STATE of Wisconsin, Plaintiff-Appellant, v. Edward Terrell JENNINGS, Defendant-Respondent.
No. 00-1680-CR
Supreme Court of Wisconsin
May 1, 2002
2002 WI 44 | 243 Wis. 2d 228 | 647 N.W.2d 142
Oral argument October 3, 2001.
For the defendant-respondent there was a brief and oral argument by Margaret A. Maroney, assistant state public defender.
¶ 1. DIANE S. SYKES, J. This is an interlocutory appeal of a circuit court order suppressing the defendant‘s custodial statement in which he implicated himself in a homicide. The circuit court concluded that the defendant‘s statement was made after he invoked his right to counsel under Miranda v. Arizona, 384 U.S. 436 (1966). The court‘s order was based primarily on Wentela v. State, 95 Wis. 2d 283, 290 N.W.2d 313 (1980), a decision of this court that the State asserts has been effectively overruled by the United States Supreme Court‘s decision in Davis v. United States, 512 U.S. 452 (1994).
¶ 2. The court of appeals certified the case to us on the question of “whether the court of appeals may, must, or must not follow a decision of the Wisconsin Supreme Court which is directly on point, but which appears to conflict with subsequent precedent from the United States Supreme Court.”
¶ 3. We conclude that when confronted with a direct conflict between a decision of this court and a later decision of the United States Supreme Court on a matter of federal law, the court of appeals may, but is not required to, certify the case to us pursuant to
¶ 4. The underlying substantive issue in the case concerns the sufficiency of the defendant‘s request for counsel during his custodial interrogation—more specifically, whether his statement, “I think maybe I need to talk to a lawyer,” unequivocally invoked his right to counsel such that any subsequent statements must be suppressed. In Wentela, 95 Wis. 2d at 292, we held that the statement, “‘I think I need an attorney,’ or ‘I think I should see an attorney,‘” constituted a sufficient request for counsel. In State v. Walkowiak, 183 Wis. 2d 478, 486-87, 515 N.W.2d 863 (1994), we further held that when a suspect makes an equivocal reference to counsel—there, it was the question “Do you think I need an attorney?“—then “[t]he police must cease all interrogation, except they may attempt to clarify the suspect‘s desire for counsel.”
¶ 5. The validity of both holdings—what constitutes a sufficient request for counsel and the obligations of the police when an ambiguous or equivocal request is made—was called into question by the Supreme Court‘s decision in Davis. There, the Supreme Court concluded that the statement “Maybe I should talk to a lawyer” was equivocal and therefore not sufficient to invoke the right to counsel under the Fifth Amendment. Davis, 512 U.S. at 459-62. The Court furthеr held that when a suspect makes an ambiguous or equivocal reference to counsel, the police need neither cease questioning nor clarify the suspect‘s desire for counsel, although the Court did say that the latter “will often be good police practice.” Id. at 461.
I
¶ 7. On June 25, 1999, defendant Edward Jennings was arrested in Loves Park, Illinois, in connection with a Rock County, Wisconsin, homicide investigation. After Jennings’ arrest, two officers from the City of Beloit Police Department, Detectives Kreitzmann and Anderson, went to Loves Park to interview Jennings.
¶ 8. Detective Kreitzmann advised Jennings of his constitutional rights pursuant to Miranda and obtained a valid waiver of those rights. Detective Kreitzmann, interviewing Jennings alone, began questioning him about the Rock County homicide. Jennings, who is blind, initially denied any knowledge or involvement. After further questioning, Jennings admitted that he was present at the scene when the homicide occurred and that he had heard three gunshots.
¶ 9. When Detective Kreitzmann asked Jennings if he would put the statement in writing, Jennings replied, “I think maybe I need to talk to a lawyer.” Detective Kreitzmann immediately asked Jennings, “Are you telling me you want a lawyer?” Jennings responded with the same statement: “I think maybe I need to talk to a lawyer.” Detective Kreitzmann testified that at that point, because he was unable to clarify whether Jennings was specifically asking for an attor-
¶ 10. Approximately 15 minutes later, Detective Anderson entered the room and began to question Jennings. Detective Anderson first asked Jennings if he remembered his Miranda warnings. Jennings replied that he did. Detective Anderson also asked Jennings if he would be willing to speak with him. Jennings said that he would. During the questioning by Detective Anderson, Jennings again placed himself at the scene of the crime, and implicated himself in the homicide by describing a confrontation between himself, the victim, and several other people that immediately preceded the shooting. Jennings did not ask for a lawyer at any time during Detective Anderson‘s questioning.
