*1 Plaintiff-Respondent, Wisconsin, STATE of v.
Bradley Defendant-Appellant- HANSON, S.
Petitioner. Supreme Court 25, Argued No. 85-0918. November 1986. Decided March 1987.
(Also reported 771.) in 401 N.W.2d *4 defendant-appellant-petitioner For the there were argument by briefs and oral Yovovich, Michael assis- public tant state defender. plaintiff-respondent argued
For the the cause was by general, attorney Balistreri, Thomas J. assistant with whom on the attorney Follette, brief was Bronson C. La
general. STEINMETZ, J. The first issue in this is case I, the Wisconsin whether Constitution Article sec. 8(1)*requires law enforcement authorities to a inform suspect attorney that there is an available re- questing to see him before the individual asks to see attorney. way, Stated another can an any exercise the accused’s to counsel without request by for counsel the accused? 967.06, Stats.,2
Another issue is whether sec. requires the defendant be advised that he is to entitled 8(1) I, provides
1Article sec. of the Wisconsin Constitution as follows: "Prosecutions; jeopardy; bail; self-incrimination; double habeas corpus. (1) person may SECTION 8. No be held to answer for a law, process person criminal offense without due of and no for the may put jeopardy punishment, may same offense be in twice of nor compelled any against
be in case criminal to be a witness himself or herself." Stats., 967.06, provides 2Sec. as follows: indigency; appointment "967.06 of Determination of counsel; practicable preparation of record. As as soon after a person any has or been detained arrested in with connection punishable incarceration, offense which is or in connection any proceeding, any with civil in commitment or other situation person regardless ability pay in which a is entitled counsel of state, under the or of constitution laws the United States or this person be shall informed his or her to counsel. Persons any they represented by who indicate at time that to be wish lawyer, they pay claim able in who are not full for a services, lawyer’s immediately permitted shall be to contact the authority indigency specified for determinations under s. 977.07(1). authority indigency The for in determination each county telephone daily county jail shall have access to the identify persons being jail. jail all order who are held in the provide phone personnel requested by shall information authority. public provides In case in which state defender representation indigent person, public may to an defender request applicable reporter court clerk courts *5 are though even with an consult him. interrogation any then involved not suppress a motion to brought The defendant court, circuit the Honorable county Barron before the Schneider, The motion was denied. presiding. E. John circuit court before county in Barron A trial was held Erickson, presiding, and Hanson James the Honorable murder of his wife. first-degree of the guilty was found to the of conviction appealed judgment Hanson that his statements grounds on the appeals court of inadmissible. hospital in the were given (Hanson) defendant, Hanson, S. Bradley 26, 1984. She wife, separated April on Cindy, his who lived on a Rice Lake parents moved in with her 7,1984, probation agent farm. the defendant’s May On him threats he had made to his telephoned regarding agent informed his that he did not want wife. Hanson frighten her. anything do at a friend’s house and May stopped On Hanson Ruger a .357 and six shells and told his borrowed trip and wanted the going fishing friend he was on a gun target practice. for following the defendant visited his wife day,
The parent’s at 9 a.m. at her farm. Approximately arrival, mother, Kur- Cindy’s seconds after his Mrs. exclaim, sake, "for Brad.” schinsky, heard God’s Cindy she heard two shots. When she came into the Then kitchen, daughter she observed her on the floor lying refrigerator. near transcript request
prepare or court and transmit record. complied county compensate shall be with. The treasurer shall reporter preparation for the the court or clerk of courts documents, upon transmittal of the written statement of the state public required defender that the documents were in order to provide representation indigent person.” to the *6 Kurschinsky get Mrs. ran outside to her husband. yelled "My him, God, saw Hanson Brad, She at you just Cindy might shot and she even be dead.” hope calling stated, "Well, Hanson I she is.” After for Kurschinsky husband, her Mrs. heard another shot holding walking and observed Hanson himself and as falling if he was down.
