Jackson v. Litscher
| Citation | 194 F.Supp.2d 849 |
| Decision Date | 19 March 2002 |
| Docket Number | No. 00-C-1587.,00-C-1587. |
| Parties | Frederick G. JACKSON, Petitioner, v. Jon E. LITSCHER, Respondent. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Melinda A. Swartz, Wisconsin State Public Defenders Office, Milwaukee Appellate Division, Milwaukee, WI, for petitioner.
David J. Becker, Wisconsin Department of Justice, Office of the Attorney General, Madison, WI, for respondent.
DECISION AND ORDER
Petitioner, Frederick G. Jackson, a Wisconsin state prisoner, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in Milwaukee County Circuit Court of conspiracy to possess cocaine with intent to deliver. Petitioner pled guilty to the charge and was sentenced to eight years in prison after the court denied a motion to suppress his confession. He appealed the denial of the motion, and the state court of appeals affirmed, one judge dissenting. State v. Jackson, 229 Wis.2d 328, 600 N.W.2d 39 (Ct.App.1999). His petition for review was denied by the state supreme court. State v. Jackson, 230 Wis.2d 272, 604 N.W.2d 571 (1999) (table).
Petitioner argues that his rights under the Fifth and Fourteenth Amendments were violated when, after receiving Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), he requested counsel and was misinformed that counsel was not then available. Soon after receiving this misinformation he confessed. The issue presented is whether the state courts improperly refused to suppress the confession.1
A. Facts
On May 29, 1997, Milwaukee police officers investigating a report of gunshots observed petitioner driving fast and stopped his car. One of the officers stated that she observed a white substance that resembled cocaine all over petitioner's mouth and teeth. When asked what was in his mouth, petitioner fled and was arrested a few minutes later. Police found a powdery substance in a white plastic bag and two weight scales in his car although the substance later tested negative for cocaine.
Petitioner did not receive a probable cause hearing until June 5, for which there is no explanation in the record. On June 2, 1997, he was interviewed by Milwaukee police detective James Guzinski in a room in the County Criminal Justice Facility. The record contains no description of the room. The officer testified at the state court suppression hearing that he first obtained background information from petitioner and then advised petitioner of his Miranda rights.
Petitioner then asked "if he could have a lawyer right now." (Answer, Ex. J at 26:24.) The officer testified that petitioner's "intent to me was to have a lawyer present there, then and there, right now, and if I could arrange for that." (Id. at 27:11-:13.) The officer told petitioner that he could not obtain an attorney for him and that a public defender would be assigned when charges were issued. The officer's testimony continued:
(Id. at 27:22-28:18.)
The information that the officer conveyed to petitioner about when counsel could be appointed and made available to him was false and directly contrary to state law. The Wisconsin Public Defender's Office is statutorily authorized to provide counsel to adults in custody prior to charging on an emergency basis outside of regular business hours. Wis.Stat. §§ 977.05(4)(h) & 977.05(6)(c); Wis.Admin.Code §§ PD 2.01(1), 2.02(1), 2.03(2) (). Moreover, Wis.Stat. § 967.06 provides:
Persons [detained or arrested] who indicate at any time that they wish to be represented by a lawyer, and who claim that they are not able to pay in full for a lawyer's services, shall immediately be permitted to contact the authority for indigency determinations specified under s. 977.07(1). The authority for indigency determinations in each county shall have daily telephone access to the county jail in order to identify all persons who are being held in the jail.
The officer testified that petitioner again stated that he wanted a lawyer but did want to speak to the officer.
(Id. at 29:10-:22.)
Petitioner also testified about the interrogation. He stated that he advised the detective that he did want to talk but also wanted an attorney present so that he would not get into any further trouble. He said that the officer suggested that it would look better to the district attorney if petitioner spoke without a lawyer because he would not appear to be a hardened criminal hiding behind a lawyer.
Petitioner admitted that he had been arrested and read his rights before. However, he claimed that in this instance the procedure was different because he was prodded into making statements. He testified that he expected to get a lawyer before he proceeded with the interrogation.
The trial court ruled as follows:
I see this one really as a tough call. I'm going to rule that the Miranda warnings were given and they were complied with; and, based upon the totality of the circumstances, the statement was voluntarily given. I do this in part because I see these—this defendant I think—its something more than just being informed that he's been through this in the past. I think that this is a fairly intelligent defendant we have here. I think that he—and he made some conscious choices which were his to make and so that it was a knowing and intelligent waiver.
(Id. at 44:4-44:14.)
On appeal, the court of appeals majority acknowledged that in Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court held that when a person in custody tells an interrogating officer that he wants a lawyer, interrogation must cease until counsel is made available, unless the suspect initiates further communication. Jackson, 229 Wis.2d at 337, 600 N.W.2d 39. However, the majority stated:
"Miranda does not require that attorneys be producible on call, but only that the suspect be informed, as here, that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one," and that if "the police cannot provide appointed counsel, Miranda requires only that the police not question a suspect unless he waives his right to counsel." This is precisely what the trial court found happened here. Jackson's argument that he was somehow misled into giving up his Miranda rights because the detective told him that he would be given a public-defender lawyer "once charges were established" is without merit.
Id. (citations omitted) (quoting Duckworth v. Eagan, 492 U.S. 195, 204, 109 S.Ct. 2875, 106 L.Ed.2d 166 (1989)).
The majority observed that in Duckworth the Supreme Court found that an interrogating officer's accurate statement that a lawyer would be appointed "`if and when you go to court'" satisfied Miranda. Id. at 338, 600 N.W.2d 39 (quoting Duckworth, 492 U.S. at 199, 109 S.Ct. 2875). The majority applied Duckworth and concluded that the officer's inaccurate statement that counsel could not be appointed for petitioner until after charges were issued did not require suppression of the confession. Id. at 339, 600 N.W.2d 39.
The majority further stated that even if the officer had intentionally lied to petitioner, the waiver would not necessarily be invalid. The court cited Frazier v. Cupp, 394 U.S. 731, 737-39, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969), for the proposition that even deliberate misstatements by the police are but one factor to consider in determining whether a defendant has voluntarily relinquished his right not to undergo custodial interrogation. Jackson, 229 Wis.2d at 340, 600 N.W.2d 39.
In dissent, Judge Schudson wrote that because petitioner's resumption of communication and waiver of counsel were based on inaccurate information, petitioner's rights under Miranda had not been "scrupulously honored." Id. at 346, 600 N.W.2d 39 (Schudson, J., concurring in part, dissenting in part). He stated that Duckworth was inapplicable because in that case the officer correctly described the process for appointment of counsel under Indiana Law. In Wisconsin, conversely, counsel could have been appointed for petitioner at the time. Id. at 352, 600 N.W.2d 39. Judge Schudson concluded that petitioner had requested counsel because he believed that he was incapable of undergoing interrogation without representation, that he was then...
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