McNeil v. Wisconsin – Oral Argument – February 25, 1991

Media for McNeil v. Wisconsin

Audio Transcription for Opinion Announcement – June 13, 1991 in McNeil v. Wisconsin


William H. Rehnquist:

We’ll hear next in argument No. 90-5319, Paul McNeil v. Wisconsin.

Spectators are admonished to remain silent.

The Court is still in session.

Do not talk until you get outside the courtroom.

Mr. Luck, you may proceed whenever you’re ready.

Gary M. Luck:

Thank you, Mr. Chief Justice, and may it please the Court:

The relevant facts in this case are not in dispute.

I would like to outline them briefly and then propose three scenarios that support McNeil’s proposed rule that a defendant who requests or appears with counsel at an initial appearance may not be questioned by police while he remains in continuance custody unless the defendant initiates that interrogation.

The defendant was taken into custody on May 13th, 1987 in Omaha.

That was pursuant to a Milwaukee, Wisconsin warrant and complaint for an armed robbery which had occurred in the Milwaukee jurisdiction.

He waived extradition.

On May 20th, after being held in continuous custody in Omaha, he was taken into custody by two Milwaukee deputy sheriff detectives.

At the time that they took him into custody, they advised him of his Miranda rights from a written text which is used by the sheriff’s department… that’s in the appendix.

And one of the rights read to him was if you cannot afford to hire a lawyer, one will be appointed to represent you at public expense before or during any questioning if you so choose.

McNeil refused to make a statement at that time and did not request counsel.

He was accompanied by officers that day in a search of Omaha for a codefendant which was unsuccessful.

On May 21st, McNeil was transferred to the Omaha Airport for conveyance back to Milwaukee.

During that transportation, Detective Smukowski of the Milwaukee Sheriff’s Department advised McNeil that it would be to his advantage if he would tell his side of the story referring to the armed robbery and to a homicide investigation which was taking place involving a Milwaukee County Sheriff by the name of Butts and the Caledonia Police Department, which is part of Racine County, a separate jurisdiction from Milwaukee County.

Smukowski, after advising McNeil that it would be in his interest to cooperate and tell his side of the stories, was met by a silence from the part of McNeil.

He did not make any statements concerning either of those offenses.

McNeil was returned to Milwaukee on the evening of the 21st.

The following morning, May 22nd, which was a Friday, he was brought before a court commissioner, a judicial officer, and with him at that time was a public defender.

When McNeil appeared at the initial appearance, he was advised of the penalties for armed robbery.

He acknowledged it by saying, I do, when he was asked if he understood, and those are the only words he spoke at that initial appearance.

Bail was set at $25,000 and a preliminary examination was set.

That’s the appearance of May 22nd that’s set forth in the… joint appendix at page 8?

Gary M. Luck:

That’s correct, Justice Kennedy.

Is it… is it the practice in this State for magistrates to advise suspects generally of their rights?

I see that wasn’t done here.

Gary M. Luck:

No, unfortunately, because of the crush of cases in Milwaukee County, sometimes the niceties of informing defendants of their full panoply of rights, which they might get from a Federal magistrate, do not take place.


Is there any requirement in the Wisconsin statute–

Gary M. Luck:


–that this be done by the arraigning officer?

Gary M. Luck:

There are requirements.

But one of the requirements does not include… I ought to rephrase that… the magistrate is not required to advise the defendant of his right to remain silent at that initial appearance, unlike under Rule 5 in the Federal system.

The magistrate is suppose to advise the defendant of the charges against him, of his right to counsel, to set bail, his right to a preliminary examination.

And if you will look at the text of that initial appearance, you’ll notice that there’s really a colloquy that goes on between defense counsel and the magistrate and the only participation of the defendant is to acknowledge what he has been charged with.

The… to push that a little further, Your Honor, the public defender has a meeting with the defendants in Milwaukee County prior to their appearance… at the initial appearance, albeit a perfunctory meeting in a small room off to the side.

And we can presume that that occurred before the appearance before the magistrate.

After this exchange took place, McNeil was returned to the Milwaukee County jail where he was held continuously until that evening at 7:55 p.m. when Detective Butts of the Milwaukee Sheriff’s Department went to see McNeil for the purposes of interrogating him about the armed robbery, and according to his testimony, possibly the homicide.

Keep in mind that Detective Butts had been involved in a homicide investigation from another jurisdiction, that is, Racine County, because he had informants apparently that led him to believe that McNeil was involved in that Racine homicide.

As a result, Detective Butts was in communication with police authorities from Racine County concerning that homicide.

So when he went to see McNeil that evening at 7:55 p.m. at the Milwaukee County jail, I think they can say to a certainty that he went there to speak to him about the armed robbery and the homicide.

When he arrived, he again read from the standard Milwaukee County Sheriff’s Department text concerning Miranda rights, which is in the appendix.

At this time, McNeil signed a waiver of his rights and said to Butts, I suppose you want to talk about that thing in Caledonia.

And of course, Butts said yes, and they had a conversation about the Caledonia homicide.

Didn’t discuss the armed robbery, and at that time McNeil gave a statement that was totally exculpatory.

Detective Butts testified that he informed McNeil that he wasn’t satisfied with what he had been told and that he would return.

He returned 2 days later on a Sunday in the early evening hours with a representative of the Caledonia Department who had primary jurisdiction of the homicide together with, between three or four City of Milwaukee… not County of Milwaukee… City of Milwaukee detectives from the homicide division with expertise in the area of homicide interrogation.