Cindy gunshot Hanson suffered three wounds; through one entered her abdomen and exited her through midpor- back; a second one entered of tion her back and exited at the breast. She also sustained a wound to her hand which could have been caused the same shot as the one to her Cindy abdomen. injuries. Hanson died as of a result her approximately At 9:25 a.m. Hanson at arrived Lakeview Medical Center and informed a volunteer personnel that he had been shot. When medical asked "My shot, how he was argument.” he stated wife and I had an gunshot Hanson suffered a wound in his required surgery. abdomen which While Hanson was recovery surgery, in the room after his the room was guarded by Deputy Sheriff Richard Miller County Department. Barron Sheriffs Hanson re- guard private under mained when he moved approximately p.m. at room 3:35 police personnel guarded who at Hanson following medical center were under written Wally instructions from Sheriff Larson: on duty protect "#1 The officer is to Brad Hanson from as himself well as others. per- No visitors other than all
"#2 medical sonnel are to have contact with Brad Hanson. This also includes all attorneys requested unless parents and relatives are not to His
Brad Hanson. Hanson. with Brad have contact Han- stay is to within Brad The officer "#3 of Brad Hanson eye within contact son’s room and times. at all Hospital personnel will furnish bever-
"#4 duty. age the officer on and food for any questions not to ask Officers are "#5 Hanson, questions. answer Brad complications, officer shall contact Any "#6 Larson, 234-8286.” Wally Sheriff over a call A Rice Lake learned *7 being by held named Hanson was radio that someone having matter and would be on a serious public telephoned surgery. defender’s office He relayed State Public the information to Assistant And Durning. Durning Attorney had Defender Lawrence previously represented Hanson the defendant when probation placed year’s in December of on two damage property In 1982 on a criminal conviction. probation fact, on that when the instant Hanson was probation charge and was on a hold at his initial arose prior appearance. party However, neither claims the legal impact relationship has on this case. Durning Attorney May at arrived On Medical Center Rice Lake and identified Lakeview Deputy Deputy Miller also knew himself to Attorney Miller. Durning position public and his as assistant through experience from other matters. At defender approximately p.m., Durning Attorney
2:10 to 2:12 the defendant at the first available asked to see Durning opportunity. that he stated was not appeared attorney defendant’s representative at that time but as a public At of the state defender. that recovery time, room, the defendant was in the Durning speak was not allowed to see to him. p.m. approximately date,
At 2:20 on the same spoke mother and of father the defendant with Attorney Durning represent and asked him to their Durning indigency son. filled out an of affidavit sworn by the mother and father as to the defendant’s indigency; however, the defendant was an of adult age. years Durning through Hanson, found parental indigent eligible interview, be for an appointed by public office the state defender. p.m., Attorney Durning Deputy
At 2:40 advised Bradley attorney, Miller that he was Hanson’s that he had been contacted the defendant’s mother and speak that he wished to with the defendant. p.m., Deputy At 2:42 Babler, Miller and James C. Attorney county, the District for Barron had tele- phone conversation at which time Babler told Miller speak anyone not to allow to the defendant unless requested attorney. the defendant This informa- conveyed Deputy Attorney tion was Miller to Durning. p.m., Durning requested
At 2:42 one no be Durning, *8 he, talk allowed to to Brad unless Hanson present. specified particularly ap- was He that this plied to law enforcement officers. p.m., Durning approximately appoint-
At 3:20 attorney Bradley by Bradley ed for S. Keith, Hanson region First Assistant State Public for Defender county Bradley time, which Barron is located. At this requested attorney, Hanson not had had not been counsel, informed of his and had not been questioned surgery. due to his condition after There- Bradley appointment was made without
fore, this knowledge. request, consent Hanson’s p.m., moved from the the defendant was At 3:35 private recovery of on the second floor room room to a hospital. Durning gave Deputy p.m., Attorney At 3:37 stating request defendant Miller a written interrogated or to law or to talk with was not to be Durning’s anyone else without officers or enforcement presence. physical stated as follows: communication
The written Sheriff, 9, 1984; Cty. Barron WI To: "May Bradley appointed as for "I have been S. Hanson. enforce- he not talk to law
"I instruct presence. my physical without ment officer interrogated not be further instruct he "I my presence. officer without any law enforcement by anyone my without interviewed That he not be presence. physical Durning Lawrence W.