¶ 11. Jennings was charged with being party to the crime of first-degree intentional homicide in violation of
II
¶ 12. In its certification order, the court of appeals has essentially asked for guidance in resolving the
¶ 13. We clearly have the power to impose such a rule.
¶ 14.
¶ 15. Although unquestionably broad and flexible, our superintending authority will not be invoked lightly. In re Phelan, 225 Wis. 314, 321, 274 N.W. 411
¶ 16. We decline to exercise our superintending аuthority to interpose a rule requiring certification of all cases that present a conflict between our precedent and subsequent United States Supreme Court precedent. Requiring certification would interfere with the discretion of the court of appeals in its power to decide cases before it, including the decision whether or not to certify a case to this court. See Phelan, 225 Wis. at 320 (superintending authority generally will not be exercised to interfere with the discretion of another court).
¶ 17. While we decline to establish a rule requiring it, certification will certainly be highly appropriate in a case such as this, in which a controlling decision of this court has arguably been overruled by a subsequent decision of the United States Supreme Court. Only this court may “overrule, modify or withdraw language from a previous [state] supreme court case.” In re Cook v. Cook, 208 Wis. 2d 166, 189, 560 N.W.2d 246 (1997); see also State v. Grawien, 123 Wis. 2d 428, 432, 367 N.W.2d 816 (Ct. App. 1985).
¶ 18. But certification need not be mandatory, because the Supremacy Clause of the United States Constitution governs the outcome of any direct conflict between state and federal supreme court precedent on a matter of federal law, regardless of whether the conflict
¶ 19. Accordingly, the court of appeals may, in its discretion, and pursuant to
¶ 20. The substantive issue in this case concerns the sufficiency of the defendant‘s invocation of his right to counsel mid-way through his custodial interrogation. This is a question of constitutional fact that we review under a two-part standard. State v. Henderson, 2001 WI 97, ¶ 16, 245 Wis. 2d 345, 629 N.W.2d 613. We uphold the circuit court‘s findings of historical or evidentiary fact unless they are clearly erroneous. Id. We review independently the lower court‘s application of constitutional principles to those evidentiary facts. Id.
¶ 21. In State v. McMorris, 213 Wis. 2d 156, 570 N.W.2d 384 (1997), a Sixth Amendment right to counsel case, we discussed the rationale for the two-part standard of review applicable to questions of constitutional fact:
Questions of constitutional fact are sometimes referred to as mixed questions of fact and law, requiring the court to determine what happened and whether the facts found fulfill a particular legal standard. Ordinarily, when reviewing a mixed question of fact and law, appellate courts engage in a two-part inquiry. The first inquiry relates to the circuit court‘s findings of fact. Neither the court of appeals nor this court will reverse a circuit court‘s findings of historical or evidentiary fact unless they are clearly erroneous. The second inquiry relates to the question whether the historical or evidentiary facts satisfy the relevant constitutional standard. Such an inquiry is mаde by this court independent of the circuit court and court of appeals. However, in deciding whether the facts satisfy the constitutional standard this court may benefit from and draw upon the reasoning of the circuit court and court of appeals and may draw upon the circuit court‘s observational
advantage. Nevertheless, this court independently measures the facts against a uniform constitutional standard.
The principal reason for independent appellate review of matters of constitutional fact is to provide uniformity in constitutional decision making. In applying the skeletal constitutional rule, appellate courts flesh out the rule and provide guidance to litigants, lawyers, and trial and appellate courts.
Id. at 165-66 (footnotes omitted).
¶ 22. There is no dispute in this case that Jennings was properly advised of his rights undеr Miranda and that he voluntarily waived his right to remain silent and agreed to be questioned by Beloit Police Detectives Kreitzmann and Anderson without an attorney present. The central evidentiary findings relevant to the suppression motion concern the circumstances surrounding Jennings’ mid-interrogation statement to Detective Kreitzmann, “I think maybe I need to talk to a lawyer.”
¶ 23. According to the circuit court‘s written factual findings, Jennings made the reference to a lawyer after Detective Kreitzmann asked if he would be willing to put his verbal statement in writing. When Jennings said, “I think maybe I need to talk to a lawyer,” Detective Kreitzmann “tried to clarify if the defendant was asking for an attorney, and could never get the defendant to give a definitive yes or no answer as to whether he wanted an attorney.” Detective Kreitzmann then terminated the interrogation “bеcause he decided to take the safe route.” Finally, “about fifteen minutes later, Detective Anderson began questioning the defen-
¶ 24. The real dispute here is whether these historical facts are sufficient to establish an unequivocal request for counsel such that Jennings’ subsequent statements to Detective Anderson must be suppressed. Applying Davis, Wentela and Long, the circuit court concluded that Jennings’ statement, “I think maybe I need to talk to a lawyer,” was sufficient to constitute an unambiguous request for counsel.
