July 1, 2009 – A divided Wisconsin Supreme Court upheld the admissibility of statements obtained during the interrogation of a woman who never expressly asked for an attorney, but was kept apart from her lawyer by police.

In State v. Ward, 2009 WI 60, the court majority affirmed its adherence to the U.S. Supreme Court holding of Moran v. Burbine, 475 U.S. 412 (1986). A defendant’s waiver of Miranda rights was upheld in Burbine despite the police’s failure to inform the suspect that his attorney was attempting to call him, and the police’s deliberate deception of the attorney in stating that they would wait for him to arrive before questioning his client.

“[E]vents occurring outside of the presence of the suspect and entirely unknown to him can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right,” the Burbine court held.

But dissenting justices in Ward warned that incommunicado detention “smacks of the star chamber” and noted that more than a dozen other states have rejected Burbine, finding greater protection from these tactics under their state constitutions.

Investigation into a baby’s death

Jennifer Ward was babysitting her infant nephew when he stopped breathing and later died at a local hospital.

At the hospital, police interviewed Ward in the morning of Dec. 1, 2004, telling her she was not under arrest and that she was free to leave at any time. But police isolated Ward from her family members during this questioning. Police also misleadingly told Ward that her daughter reported seeing Ward shake the baby, when this actually related to Ward’s administration of CPR at the direction of 911 phone staff.

Ward traveled to the police station where officers read her Miranda rights and she signed a waiver of them. During the questioning, Ward asked the detective several times if she should contact an attorney. Each time, the detective responded that this was her decision to make. Ward wanted to talk to her husband about her right to counsel. But the detective said her husband was unavailable, despite the fact that he was waiting outside the interrogation room.

An attorney representing Ward appeared at the police station and asked to speak with his client, but the police barred him from meeting with Ward because she had not personally invoked her right to counsel. Ward was not told that anyone had requested to see her.

Around 5:20 p.m., the detectives ceased questioning and told Ward that she would be spending the night in jail. At that time, Ward was told she could not make any phone calls, but police relented around 7 p.m. so that she could call an attorney if she requested one. Ward did not ask to call a lawyer.

The next morning, Ward wanted to talk to the detectives and a third round of questioning ensued after she again waived her Miranda rights. Police subsequently charged Ward in the death of her nephew.

Prior to trial, the circuit court refused to suppress statements Ward made during these instances of questioning. The defense argued at trial that old blood found in the baby’s skull indicated he had been subject to head trauma days or weeks before he was under Ward’s care.   However, the jury convicted Ward of first-degree reckless homicide.

Ward was fit to make statements

In the majority opinion authored by Justice Patience Roggensack, the court stated at the outset that the voluntariness of a confession is judged by the totality of circumstances, balancing the characteristics of the suspect against the type of police tactics used to obtain the statement.

Relevant traits of a suspect include age, education, intelligence, physical or emotional condition, and prior experience with law enforcement, the court noted. In this case, the majority agreed with the circuit court’s determination that Ward was “relatively sophisticated and intelligent.” The justices noted that Ward, a 35-year-old high school graduate and daughter of a police officer, demonstrated familiarity with her rights as they were read to her.

The court majority discounted Ward’s protestations that following her black out triggered by news of her nephew’s death, she had been suffering seizures and experiencing back pain while questioned at the hospital.

Police misrepresentations

Having concluded that nothing about Ward made her particularly susceptible to coercion, the court turned to an analysis of the police tactics.

The court majority acknowledged that the detective misrepresented what Ward’s daughter said about Ward shaking the baby. However, misrepresentations by police are no more than one “relevant factor” in the totality of circumstances test, the court said. In this case, the court downplayed the importance of the misrepresentation, commenting that Ward’s incriminating statements were at variance with what the police claimed to have learned from her daughter.

Likewise, the court dismissed the effect of denying Ward’s family members access to Ward’s hospital room as “minimal.” The court pointed out that hospital personnel were frequently entering and exiting the room throughout the interview, and police told Ward she could stop the interview at any time. As a result, the interview was “relaxed” and had a “conversational” tone indicating it was not coercive.

A defendant alone may invoke rights

Examining the interrogation at the police station, the court majority concluded that Ward’s ability to recite some of her rights to the detective reading her Miranda warnings evidenced a knowing, voluntary, and intelligent waiver of her rights.

The court then turned to Ward’s claims that the statements subsequent to the waiver were coerced. “Coercion,” the court explained, occurs when the state exerts pressure beyond the defendant’s ability to resist.

Police obstruction of the attorney’s efforts to meet with Ward as well as the detective’s “evasiveness” in response to Ward’s questions regarding her husband’s whereabouts is irrelevant to the inquiry, the court said.

  “[S]uch conduct is only relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them,” the majority wrote, quoting Burbine. In this case, Ward was fully apprised of her rights without being aware of circumstances outside the interrogation room, the court said.