/s/ Durning Lawrence W. Hanson Attorney Bradley for S. p.m.” 3:37 Durning Attorney to see was in fact not allowed day May 1984. No visitors oh the 9th the defendant personnel allowed to have were than medical other morning May the defendant. On contact with again presented Durning himself at 10, 1984, Bradley hospital S. access to and was not allowed Hanson. surgery day morning after after his on investigators killing, two was visited Hanson Department. county Hanson Sheriffs
from the Barron *9 receiving morphine every was then three to four hours. interrogating investigators
Prior Hanson, checked with a nurse and another medical center approval speak official for ny to Hanson. The testimo- Avery, Judy of Officer Thomas Nurse Fischer and Deputy Alfred Lentz was that Hanson was coherent. Deputy Lentz testified the defendant "seemed to be resting comfortably slightly in his bed. His head was very low-keyed. raised. He was Seemed to know exactly going where he was at and what was on.” informing rights,
After Hanson of his Miranda3 asking rights, him whether he understood those stated, "Yeah, Hanson I think so.” One of the investi- gators questions, including asked Hanson further ascertaining that he had had Miranda read to past. him in willing When asked whether he was questions to answer or statement, make a Hanson replied signed "sure.” Hanson then a written Miranda form, waiver which informed him:
"1. You right have the to remain silent. "2. Anything you say can and will be used against you in a court or proceedings. other
"3. right You have the to consult making before any answering statement any question and to have an attorney present you with during questioning.
"4.
you
If
cannot afford an attorney one will
appointed
public
be
expense
at
represent
you
during
before or
any questioning,
if you so wish.
"5.
If you
questions
decide to answer
now
with or
attorney,
without an
you
have the
stop the questioning and remain silent
at
time
wish,
you
and the
to ask for and have an
Arizona,
3 Miranda v.
(1966).
Hanson informed them that he borrowed the gun Kurschinsky the farm in and car and went to ask his wife about a canoe. He intended to order to gun, leaped frighten her but she forward and with the speaking gun Hanson did not recall to the went off. shooting Kurschinsky He drove to Mrs. himself. the pain in medical center when he felt a his stomach. suppress Pursuant to a motion to Hanson’s state- hearing July ment, held on 1984. The a was presided suppres- John E. Schneider at the Honorable Durning hearing Attorney sion and ruled that was not interrogation. Hanson’s counsel at the time of the He duty further found that the officers had no to tell public defender was Hanson that available to speak regard him. In voluntariness of confession, "[T]he Hanson’s the court found that: voluntary statement was a statement of free and knowing intelligence. Mr Hanson knew what was going had, it on. He chose to waive the he voluntary statement under all of the circum- was According guarding record, stances.” to the no one Durning Attorney him Hanson ever told present appointed center and had been at medical represent him. appeals, unpublished decision,
The court in an question presented, did not discuss the constitutional assuming error, the but that even admission of stated the statments was harmless error. The court of appeals circumstances, found that under voluntary. statement was preliminary requested matter, court is As a this question public determine the whether state custody defender could seek access to an individual who had been informed of his to counsel and not appoint then counsel for him when the authorities refused him. trial access to court ruled public inappropriately. state defender acted The court appeals question. of unnecessary did not discuss the We find it it not
to discuss the issue since did matter *11 private asking attorney whether there was a to see the public defendant or as here the defender. The issue is determined the fact that the defendant not ask did receiving to see before or after his rights. public authority Miranda The to defender’s act solely statutory authority for an individual is a under 977.05(4)(h) (m), triggered Stats., sec. and and is not legal request is a unless there for assistance.4 The Durning’s appointment characterization of as state’s chasing, public justifica- ambulance or the defender’s appointment tion of the as an efficient exercise of duty authority and does not affect the resolution of this case. requests
