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Miranda Waiver – Inaccurate Advice Re: Timing of Appointment of Counsel

State v. Frederick G. Jackson, 229 Wis. 2d 328, 600 N.W.2d 39 (Ct. App. 1999), affirmed on habeas review, Frederick G. Jackson v. Frank, 02-1979, 11/6/03
For Jackson: Allan D. Krezminski.

Issue/Holding: During custodial interrogation, Jackson asked for an attorney, and the detective gave erroneous advice, namely that Jackson could have an attorney once charges “were established” (erroneous, of course, because Jackson had a right to pre-charging consultation). Holding that “rigid, verbatim adherence to ideal Miranda warnings is not required,” the court rejects suppression of the ensuing statement, in effect because the error had no impact: the detective (erroneously) told Jackson he’d get an attorney later, but Jackson didn’t want to wait.

The dissent emphasizes SPD authority to provide representation on an emergency basis, during custodial pre-charge interrogation, as support for the idea that Jackson didn’t validly waive counsel. The 7th Circuit, on habeas review, agrees that as a matter of state law, Jackson was indeed entitled to counsel “right now,” but because Miranda itself doesn’t impose such a requirement as a matter of federal law, Jackson’s ensuing waiver of rights was nonetheless valid.On different aspect of timing: note deep split among federal circuits on whether warning must explicitly advise of right to counsel during interrogation, or whether advising of right to counsel prior to questioning coveys message that counsel may remain throughout, cataloged in Bridgers v. Dretke, 5th Cir No. 05-70020, 12/2/05.

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