¶ 25. Jennings characterizes this as a finding of evidentiary or historical fact entitled to deference. It is not. The legal sufficiency of a defendant‘s invocation of the right to counsel during a custodial intеrrogation is determined by the application of a constitutional standard to historical facts. As noted above, an appellate court independently measures the historical facts against a uniform constitutional standard, benefiting from, but not deferring to, the circuit court‘s decision. See e.g., Long, 190 Wis. 2d at 393-97; State v. Esser, 166 Wis. 2d 897, 904, 480 N.W.2d 541 (Ct. App. 1992).
¶ 26. The constitutional standards applicable here derive from Miranda, Edwards v. Arizona, 451 U.S. 477 (1981), and Davis. In Miranda,5 the United States Supreme Court recognized the right to have counsel present during custodial interrogation to safeguard the right against compulsory self-incrimination
¶ 27. While the Supreme Court in Edwards established a bright-line, no-further-questioning rule applicable to clear and unequivocal requests for counsel during custodial interrogation, it did not address the subject of requests for counsel that were not so clear and unequivocal. Thirteen years later it did so, in Davis.
¶ 28. The case arose in the context of a Navy court martial. Robert Davis was under investigation by the Naval Investigative Service (NIS) for the beating death of another sailor. Davis, 512 U.S. at 454. He was interviewed by NIS agents and, after being advised of his rights consistent with Miranda and the Uniform Code of Military Justice, waived his right to remain silent and his right to counsel. Id. at 454-55. After about an hour and a half of questioning he said, “Maybe I should talk to a lawyer.” Id. at 455. The NIS investigators attempted to clarify Davis‘s statement, and Davis responded, “No, I‘m not asking for a lawyer.” Id. Davis then continued to answer questions for about another hour. Id. He then said, “I think I want a lawyer before I say anything else.” Id. The NIS agents then stopped all questioning. Id.
¶ 29. Davis moved to suppress his statement. The military judge denied the motion, Davis was convicted,
¶ 30. The Supreme Court emphasized that the inquiry is an objective one. Id. “Although a suspect need not ‘speak with the discrimination of an Oxford don,’ post, at 476 (Souter, J., concurring in judgment), he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Id. Any lower standard “‘would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity.‘” Id. at 460 (citing Michigan v. Mosley, 423 U.S. 96, 102 (1975)).
¶ 31. The Supreme Court declined to extend Edwards to require officers to stop an interrogation when a suspect makes any reference to an attorney. Davis, 512 U.S. at 459-60. In addition, the Supreme Court refused to adopt a requirement that officers must ask clarifying questions to resolve an ambiguous reference to counsel. Id. at 461. “[W]hen a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney.” Id. But the Court was “unwilling to create a third layer of prophylaxis to prevent police questioning when the
¶ 32. The two holdings of Davis—that officers need neither stop an interrogation nor ask clarifying questions when a suspect makes an equivocal request for counsel—effectively overrule two prior decisions of this court, at least as a matter of federal constitutional law.6 In Wentela, a post-Miranda, pre-Edwards case, we held that the defendant‘s statement “I think I need an attorney” or “I think I should see an attorney” constituted a sufficient request for counsel. Wentela, 95 Wis. 2d at 292. We declined, however, to adopt a per se rule requiring the police to cease questioning a suspect who invokes his right to counsel, borrowing instead from thе more flexible approach of Michigan v. Mosley, 423 U.S. 96, a “right to remain silent” case. Wentela, 95 Wis. 2d at 293-95; see also Leach v. State, 83 Wis. 2d 199, 265 N.W.2d (1978).
¶ 34. Davis also undermines our decision in Walkowiak. There, we held that the defendant‘s statement, “Do you think I need an attorney?” was equivocal and therefore insufficient to invoke the right to counsel. Walkowiak, 183 Wis. 2d at 479. We then adopted a rule that when a suspect makes an equivocal or ambiguous reference to counsel, “[t]he police must cease all interrogation, except they may attempt tо clarify the suspect‘s desire for counsel. Interrogation may not begin anew until the ambiguity is resolved.” Id. at 486-87.