Hanson this court hold law personnel his under Arti- enforcement violated 8(1) I, of the Wisconsin Constitution cle sec. 977.05(4)(h) (m), Stats., provides: 4 Sec. "(h) indigent Accept requests legal persons for services from to s. 967.06 or otherwise so entitled under
entitled counsel under the United or this state and the constitution or laws of States when, provide persons legal in the of such with services discretion defender, legal public provision is the state such of services appropriate.... (cid:127) "(m) necessary or incidental to the Perform all other duties chapter.” performance any duty of in this enumerated
207 without questioning "appointed” Hanson his counsel’s presence failing consent to inform Hanson that to counsel was see him. trying prior The to counsel to the initiation adversary proceedings criminal "attaches an as inci- the Fifth dent to Amendment privilege against self State, Jordan v. 449, 462, incrimination.” 93 Wis. 2d (1980). 287 509 protect N.W.2d To this privilege, States Supreme imposed United Court has on the obligation suspect inform a of his have present interrogation. counsel at a custodial Arizona, v. Miranda 437, (1966). U.S. 468-71 Amendment, however, Fifth does not require suspect to advise the of the immediate availabil- Burbine, attorney. Moran v. particular ity 106 S. (1986). Ct.
The facts of Burbine are similar in those Burbine instant case. custody, While his sister attempted legal obtain assistance for him. Since Burbine had an appointment particular public to see a on a previous defender charge, his sister unrelated that public asked for particular public defender. That *12 defender could not be reached. Another public defend- er in the same office contacted the police. That Burbine the attorney police informed that had an from attorney that office who not was available but Burbine’s that she would act legal as in counsel the event the police that place intended to him in a lineup question or him. During a telephone police call to the station, an unidentified police voice told her that the Burbine not be questioning would him in putting a lineup and that through were they with him for the night. informed, however, The not police officers of another department were at the suspect in a murder. At station or that Burbine was interviewed, he did not know the time Burbine was trying to retain counsel or that a that his sister was representa- public actually had volunteered defender tion. telephone attorney’s than an hour after the
Less brought police, Burbine was conversation with interrogation into an room and the conducted concerning the first of a series of interviews session, murder. Prior to each Burbine was informed rights. eventually of and waived his Miranda signed Burbine admitting statements murder. considering request suppress In Burbine’s Supreme purpose statements the Court declared the of warnings dissipate compulsion Miranda "is to interrogation doing, and, in inherent in custodial so abridgement guard against suspect’s of the fifth rights.” established, "As is well amendment Also: now warnings ... are "not themselves '[t]he Miranda protected by [are] the Constitution but instead mea- [suspect’s] right against insure that sures to protected.’” compulsory [is] self-incrimination ... objective to mold conduct for its Their is not Nothing in in sake. the Constitution vests us the own authority of behavior for state to mandate a code wholly unconnected to federal officials privilege.” Id. at 1143. Supreme repeated in Court Burbine principal advantages’ is the
"'[o]ne of the Miranda application,” quoting clarity of its Berkemer ease (1984). McCarty, 1143. 468 U.S. Id. at v. origin of Miranda re- The court discussed competing quirements balancing as a between two interrogations. The first concern concerns custodial
209
police questioning
is "'the need for
as a tool for
effective enforcement of criminal
laws’ cannot be
Bustamonte,
218, 225,
doubted. Shneckloth v.
412 U.S.
(1973).”
2041, 2046,
93
L.
S. Ct.
Ed. 2d 854
competing
interrogation
is,
second
"that
interest
the
process
'inherently
that,
is
coercive’
as a conse-
quence,
police
there exists a substantial risk that the
inadvertently
will
traverse the fine line between
legitimate efforts to elicit admissions and constitution-
impermissible
ally
compulsion.
Quarles,
New York v.
—,
Ct.,
The court also announced: "we are expand require keep the Miranda rules suspect legal represen- abreast of the status of his tation.” Id. at 1144.
