Review of 2 unpublished per curiam court of appeals decisions in 2 unrelated cases now joined for purposes of oral argument.
Cummings and Smith both present the question of whether defendants invoked their 5th Amendment right to cut off police interrogations. State v. Markwardt, 2007 WI App 242, 306 Wis. 2d 420, 742 N.W.2d 546 and State v. Ross, 203 Wis. 2d 66, 552 N.W.2d 428 (Ct. App. 1996) hold that a suspect must invoke his right to remain silent unequivocally. The issue here seems to be whether certain statements were equivocal or unequivocal.
Over-simplifying for the sake of brevity, Cummings asked his interrogator what other witnesses were saying about the events at issue. The interrogator responded: “I’m not gonna fuckin’ lay all of my cards out in front of you Carlos and say, ‘This is everything I know.'” Cummings replied: “Well then take me to my cell. Why waste your time? Ya know.” Meanwhile, Smith repeatedly told his interrogator: “See, I don’t want to talk about, I don’t want to talk about this. I don’t know nothing about this.” In both cases, interrogators continued the interviews on the theory that there was more than one way to interpret what the defendants really meant by their words. In both cases, the court of appeals found the defendants’ words to be equivocal invocations of the right to remain silent.
Six weeks after the court of appeals decided Cummings and Smith, the Eastern District of Wisconsin issued a writ of habeas corpus in a similar case. Saeger v. Avila, 930 F.Supp.2d 1009 (E.D. Wis. 2013). During interrogation, Saeger told police: “You . . . ain’t listening to what I’m telling you. You don’t want to hear what I’m saying. You want me to admit to something I didn’t . . . do . . .and I got nothin[g] more to say to you. I’m done. This is over.” Id. at 1011 (citing State v. Saeger, 2010 WI App 135, 329 Wis. 2d 711, 790 N.W.2d 543.) The state court of appeals found Saeger’s words to be equivocal because there were reasonable competing inferences that might be drawn from them and, let’s face it, Saeger kept talking. The Eastern District, disagreeing, found this decision to be an unreasonable application of SCOTUS precedent (namely, Davis v. U.S., 512 U.S. 452 (1994) and Berghuis v. Thompkins, 560 U.S. 370 (2010)) because Saeger’s words were clear; the police just didn’t believe that he meant them. The Eastern District explained:
[I]f this reasoning were accepted, then it is difficult to imagine a situation where a suspect could meaningfully invoke the right to remain silent no matter what words he used. In an interrogation setting, one could always imagine plausible alternative motives for stating a desire for interrogation to end. The law does not require that a suspect unambiguously invoke the right to remain silent and also explain why they are doing so. Id. at 1015-1016.
In short, according to Saeger, neither the police nor the courts may infer that a defendant who said “no” really meant “yes,” which seems to be just what the court of appeals did in Cummings and Smith. Id. at 1017. All of this calls to mind what Humpty Dumpty told Alice: “When I use a word it means just what I choose it to mean–neither more nor less.” Alice responded: “The question is whether you can make words mean so many different things.” To which Humpy replied: “The question is which is to be master–that’s all.” Has the supreme court passed through the looking glass to resolve this debate? We’ll find out at the consolidated oral arguments.