Court considers clarifying right to counsel

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On television, interrogation of a suspect in police custody immediately ceases upon the arrival of an attorney hired by a family member, whether the suspect has invoked his right to counsel or not.

In real life, attorneys wait outside until the client actually invokes or until after he has already confessed to the detective’s satisfaction.

But a case pending before the Wisconsin Supreme Court this upcoming term may change that.

In any event, it will certainly clarify what obligations police officers have in such situations.

The case is not just important to criminal defense attorneys, though, but will affect those who practice civil litigation, as well. The court also is considering to what extent Court of Appeals opinions retain precedential value, when the opinion contains multiple holdings but is later overruled by the Supreme Court on only one ground.

David W. Stevens was arrested for sexual assault and gave statements to police while in custody. He later said he wanted to speak to his lawyer, and the interview was terminated. But on the way to his cell, Stevens had second thoughts and said he wanted to continue speaking. The detective declined to do so, because he had invoked his right to counsel.

Stevens’ lawyer later appeared at the station, but she was not allowed to see Stevens. Stevens was later interviewed again, at which time he waived his right to counsel and made more incriminating statements.

The circuit court suppressed statements made during the second interrogation, relying on State v. Middleton, 135 Wis.2d 297, 399 N.W.2d 917 (Ct.App.1986), because Stevens was not told his attorney had come to see him.

The Court of Appeals reversed, concluding that Middleton no longer had any precedential value, because it was reversed on other grounds in State v. Anson, 2005 WI 96, 282 Wis.2d 629, 698 N.W.2d 776.

Considering the issue fresh, the court held, “The law does not require the police to inform a suspect that an attorney dispatched by someone else came to the station in the absence of the suspect’s personal invocation of the right to counsel.”

Before the Supreme Court, Stevens argues that Middleton is still valid law regarding this issue, because the Court in Anton held that it was only overruling Middleton “to the extent” it stated the law incorrectly on a different issue.

In contrast, the state argues that, when the Supreme Court overrules a Court of Appeals opinion for one reason, the entire opinion loses its precedential value, unless the Court expressly says that some portions remain valid law.