The court also observed that the sixth amend- ment to counsel does not attach until after the charges. initiation of formal Id. at 1146. Burbine argued to non-interference in an dealings attorney’s suspect with a criminal arises the *14 moment the relationship formed, or, is at the very least, once the placed defendant is in custodial interro- gation. The Court rejected position. this Burbine,
In the court also determined that the police conduct did not deprive the defendant of the fundamental guaranteed fairness the Due Process Clause of the fourteenth amendment. The court stated: "We do not question that on facts more egregious than presented those here police deception might rise to a level of process a due violation.” However, the court qualified: "We that, hold only on facts, these the challenged conduct falls short of the kind of misbehavior that so shocks the sensibilities of civilized society as to warrant a federal intrusion into processes criminal of the States.” Id. at 1147-48.
However, in Burbine the court correctly noted: "Nothing saywe today disables the States from adopting requirements different for the conduct of employees its and officials as a matter of state law. only We hold appeals the court of erred in construing the Fifth Amendment to the Federal require Constitution to respon- the exclusion of dent’s three confessions.” Id. at 1145.
The state privilege against constitutional self-in- crimination is worded virtually identically its (Wisconsin counterpart in the federal constitution. Constitution, Art. I sec. 8 and United States Constitu- Amendment.) tion Fifth guarantee Both that a person compelled cannot be in criminal case any to be a against witness himself.
We do not suspect’s believe knowledge particular location of a counsel can affect intelligent waiver of his rights constitutional as de- warnings. knowledge
scribed Miranda Since the rights, the location of counsel adds no constitutional suspect not alter the facts of as does the case give them, knows and does not rise to coercive police, knowledge influence such is not relevant suspect’s voluntary rights. to Although decision to waive his suspect ready who waive his *15 might change attorney his mind when told was waiting him, to the see critical factor would the be seeing attorney, intelligent of the not convenience the legal perceived need for counsel. Since the conve- protect- constitutionally nience of the defendant is not particular attorney ed, the location of a is not constitu- tionally required information. required,
If this information were distinctions suspects develop unfairly depending between would persons engage whether on third were the able attorney. of an A services new area of law would develop regarding police particular actions fact attorney building, situations, i.e., was the in the attorney telephone, attorney the on the was the on his way building, attorney immediately to the was the not time, available but be would a definite would a attorney satisfy requirement. substitute Another develop requested line of cases could around who such representation: family, per- friends, the accused’s or haps accomplice, attorney a criminal or the himself has who a reduced caseload. Would the be required inform accused no matter who was seeking representation accused, for the even if such representation sought is out of the self-interest of the party seeking representation?
An infinite number of be circumstances could only envisioned to create a extension new exclusionary Supreme rule. The Court in Burbine protection suspect’s found Miranda sufficient of the rights interrogation constitutional before and found exclusionary no need to further extend the rule. We believe Burbine to be a reasonable consideration of the limit to which Miranda will be extended and that the require greater pro- Wisconsin Constitution does not tection. Since the to counsel and the given by remain silent are the constitution to the rights. defendant, he alone can exercise those Neither family his nor his are threatened with they accusations, nor do have the defendant’s knowl- edge including knowledge case, of the the defendant’s guilt they subject innocence, of his own nor are pain possibly guilty of the defendant’s conscience. Therefore, no one but the accused can make the decision to make a statement to the or to ask for making the assistance of counsel in his decision. Since rights person granted both the and the are to, accused, are the same under both the federal *16 logical Constitutions, and Wisconsin there is no reason to find that someone other than the accused could rights exercise those under the Wisconsin Constitu- tion.
The trial court in this case found the defendant’s
voluntary.
appellate
statements
On review an
court
findings
question
will overturn factual
on the
only they
against
great weight
voluntariness
if
are
the
preponderance
and clear
of the evidence. State v.
(1978).
Verhasselt,
647, 653, 266
83 Wis. 2d
N.W.2d 342
Credibility is a matter for the trier of fact. Norwood v.
