules are still subject to amendment, so when this analysis speaks of the new rule, bear in mind that it is not carved in stone.

The relevant new rule provides as follows: “When communicating with an unrepresented person who has a constitutional or statutory right to counsel, the prosecutor shall inform the person of the right to counsel and the procedures to obtain counsel and shall give that person an opportunity to obtain counsel.” Tentative SCR 20:3.8(c).

The new rule appears not to change anything. What is relevant is what was deleted by the court.

As originally proposed in the petition filed by the Ethics 2000 Committee, the rule would have provided, “When communicating after the commencement of litigation with an unrepresented person….”

The italicized language was deleted by the court, suggesting that, under the new rule, Martinez and Judge Adelman’s interpretation would be correct — prosecutors must do more than just give Miranda warnings if they participate in pre-charging questioning; they must explain the process for appointment of counsel.

The ABA comment to the rule, which will not be part of the Wisconsin rule, regardless of the rule’s final wording, expressly states to the contrary: “Nor does [paragraph (c)] forbid the lawful questioning of an uncharged suspect who has knowingly waived the rights to counsel and silence.”

The tentative Wisconsin rule has no comment on the issue. As noted, however, the Wisconsin Supreme Court has tentatively deleted the language concerning the commencement of litigation. Thus, the ABA comment is not merely not part of the rule; it appears to be contradicted by the tentative Wisconsin rule.

Accordingly, if the tentative rule is ultimately adopted, prosecutors will have to do more than the prosecutors in these cases did, lest they risk running afoul of the Rule.

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The second pertinent question is, if the tentative Rule is adopted, whether its violation is grounds for suppression of the statement. On this issue, the Code suggests the answer is “no.”

Paragraph 20 of the tentative Preamble to the Code states, in relevant part, as follows: “Violation of a Rule should not itself give ris
e to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of lawyer in pending litigation.”

Like disqualification of the lawyer, suppression of evidence would be a “nondisciplinary remedy” that is “not necessarily warrant[ed].”

Paragraph 20 also states that the purposes of the Rules can be subverted if invoked as “procedural weapons,” and provides that a rule violation “does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule.”

Thus, even if a prosecutor violates tentative Rule 20:3.8(c), a defendant will likely lack standing to seek suppression of evidence as a remedy.

– David Ziemer

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David Ziemer can be reached by email.