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Miranda Waiver – Inaccurate Advice, from Counsel

State v. Xavier J. Rockette, 2005 WI App 205
For Rockette: Timothy A. Provis


¶24     We conclude that Rockette did not waive his Miranda rights. Rockette does not argue that Chausee did anything to coerce his confession. Indeed, the purpose of Rockette’s cooperation at the interview, which his own counsel set up, was to increase his chances of securing some leniency from the State. Thus, his statements were voluntary. Despite the fact that the statements were voluntary, however, we cannot say that an intelligent waiver occurred. First, Rockette never personally indicated that he wished to waive his rights. Counsel could not do that for him by simply arranging a meeting with the police. See Hanson, 136 Wis. 2d at 213. Moreover, we cannot say that any purported waiver was knowing and intelligent. Rockette’s statements were clearly admissible for impeachment purposes, see Schultz, 152 Wis. 2d at 417-18, yet, by telling Rockette that whatever he said could not be used against him, his attorney led him to believe that his statement could not be admitted in court at all. Rockette obviously did not know and understand the potential consequences of making a voluntary confession to the police because his counsel gave him erroneous information.

Note, as a matter of potentially interesting contrast, Charles E. Sweeney, Jr. v. Carter, 361 F.3d 327 (7th Cir 2004) to the effect that even a “woefully inadequate performance” by counsel in advising the client to waive Miranda rights in the pre-charging context isn’t cognizable on federal habeas review (because of the absence of clear Supreme Court precedent on the issue). But that case did not, unlike this one, involve the failure to administer Miranda rights.

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