(1976). Any
State,
343, 363,
74 Wis. 2d
246
801
N.W.2d
testimony
conflicts in
are resolved in favor of the trial
findings. Verhasselt,
court’s
Hanson claims that when the did not tell him that an him, wanted to see he was "held incommunicado.” He claims that since he was held voluntary incommunicado, his confession was not his waiver was not informed. The defendant was not Upon held incommunicado the authorities. arriv- ing emergency at the room of the Lakeview Medical shooting Center after stomach, himself in the surgery recovery defendant inwas and then in the room. He was under constant medical attention and During was in and out of consciousness. the times he awake, he carried on conversations with doctors parents permitted and nurses. Hanson’s were not visit since he did not want to confront them and asked hospital keep away. staff to them May day surgery
On arrest, after his police hospital a.m., at about 9:30 determined from personnel capa- that the defendant was coherent and communicating ble with them. Peterson, Tom Nursing Director of at the Center, Lakeview Medical Judy reporting checked with Nurse Fischer before the defendant was coherent. Hanson willing said he understood his and was to make consulting attorney. a statement without No promises, physical threats, abuse are *17 compel claimed to have been used to the defendant to interrogation attorney. submit to in the absence of an
214 years completed He was then 29 old and had grade in eleventh school.
Although
suspect
failure
to advise
of the imme-
availability
particular
attorney might
diate
of a
arguably
intelligence
affect the
of defendant’s decision
dispense
impossible
imagine
counsel,
with
it is
how this omission would affect the
voluntariness
his statement. Facts about which the defendant has no
knowledge
hardly
any degree
can
exert
of coercion on
him. Burbine stated at
One that Hanson was suffering shooting mental stress as a result of his wife. concerned, however, fifth amendment not is pressures psychological "with moral to confess emanating from sources other than official coercion.” (1985). Oregon Elstad, 1285, 1291 105 v. S. Ct. There is physical no in evidence this case defendant’s any being condition had effect his on state of mind making voluntary police. in statements to the Nor is any milligrams there evidence that the ten of mor- phine given approximately eighty Hanson minutes interrogation began before the had on effect voluntariness his waiver or statement. Hanson analgesic, fact, testified that it "a made lot easier to think.” supports findings
The record the factual of the findings, court, circuit and based on those we rule that totality circumstances, under of the Hanson’s voluntary beyond statement was a reasonable doubt. State, 343, 363-64, Norwood v. 74 Wis. 2d 246 N.W.2d (1976). agree Supreme We with the United States Court occurring presence that an event outside the of the *19 entirely defendant and unknown to him can have no bearing comprehénd capacity knowingly on his to relinquish right. a constitutional Burbine 106 S. Ct. at hold, addition, 1141. We in that the Wisconsin Consti- require police keep suspect tution does not "to legal, representation” abreast of the status of his when requested representation. he has not such at Id. 1144. State, This court stated in Hover v. 180 Wis. (1923) 411, 192 [Art. N.W. 89 8 I "Sec. of the Wisconsin corresponds Constitution] in substance with art. V and respectively, sec. 11 is identical with art. IV of the amendments to United States constitution.” This Hoyer squarely aligned rulings court in itself with the Supreme of the United States Court. Id. at 415. We see legal position no reason to deviate from that in this Supreme If case. and when the United States Court interprets granting the federal constitution as lesser persons than this court believes are extended to Constitution, under the hold; Wisconsin we will so sought however, the rule in this case is not one of those. 967.06, Stats.,
Section is a statement of the legislature practicable person that "as soon as after a has been detained or arrested connection with punishable by offense which is incarceration ... the person shall be informed of his or her to practicable” counsel.” The words "as soon as are not require case-by-case analysis. defined and In the case, instant the defendant came to the attention of
217 police arriving hospital gun after at the awith surgical wound the abdomen. He received treat- appears day. It ment that same his freedom was not physically him, if available even he could have placed by it, exercised after he was medical authori- private hospital ties in a room. From that time on he guarded protection was for own his hospital. that assure he would not leave the clear record is defendant was not in condition he receive advice that was entitled to counsel under sec. 967.06 until the had authorities verified he was hospital persons. coherent with the It then part he was advised his to an as a warnings interrogation. the Miranda before A statute should not be construed to reach an Disch, result. 225, 233, absurd State 129 v. Wis. 2d (1986). practica- N.W.2d To construe "as soon as ble” to mean that should read Miranda *20 rights suspect clearly ato to unable understand them police conducting when the have no intent of interrogation clearly would be absurd. significant argues