¶ 35. Our decision in Walkowiak was tethered to the Fifth and Fourteenth Amendments and Miranda/Edwards jurisprudence up to that point. Davis was decided a month later. The following year, we acknowledged the conflict between Walkowiak and Davis, but did not explicitly overrule Walkowiak.7 See State v. Jones, 192 Wis. 2d 78, 95 n.4, 532 N.W.2d 79 (1995). We now do so.
¶ 36. Applying Davis, we conclude that Jennings’ statement to Detective Kreitzmann, “I think maybe I need to talk to a lawyer,” was substantially equivalent to Davis‘s statement, “Maybe I should talk to a lawyer.” As such, it was “ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel.” Davis, 512 U.S. at 459. Therefore, Jennings’ statement was insufficient to invoke his right to counsel under the Fifth and Fourteenth Amendments, and the officers were not required to cease questioning him. Nor were they required to clarify his statement. Accordingly, there is no federal constitutional impediment to the admission of Jennings’ statement to Detective Andersоn.
IV
¶ 37. Finally, we are invited to interpret the Wisconsin Constitution‘s right against self-incrimination more broadly than the federal right, and establish a state constitutional rule requiring the police to clarify ambiguous references to counsel during custodial interrogations. This implicates “[i]ssues of federalism and sovereignty,” since “[t]he holdings of the United States
¶ 38. We have said that “[t]his court . . . will not be bound by the minimums which are imposed by the Supreme Court of the United States if it is the judgment of this court that the Constitution of Wisconsin and the laws of this state require that greater protection of citizens’ liberties ought to be afforded.” State v. Doe, 78 Wis. 2d 161, 172, 254 N.W.2d 210 (1977). We have further recognized that it is “our responsibility to examine the State Constitution independently. This duty exists evеn though our conclusions in a given case may not differ from those reached by the [United States] Supreme Court when it interprets” the federal constitution. Ward, 2000 WI 3, ¶ 59.
¶ 39. However, we have also noted that any decision to engage in an upward departure from the federal constitutional standards adopted by the United States Supreme Court for purposes of our own state constitutional law must itself be grounded in requirements found in the state constitution or laws. State v. Agnello, 226 Wis. 2d 164, 180–81, 593 N.W.2d 427 (1999). “Where . . . the language of the provision in the state constitution is ‘virtually identical’ to that of the federal provision or where no difference in intent is discernible, Wisconsin courts have normally construed the state constitution consistent with the United States Supreme Court‘s construction of the federal constitution.” Id. (citing State v. Tompkins, 144 Wis. 2d 116, 133, 423 N.W.2d 823 (1988)).
¶ 41. Similarly, in State v. Sorenson, 143 Wis. 2d 226, 259-60, 421 N.W.2d 77 (1988), we declined to expand our state constitutional jurisprudence beyond the requirements of the federal constitution on the issue of a prosecutor‘s cross-examination and closing argument comment on a defendant‘s post-arrest silence when a defendant testifies in his own defense:
The defendant further argues that
art. I, sec. 8 of the Wisconsin Constitution , which protects against self-incrimination, might be interpreted more liberally than federal fifth amendment provisions to shield his silence. In the past, our cases interpreting the right to remain silent have paralleled federal analysis used for theUnited States Constitution and Amendments .... Further, in comparing the language of the federal self-incrimination provision with that of the Wisconsin section, we note the federal amendment uses the word “shall,” while the Wisconsin Constitution uses the word,“may.” While both protect against self-incrimination there can be no logical argument that the state constitutional provision creates a broader right since the language of the Wisconsin Constitution is certainly no stronger than that used in the United States Constitution. As a result, we find no basis for interpreting state constitutional language beyond the articulated scope of federal constitutional guarantees in this case.
Id. at 259-60 (citations and footnotes omitted).
