Only the client can invoke right to counsel

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If a client of yours is arrested and being interrogated, it won’t do any good to go down to the station and demand to speak to him. The officers have no obligation to tell him that you’re there.

In a June 30 opinion, the Wisconsin Supreme Court declined to interpret the Wisconsin Constitution more broadly than the Fifth Amendment, to prohibit incommunicado interrogation.

In a broad statement, holding the two constitutional provisions are coextensive, Justice Patience Drake Roggensack wrote for the majority, “Article I, Section 8 of the Wisconsin Constitution provides the same protections prior to charging a suspect as does the Fifth Amendment.”

A dissent by Justice N. Patrick Crooks, in contrast, called it coercive to hold a suspect incommunicado, and went even further — saying that the court should abolish the distinctions between the protections against interrogation afforded by the Fifth Amendment (prior to charging) and Sixth Amendment (post-charging).

Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley joined the dissent.

Interrogation

Jennifer L. Ward was interrogated three times by police investigating the death of a 7-week-old nephew she had been caring for. The police suspected shaken baby syndrome was the cause of death.

The first interrogation occurred at the hospital; Ward was not in custody, and made incriminating statements.

The second occurred at the police station. Ward’s husband and attorney appeared at the station and wanted to speak to her, but police would not let them, nor would they inform Ward of their presence.

Ward waived her Miranda rights and gave incriminating statements.

After the interview ended, police told her she could not make any phone calls, but one hour and 40 minutes later, she was told she could call a lawyer. However, she did not do so.

The next day, Ward asked to speak with the detectives and was interrogated again. She waived her Miranda rights, and again made more incriminating statements.

Courts Find Statements Voluntary

Charged with first-degree reckless homicide, she moved to suppress her statements, but the circuit court, and ultimately, the Court of Appeals and Supreme Court all held her statements were voluntary.

A major factor in finding the statements voluntary was that Ward was familiar with her rights, reciting them unprompted to the detective before both custodial interrogations, and signing the waiver form.

Turning to the issue whether her incommunicado status rendered the statements involuntary, the court concluded it did not, relying on Wisconsin and U.S. Supreme Court precedents.

Pursuant to Moran v. Burbine, 475 U.S. 412 (1986), adopted in Wisconsin in State v. Hanson, 136 Wis.2d 195, 401 N.W.2d 771 (1987), police have no constitutional obligation to tell a suspect that his attorney is present and available.

“If the suspect is unaware that the police have prevented someone from making contact, this fact has no bearing on the suspect’s waiver of rights or the voluntariness of his or her statements,” Roggensack wrote.

The majority acknowledged that Ward’s rights were violated during one period of her custody — the hour and 40 minutes after the second interrogation, during which she had been told she could not call a lawyer.

However, the court concluded that the only remedy would be suppression of any statements made during this time, but there were not any. The court also noted that, when police did tell her she could call a lawyer after this period, she did not do so.

Even if a period of impermissible detention could warrant suppression of statements made later, the court concluded that it would not be appropriate in this case, because the third interrogation was prompted by her request to speak to the detectives.

“All she had to say was, ‘I want a lawyer.’ Ward never did this,” Roggensack wrote.

Dissent

Justice Crooks dissented, quoting at length from Justice Stevens’ dissent in Burbine: “Until today, incommunicado questioning has been viewed with the strictest scrutiny by this Court; today, incommunicado questioning is embraced as a societal goal of the highest order that justifies police deception of the shabbiest kind.”

Noting the delay before formal criminal charges were filed, Crooks also concluded that the Court should abolish the distinction between suspects in custody prior to and after charging.

“We should follow the lead of other states and utilize Article I, Section 8 of our constitution to eliminate the artificial distinctions that exist between Fifth and Sixth Amendment jurisprudence, and we should utilize Article I, Section 7 of our constitution to find that a waiver of the right to counsel cannot be knowing, and therefore valid, where police have refused to inform an accused person that counsel is present and available,” Crooks concluded.

In a prepared statement, Attorney General J.B. Van Hollen praised the decision, saying “The right to counsel and the right to remain silent are given by the constitution to defendants — not to their family members and not to their attorney. In this case, it was up to the defendant to decide whether to talk with police and whether to ask for a lawyer’s help in making this decision. She decided on her own to talk with police, and she must accept both the consequences of that decision and the acts that she confessed to committing.”

Criminal defense attorney Paul Bucher also said the opinion was positive, at least from the standpoint of predictability in advising clients.

“If the court is signaling that it is backing away from ‘new federalism,’ I think it’s a good thing for predictability if the court follows federal law. You know what to expect,” Bucher said, a former prosecutor.