Venue Case
Analysis
Sept.
24, 2007
In
light of the ubiquity of cell phones, the admissibility of a defendant’s
consultations with counsel prior to arrest is an issue that is
likely to occur more often than in the past.
Unfortunately,
the court’s discussion of pre-arrest consultation of counsel
has potential to be a trap for the unwary attorney.
The
court declined to decide the merits of the issue, and suggests
that it is one of first impression in the circuit. However, there
is one case that does discuss the issue in dicta, which parties
should be aware of when the issue arises again. Dean v. Young,
777 F.2d 1239 (7th Cir. 1985).
In
Dean, the sister of a homicide suspect arranged for him to have
counsel, and counsel advised him not to speak to police. At trial
in state court, the prosecutor elicited substantive evidence of
both Dean’s silence and his representation by counsel.
After
conviction and affirmance in Wisconsin’s appellate courts,
Dean sought habeas corpus in federal court. The Seventh Circuit
held that the admission of the evidence of Dean’s representation
by counsel did not violate his due process rights.
However,
it only did so, because of the context of that particular case.
Because counsel was retained by his sister, and the attorney advised
him not to speak to police, the court concluded that the reference
to counsel “helped” Dean, by providing a good reason
for his silence and blunting the prosecutor’s effort to use
his silence as evidence of guilt. Dean, 777 F.2d at 1242.
In
other contexts, however, the court opined that it could violate
due process to present evidence that a defendant consulted counsel.
The
court wrote as follows: “A reference to a suspect’s
decision to retain counsel also draws into question rights secured
by the due process clause of the fourteenth amendment. If the
prosecutor had argued to the jury something along the lines of:
‘The defendant went right out and got a lawyer, so you can
be sure he knew he was guilty’, Dean would have a strong
argument. (We need not decide if it would be powerful enough.)”
Id.
Thus,
there is some prior Seventh Circuit precedent on the issue of
pre-arrest consultation with an attorney, albeit not much.
The
particular facts of this case raise another interesting question
the court does not address. Muhammad’s action in calling
an attorney after the Juarez sisters could be interpreted in two
ways: he was consulting counsel for legal advice; or he was arranging
counsel to represent the sisters.
It
is a plausible argument that that the due process clause would
render admission of the call to counsel inadmissible under the
first interpretation, but not the second.
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Main Story.
David
Ziemer can be reached by email.