¶ 42. The same analysis applies here. We cannot discover any meaningful difference between the state аnd federal constitutional protections against compulsory self-incrimination that would justify or require a “third layer of prophylaxis” that the United States Supreme Court has found unnecessary. We agree with Justice O‘Connor‘s observation in Davis that the police are well-advised to clarify a suspect‘s ambiguous reference to counsel, in order to “protect the rights of the suspect by ensuring that he gets an attorney if he wants one, and ... minimize the chance of a confession being suppressed due to subsequent judicial second-guessing....” Davis, 512 U.S. at 461. We decline, however, to impose a clarification requirement as a matter of state constitutional law.9
V
¶ 43. Accordingly, we conclude that the court of appeals may, but need not necessarily, certify to this court a case that presents a direct conflict between a decision of this court and a subsequent decision of the United States Supreme Court on a matter of federal law. The Supremacy Clause of the
¶ 44. Because Jennings’ statement to Detective Kreitzmann, “I think maybe I need to talk to a lawyer,” was equivocal under Davis and therefore insufficient to invoke his right to counsel under Edwards and Miranda, the officers were nоt constitutionally required to stop questioning him, nor were they required to clarify his intentions regarding counsel. We reverse the circuit court‘s order granting Jennings’ suppression motion, and remand for further proceedings.
By the Court.---The order of the Rock County Circuit Court is reversed and the cause is remanded.
¶ 46. The majority opinion holds that when a suspect makes an equivocal request for an attorney during custodial questioning, law enforcement officers can continue the questioning as if the suspect had said nothing about an attorney.
¶ 47. I dissent for three reasons: The majority opinion contravenes concepts of federalism and state sovereignty; Wisconsin‘s rule requiring law enforcement officers to clarify a suspect‘s еquivocal request for an attorney is the prudent rule; and Wisconsin constitutional jurisprudence supports interpreting the Wisconsin Constitution as requiring law enforcement officers to clarify a suspect‘s equivocal request for an attorney. I cannot join an opinion that undermines the interests of law enforcement to safeguard confessions from suppression by a court. I cannot join an opinion that jeopardizes the right of a suspect to an attorney and a full and fair trial. And I cannot join an opinion that ignores more than 140 years of Wisconsin law.
I
¶ 48. The U.S. Supreme Court has made it clear that the Miranda safeguards were not intended to
¶ 49. Under our system of federalism and state sovereignty, the U.S. Supreme Court has tossed the ball back to each state court to determine whether the state should require, as a matter of state constitutional law or as a matter of a state supreme court‘s superintending authority, that law enforcement officers clarify a suspect‘s equivocal request for an attorney. This court has, in my opinion, now fumbled that ball.
II
¶ 50. The Wisconsin rule requiring law enforcement officers to clarify a suspect‘s equivocal request for an attorney is generally accepted as the prudent rule to protect suspects who do not have a confident command of the English language or do not assert themselves.4
¶ 51. In Davis, during custodial interrogation the suspect said “Maybe I should talk to a lawyer.” The federаl officers in Davis questioned the suspect to clarify whether he wanted an attorney. The suspect then unequivocally stated that he was not asking for an attorney. The questioning continued. The suspect argued before the U.S. Supreme Court that questioning should have stopped at his equivocal request for an attorney. The U.S. Supreme Court rejected the suspect‘s argument and held that questioning did not have to cease at the equivocal request.
¶ 53. In further dicta, the five-justice majority strongly advocated that law enforcement officers clarify a suspect‘s equivocal request for an attorney, stating that “it will often be good police practice for the interviewing officers to clarify whether or not [a suspect] actually wants an attorney.”6 The majority opinion in the present case similarly opines. See majority opinion at ¶ 42.
¶ 54. The majority opinion cites no authority for the proposition that it is unwise for law enforcement officers to ask clarifying questions. Indeed, the authors of the seminal work on law enforcement interrogation procedure stated that in light of Davis, the “prudent course” for an interrogator to follow after receiving a suspect‘s equivocal request for an attоrney is to clarify the suspect‘s desires by simply asking whether the suspect wants an attorney.7
¶ 56. The practice of clarifying the suspect‘s equivocal request for an attorney will “help protect the rights of the suspect by ensuring that he gets an attorney if he wants one,” declared the Davis court.9
¶ 57. Clarifying the suspect‘s equivocal request for an attorney, declared the Davis court, also “will minimize the chance of a confession being suppressed due to subsequent judicial second-guessing as to the meaning of the suspect‘s statement regarding coun
¶ 58. Thus the rule adopted by the majority opinion today puts law enforcement officers at their peril when a suspect has made what might appear to be an equivocal request for an attorney. Continuing questioning without clarifying the suspect‘s request jeopardizes the admission of a confession or other evidence.
