- In Maryland v. Shatzer, ___U.S. ___, 130 S. Ct. 1213 (2010), the United States Supreme Court held that, even if a defendant has invoked his or her right to counsel, law enforcement may give the Miranda warnings again so long as the defendant has been released from custody for at least fourteen days. Shatzer, 130 S. Ct. at 1222-24. The question is whether Wisconsin should follow Shatzer or rely on the Wisconsin Constitution as the Wisconsin Supreme Court has done with Fifth Amendment issues on other occasions.
- When the defendant asked, in the squad car on the way to the second interrogation, “can I have my attorney present for this?” did he unambiguously invoke his right to counsel? No similar case has been published in Wisconsin and other jurisdictions are split with regard to substantially similar statements.
- If the statement is declared to be ambiguous, then we ask that the supreme court resolve a third issue. Does it make a difference whether the ambiguous statement was made before Miranda warnings were given as opposed to afterwards? Again, there is no Wisconsin law on this issue and other jurisdictions are split as to whether it makes a difference.
The issues-statement above, taken directly from the certification request, very efficiently describes the problems at stake. Edler, during an arrest on a burglary, unequivocally invoked his right to counsel when the interrogation pivoted toward an unrelated arson. He was booked on the burglary, released on bond, and 19 days after his release, arrested on the arson. Edwards v. Arizona, of course, says that, in contradistinction to a an assertion of the right to silence, an unequivocal assertion of counsel bars authorities from re-initiating the interrogation. But Shatzer says that an Edwards-assertion is a perishable commodity, with a shelf-life of 14 days following release from custody. So as a matter of federal constitutional law, Edler’s earlier assertion no longer had any value when he was picked up on the arson, 19 days after his release from custody. Wisconsin remains free to take a different approach, and that is precisely what this request addresses:
In summary, in view of the fact that the Wisconsin Constitution has not always been treated as co-extensive with the Fifth Amendment, we ask the supreme court to decide whether the Wisconsin Constitution provides more robust protection of the privilege against self-incrimination than does the United States Constitution in this instance.
Significant as this first issue is, the remaining issues have their own interest quite apart from the 14-days rule. As issue #2 indicates, when he was arrested on the arson, Edler said, “can I have my attorney present for this?” If this statement is construed to be an “unequivocal” request, then the ensuing interrogation was barred. Was this an unequivocal request for counsel so as to trigger the Edwards rule? The certification canvasses caselaw on both sides of the question. The final issue might turn out to be the most meaningful: when a suspect makes an ambiguous assertion of rights prior to waiving them, must the police clarify his intent before proceeding with an interrogation? The certification puts it this way:
This issue has split state and federal courts nationwide. If the court holds that it is ambiguous whether Edler invoked his right to counsel, we ask the court to resolve the question for Wisconsin: must police clarify a suspect’s statement about obtaining counsel before interrogation, if that statement is made prewarning and prewaiver of the Miranda rights?
Keep in mind, it might be added, that an entrenched and otherwise unresolved conflict among lower courts on a recurring constitutional problem is typically the strongest ground for cert-grant.