It is that the defendant that his voluntary statements were not due to his confused physical drug mind, state condition influence yet practicable” claims that it was "as soon as to right 967.06, Stats., him advise under sec. of his to warnings counsel at a time before the Miranda were given. practicable As soon as must mean at a time person comprehend when the detained is able his right to counsel. Defendant states did not even by given occur the time of Miranda were fact, him. In the defendant testified he did not hospital May remember events in the on 9. Section county 967.06 was not violated the Barron authori- ties. argues
Lastly, police Hanson "deceived police practiced deception him omission.” The no they regard- because made no statements whatsoever ing presence counsel, or absence of and Hanson neither asked for the counsel nor if asked one was presence nearby. Since the of available counsel was not relevant waiver, the exercise of Hanson’s police duty lawyer. had no to inform Hanson about the duty inform, In the absence of a there can be no deception by omission.
The conduct of the did not violate the provisions United States or Wisconsin constitutional protecting against self-incrimination, nor the defend- process counsel, ant’s 967.06, due nor sec. Stats.
By ap- the Court.—The decision of the court of peals is affirmed. (dissenting). ABRAHAMSON,
SHIRLEY S. J. presents following This case fact situation: Your hospitalized injured, adult son is and under arrest for allegedly committing a serious crime. You hire a lawyer previously represented your who has son. The goes lawyer to the and advises them that she is your attorney, son’s that she wants to consult with your your questioned son and that son is not to be present. unless she is your
In Wisconsin son has a to be taken promptly judge gets arrest; before a after he addition- *21 rights judicial process al once the is initiated. Your judge promptly son, however, is not taken before a as possible. police question day Instead, as the use the get your son and a confession. your right protected by
In has a Wisconsin son — and the federal state constitutions and the Wisconsin represented by during police statutes —to be questioning. counsel police carefully correctly The and advise your lawyer he son that has the to a and if that appointed lawyer he wants a one be for him will at public expense represent during him or before questioning. police your But the do not tell son that a lawyer you immediately whom have hired is available speak given opportunity to accept him. with Your son is no reject assistance from counsel hired for him. police keep deliberately lawyer away Indeed, the your question assuring him, from son even after question lawyer they not will him. Your son makes a statement. police prevent your
The action take to son knowing parents lawyer from that his had hired a for only possible him had one motivation: to dissuade your exercising son from his constitutional speak lawyer. awith Supreme
The United States Court has said it will processes not into intrude the criminal of the state to police condemn this kind of conduct as a matter of federal The Court law. has declared each state may adopt requirements its own for the conduct its employees a officials as matter of state law. (1986). By Burbine, 1135, 1145
Moran v. 106 S. Ct. not imposing requirement federal constitutional on by encouraging adopt states and the states to their governing own conduct, rules the United States Supreme recognizes importance Court state protecting courts in individual and societal system. our interests in federal Id. at 1148. majority struggles to show that conduct in this case fits within the letter of the law *22 represented during entitles an accused to be which questioning. But it is clear that spirit good It conduct violates the of the law. is with reason that the Wisconsin Constitution exhorts us blessings government only that "the of a free can be justice firm ... maintained a adherence to frequent principles.” recurrence to fundamental Art. I, sec. 22. give weight I aware of and due
While am weighty needs of law enforcement officers and the investigation, objectives I social of crime conclude that statutory this court demeans the defendant’s attorney by constitutional to consult with an giving approval kept its to conduct that seal seeing lawyer family his accused from retained for suppress him. I would the confession.