¶ 59. Because the Davis rule places law enforcement officers in this predicament and endangers a suspect‘s constitutional rights, courts have greeted the Davis decision “with less than total enthusiasm,” according to a leading text in criminal procedure that is often cited by this court.12 Indeed some state courts, including the supreme court of our neighboring state of Minnesota, have rejected the Davis rule.13
¶ 60. Since 1994, Wisconsin law has required that law enforcement officers clarify an equivocal request for an attorney if questioning is to continue.14 This rule of law has apparently worked well in Wisconsin. The State does not claim that the rule has created any problems for law enforcement officers or that the rule has interfered with criminal investigations. We ought not to abandon our prudent rule in favor of a problematic rule such as the one adopted by the majority opinion.
III
¶ 61. Finally, more than 140 years of Wisconsin constitutional jurisprudence supports interpreting the Wisconsin constitutional privilege against self-incrimination,
¶ 62. The majority opinion ignores Wisconsin jurisprudence by ignoring the state constitutional rights to a full and fair trial which rest, according to the Carpenter case, on the right to an attorney and the interaction of that right with the constitutional privilege against self-incrimination.
- The majority opinion states that the privilege against compulsory self-incrimination is almost identical in the texts of the federal and Wisconsin constitutions. I agree.
- The majority opinion states that the Wisconsin Supreme Court has ordinarily, but not always, construed the Wisconsin Constitution consistent with the U.S. Supreme Court‘s construction of the U.S. Constitution. I agree.
- The majority opinion states that no basis exists to interpret the language of the Wisconsin Constitution on the privilege against self-incrimination as creating guarantees beyond the guarantees under the U.S. Constitution. I disagree.
¶ 64. The majority opinion errs because it ignores our own state‘s constitutional history that provides a basis to interpret the Wisconsin constitutional provision on the privilege against self-incrimination beyond the scope of the U.S. Constitution. The majority opinion fails to examine Wisconsin‘s history of protecting the state constitutional right to an attorney as the means of ensuring a full and fair trial and the nexus between the right to an attorney at trial and the state constitutional privilege against self-incrimination. The majority opinion has forgotten the admonition of Justice Smith in 1855 urging this court to construe its own state constitution to ascertain its true intent and meaning. “The people then made this constitution, and adopted it as their primary law. The people of other states made for themselves respectively, constitutions which are con
¶ 65. Wisconsin has a long and cherished history of protecting an accused‘s right to an attorney under the
¶ 66. Our court in Carpenter reasoned that Wisconsin constitutional rights to a full and fair trial such as “to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf, etc.” were meaningless when an accused did not have the ability to exercise those rights by employing an attorney. The court stated:
And would it not be a little like mockery to secure to a pauper these solemn constitutional guaranties for a fair and full trial of the matters with which he was charged, and yet say to him when on trial, that he must employ his own counsel, who could alone render these guaranties of any real permanent value to him.
....
But surely the citizens of a county are vitally more interested in saving an innocent man from unmerited punishment than in conviction of a guilty one. ....
Why this great solicitude to securе him a fair trial if he cannot have the benefit of counsel?17
¶ 67. Similar reasoning applies in the present case. According to Carpenter, to protect an accused‘s state constitutional guarantees for a full and fair trial, a suspect is given an attorney at trial at government expense. Following the reasoning in Carpenter, the state constitutional guarantees for a fair and full trial and an attorney at trial would be hollow rights if a conviction at trial is already assured because the suspect incriminates himself or herself during custodial questioning.18 Thus a suspect is given the right to an attorney during custodial questioning to help ensure that an accused gets the benefit of the constitutional guarantee against self-incrimination.19 A suspect‘s right to an attorney at custodial questioning to protect the privilege against self-incrimination is thus intricately intertwined with an accused‘s state constitutional right to a full and fair trial and a meaningful state constitutional right to an attorney at trial.
¶ 68. The state constitutional history protecting a full and fair trial by granting a meaningful right to an attorney is over 140 years old. In keeping with this history, the Wisconsin Constitution guarantee against
¶ 69. The gamesmanship of ignoring a suspect‘s statements regarding an attorney during custodial questioning merely invites the public to view the behavior of law enforcement officers as marked by trickery and deceit and to view Wisconsin constitutional guarantees to the criminally accused with cynicism. The result is a loss of public trust and confidence in law enforcement, the rule of law, and the courts, thereby undermining the credibility of the legal system itself.
¶ 70. In order for law enforcement and the courts to be successful in carrying out their responsibilities, they must have the cooperation, trust, and confidence of the public. The majority opinion undermines that trust and confidence, ignores Wisconsin jurisprudence, and betrays Wisconsin‘s constitutional guarantees. Therefore, I dissent.
¶ 71. I am authorized to state that Justices WILLIAM A. BABLITCH and ANN WALSH BRADLEY join this opinion.