Interrogation
raises ethical questions
By
David Ziemer
Wisconsin Law Journal
May
17, 2006
| What
the court held Case:
State of Wisconsin v. Backstrom, No. 2005AP1270-CR; U.S. v. Olson, et al., Nos.
01-1772, et al. Issue:
Must an accused be formally readvised of his Miranda rights, when he was informed
of them the day earlier, and acknowledges that he is aware of them before questioning
resumes? (Backstrom)
Must a prosecutor advise an accused of the procedures
for obtaining counsel, in addition to advising him of his Miranda rights? (Olson)
If so, is suppression the proper remedy? (Olson) Holding:
No. Where the defendant has been informed of his rights, waived them, and acknowledges
that he understands them, a second formal reading of the rights is not required.
Not answered.
Even if a prosecutor has the obligation, suppression
of the statement is not an appropriate remedy. Counsel: Provis, Timothy A., Port
Washington, for appellant; Donohoo, Robert D., Milwaukee; Kassel, Jeffrey J.,
Madison; Weber, Gregory M., Madison, for respondent. Counsel:
Provis, Timothy A., Port Washington, for appellant; Donohoo, Robert D., Milwaukee;
Kassel, Jeffrey J., Madison; Weber, Gregory M., Madison, for respondent. |
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.
“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.” Hon.
Ilana D. Rovner
Seventh Circuit |
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.
“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. … Backstrom's
constitutional rights were not violated and therefore the statement he made to
Carroll was admissible.” Hon.
Ted. E. Wedemeyer
Wisconsin Court of Appeals |
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.
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.
