Wisconsin Supreme Court finds only the client can invoke right to counsel.

• Author: Ziemer, David

Byline: David Ziemer

If a client of yours is arrested and being interrogated, it won't do any good to go down to the station and demand to speak to him. The officers have no obligation to tell him that you're there.

In a June 30 opinion, the Wisconsin Supreme Court declined to interpret the Wisconsin Constitution more broadly than the Fifth Amendment, to prohibit incommunicado interrogation.

In a broad statement, holding the two constitutional provisions are coextensive, Justice Patience Drake Roggensack wrote for the majority, Article I, Section 8 of the Wisconsin Constitution provides the same protections prior to charging a suspect as does the Fifth Amendment.

A dissent by Justice N. Patrick Crooks, in contrast, called it coercive to hold a suspect incommunicado, and went even further -- saying that the court should abolish the distinctions between the protections against interrogation afforded by the Fifth Amendment (prior to charging) and Sixth Amendment (post-charging).

Chief Justice Shirley S. Abrahamson and Justice Ann Walsh Bradley joined the dissent.

Interrogation

Jennifer L. Ward was interrogated three times by police investigating the death of a 7-week-old nephew she had been caring for. The police suspected shaken baby syndrome was the cause of death.

The first interrogation occurred at the hospital; Ward was not in custody, and made incriminating statements.

The second occurred at the police station. Ward's husband and attorney appeared at the station and wanted to speak to her, but police would not let them, nor would they inform Ward of their presence.

Ward waived her Miranda rights and gave incriminating statements.

After the interview ended, police told her she could not make any phone calls, but one hour and 40 minutes later, she was told she could call a lawyer. However, she did not do so.

The next day, Ward asked to speak with the detectives and was interrogated again. She waived her Miranda rights, and again made more incriminating statements.

Courts Find Statements Voluntary

Charged with first-degree reckless homicide, she moved to suppress her statements, but the circuit court, and ultimately, the Court of Appeals and Supreme Court all held her statements were voluntary.

A major factor in finding the statements voluntary was that Ward was familiar with her rights, reciting them unprompted to the detective before both custodial interrogations, and signing the waiver form.

Turning to the issue whether her incommunicado...