Seventh Circuit reinstates state court conviction.

• Author: Ziemer, David

Byline: David Ziemer

The Seventh Circuit held on Nov. 6 that, even though it was misleading for a police officer to tell a suspect who asked for an attorney "right now," that he could not accommodate the request, admission of the suspect's subsequent statement is not so clearly contrary to federal law that the state court conviction must be reversed.

On May 29, 1997, Milwaukee police officers investigating a report of gunshots, arrested Frederick Jackson. Jackson was interviewed by Milwaukee police detective James Guzinski, who advised Jackson of his rights under Miranda v. Arizona, 384 U.S. 436 (1966).

Jackson then asked Guzinski if he could arrange for him to see a lawyer "right now." Guzinski testified at the suppression hearing: "At that point I told him I could not do that, and that I was going to end my interview with him. He stated he wanted to talk to me now. I stated that he would have to waive his right to an attorney and he would have to be very clear about that which he stated yes, he did want to do that because he wanted to cooperate in giving a statement and answering my questions."

Ultimately, Jackson gave incriminating statements.

However, Guzinski's statement about the availability of a public defender did not accurately describe state law. Wis. Admin. Code PD 2.03(2) provides that public defenders are available to individuals in custody prior to their being charged on an emergency basis, 24 hours per day including weekends and holidays.

Also, sec. 967.06 provides that "persons who indicate at any time that they wish to be represented by a lawyer, and who claim that they are not able to pay in full for a lawyer's services, shall immediately be permitted to contact the authority for indigency determinations..."

Jackson was charged in Wisconsin state court, and unsuccessfully moved to suppress his confession. Jackson then pleaded guilty to conspiracy to possess cocaine with intent to deliver, and was sentenced to eight years in prison by Milwaukee County Circuit Court Judge Jeffrey A. Kremers.

He appealed, but a divided Wisconsin Court of Appeals affirmed his conviction. State v. Jackson, 229 Wis.2d 328, 600 N.W.2d 39 (Wis.Ct.App.1999). The Wisconsin Supreme Court denied Jackson's petition for review, and Jackson sought a writ of habeas corpus in federal court.

Judge Lynn Adelman of the Eastern District of Wisconsin granted the petition. The State appealed, and the Seventh Circuit reversed in a decision by Judge Ann Claire Williams.

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