Prosecutors
Case Analysis
May
17, 2006
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not a single Wisconsin appellate case in state courts, published or unpublished,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.
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 rise 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.
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David Ziemer
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David
Ziemer can be reached by email.