Quoting State v. Hanson, 136 Wis. 2d 195 (1987), the court observed that the right to counsel and the right to remain silent are given to the defendant, and only the defendant can exercise them, not family nor an attorney. Therefore, it made no difference that Ward did not know where her husband was or was kept from seeing the attorney outside the door.

The court added that Ward’s request to speak to anyone other than an attorney has no legal effect. “A request to speak with family members triggers no constitutional rights in the manner that a request to speak with counsel does, and under Burbine, the police have no obligation to inform Ward that her husband was waiting outside,” the court said.

Police coercion is a necessary prerequisite to finding that a defendant’s statement was involuntarily made, and Ward did not demonstrate any, the court concluded.

Unequivocal request for an attorney

“[A]ll Ward had to do was unequivocally ask for an attorney,” the court said. If she had done so, the police would have been obligated to cease all questioning, the court continued.

“Instead, she asked the police what they thought she should do. This is an equivocal statement,” the court said, adding that a suspect’s ambiguous or equivocal reference to an attorney does not require police to stop their questioning.

The court noted that the detective accurately informed Ward that only she could decide whether to invoke her right to counsel. The court found no coercive conduct in these exchanges.

Night in jail

Incommunicado detention arises when visitors, such as family members and counsel, are prevented from seeing or contacting the suspect, and the suspect is prohibited from communicating with individuals other than the police, the court explained.

Under Burbine, the court said, “the only impermissible aspect of incommunicado questioning is that which prevents a suspect from speaking with those to whom he or she has a constitutional right to speak.”

The court conceded that Ward had been held in a “constitutionally impermissible status” from the time the detectives first told her she would be spending the night at the jail and could not make any phone calls to the time they permitted her to call an attorney, if she wanted. Ward did not attempt to call an attorney while at the jail, the court noted.

But even if Ward had attempted to contact an attorney during the hour and 40 minutes the police unlawfully restricted her access to counsel, the remedy would be suppression of any incriminating statements made during that time, the court said. Ward made no such statements during that time, the court said.

The court considered whether the period of unlawful detention should lead to suppression of subsequent incriminating statements. In this case, the court decided that Ward’s request to talk to the police the morning following her night in jail demonstrates a willingness to talk that shows the “brief” period of detention did not affect the voluntariness of her statements.

‘Methodical isolation’

In dissent, Justice N. Patrick Crooks – joined by Justice Ann Walsh Bradley and Chief Justice Shirley Abrahamson – charged the majority with “focus[ing] on technicalities” such as the way it only counted the time that the police placed a strict prohibition on Ward’s access to a phone at the jail when judging her period of unconstitutional detention.

Ward was subject to “methodical isolation” that “began at the hospital before [she] was even in custody and continued throughout the remainder of a day, a night, and the next morning, for a total of more than 24 hours until the third interrogation produced the statements the police were seeking,” Crooks wrote.

“[T]he tactics of the police should give us pause,” Crooks said. “The statements at issue here were obtained through a troubling mix of deceptive and manipulative methods, employed on a suspect who was at every turn blocked from contact with anyone, including a lawyer and family members who were present and waiting just outside a door.”

Crooks further accused the majority of relying on the “legal technicality” of the “strained and artificial distinctions in Fifth and Sixth Amendment jurisprudence.” Specifically, Crooks said that simply by refraining from filing charges before completing the interrogations, the police were able to prevent triggering Ward’s stronger Sixth Amendment right to counsel.

Unlike the Fifth Amendment, a suspect does not need an “unequivocal and unambiguous” request for counsel before the Sixth Amendment right attaches, Crooks said. This point was made by the court of appeals in State v. Hornung, 229 Wis. 2d 469 (Ct. App. 1999),  holding that police violated the defendant’s Sixth Amendment right to counsel when they denied his request to make phone calls.

“In this case, Ward’s repeated references in the interrogations to her wish to speak to her husband about retaining an attorney and her clear statements that it was unrealistic to expect her to be able to reach an attorney during nighttime hours would be viewed quite differently had she already been charged and had the Sixth Amendment right to counsel attached,” Crooks wrote.

“This court should apply Article I, Section 8 of the Wisconsin Constitution, a provision that parallels the Fifth and Sixth Amendments of the United States Constitution, to cases like this one rather than continue to allow artificial distinctions to be drawn based on something as subject to manipulation as whether charges have been filed,” Crooks wrote.

Crooks took aim at Burbine, pointing out that the Supreme Court itself acknowledged it was setting a lower threshold for compliance with the Fifth Amendment than what other states require. At least 13 states, including Minnesota, Michigan, and Illinois, have found greater protection from incommunicado interrogations in their state constitutions, Crooks reported.

“[M]y great concern here is protecting the search for the truth that is supposed to be the point of a trial,” Crooks wrote. “After all, a large part of the reason for banning involuntary confessions is that they are unreliable.

“While a confession extracted over the course of three interrogations of a suspect whose family members and counsel were fended off over the course of two days may technically resolve a case, such tactics – sure to be used, I fear, now that this court has given its blessing – leave lingering questions as to whether the right person was prosecuted and whether justice was served,” Crooks concluded.