Did the robbery take place in the City of Milwaukee?

Gary M. Luck:

It took place in a suburb called West Allis, a city adjacent to Milwaukee but part of Milwaukee County, which gave jurisdiction to the Sheriff’s Department.

Ordinarily you’d think that maybe West Allis police would be involved, but because it was in the county the Sheriff was… and that’s how Butts got involved in the homicide.

Apparently in developing his investigation of the armed robbery, he received information concerning the homicide passed out to Caledonia and remained active.

And the homicide had occurred in Caledonia in Racine County?

Gary M. Luck:

That’s correct.

On the 24th, after 5 hours of… approximately 5 hours of meeting in the early to late evening with these various agencies, McNeil made a statement that was heavily inculpatory, partially exculpatory.

Butts was still not satisfied, said he was going to come back again, and he returned 2 days later on a Tuesday again with approximately three or four officers.

Took another statement after approximately an hour and a half which he felt was… sewed up the case, let’s say.

Consequent… or subsequent to that, Racine County issued a homicide warrant on May 27th and Mr. McNeil was transferred from the Milwaukee facility to Racine, where he was subsequently arraigned, and subsequently, after various motions to suppress the statements which I’ve alluded to were denied, he entered pleas to charges of second-degree murder, attempted murder, and armed burglary.

After that, motions were brought to bring to the trial court’s attention the Seventh Circuit case of Espinoza v. Fairman, which I don’t think it’s necessary for me to go into facts, except to say that there’s a tremendous similarity between the two fact situations.


Gary M. Luck:

And at that time, Fairman held that the kinds of statements that had been developed in McNeil should have been suppressed.

The trial court felt that even if that case had been brought to its attention during the pending case, it would have had the… it would have made the same decision that the statements needn’t have been suppressed.

The case was then appealed to the intermediate appeals level in Wisconsin, which certified to the Wisconsin Supreme Court, because they felt there was no applicable Wisconsin law.

The Wisconsin Supreme Court, after full briefing and oral argument, felt that when McNeil appeared at the initial appearance, it was purely a Sixth Amendment right to counsel that he had invoked when he appeared with counsel.

They use the word transmutation, and they say that it is not possible to transmutate the Sixth Amendment into the Fifth Amendment.

And the reasoning was that they felt that there was no interrogation taking place at the initial appearance, and in the absence of interrogation, you cannot invoke your Fifth Amendment right.

Your Honor, we believe that there’s three scenarios that support the rule that we’re proposing.

The first is, if Mr. McNeil, when he was confronted by the Milwaukee sheriffs in Omaha on May 20th, 1987, had, after being advised of his rights, said, I want an attorney, I don’t think we’d be here today.

And I think the State and the United States would agree under the Edwards and the Roberson doctrines.

A second scenario is when the police from Milwaukee approached Mr. McNeil, if he, sui sponte, without being informed by the police of his Miranda rights, had said, I want an attorney, I don’t think we would be here today.

None of those… neither of those scenarios happened, did they?

Gary M. Luck:

Absolutely not, Judge, they did not.

What did happen was an invocation of right to counsel with a variation in time and a variation in place.

The difference is, is that McNeil waited until he was in Milwaukee to have counsel and it took place at an initial appearance.

And we have built our case, Your Honor, around the Edwards-Roberson doctrine as amplified by Michigan v. Jackson.

There is a footnote which appears in our briefs, footnote 7, where in Jackson this Court said that jurists may understand the subtle distinctions between the Fifth and Sixth Amendment, but when an average person invokes his right to counsel, he does not know which constitutional right his invocation rests upon.

All he knows when he invokes his right to counsel, whether it’s in front of a magistrate or a police officer, is that he needs the assistance of counsel to stand between him and his adversaries, be they the prosecutor or the police.

So that’s–

Suppose a suspect, after being advised of his rights says, I want a counsel.

I want an attorney; but I’m pleased to talk with you now.

Gary M. Luck:

–Well, I think that if… if we take Connecticut v. Earrett, which really doesn’t amplify it… restates the rule in Jackson that the request for counsel should be given a broad rather than a narrow interpretation and that it… that if there’s a plain meaning to the defendant’s invocation, we don’t have to move to that type of interpretation.

Therefore, as in Connecticut and Barrett where the person said, I’ll give you an oral statement, but I want a counsel for a written statement, the court said, well, that’s plain on its face.

We don’t have to interpret that.

So if a suspect says, I want an attorney, but I want to talk to you, the plain meaning there would be, I want to talk to you.

But if said, I want an attorney, I think you have to stop right there, because you have to give it its broadest interpretation.

That’s not the scenario in this case, Your Honor.

The scenario in this case is that the defendant appeared in court with his counsel, and I think that his mere appearance–

Well, the principle is that the mere request for or invocation of right to counsel is not in all respects tantamount to an exercise of your Fifth Amendment rights.

Gary M. Luck:

–Well, if I understand the question, Justice Kennedy, it’s where you have this issue of how do you interpret that invocation.

And I guess I’m going back to Connecticut v. Barrett, where the invocation of counsel is plain on its face as to what it is.


Gary M. Luck:

It isn’t necessary to interpret it.

It’s where there’s ambiguity that you have to interpret.

And when you have to interpret, this Court has said you give it a broad interpretation when you’re talking about the request for counsel.

Now, the State of Wisconsin has argued that the plain meaning of an appearance with a defendant at an initial appearance is that it’s the Sixth Amendment.

But Jackson says that that’s not so clear.

That when a defendant appears at an initial appearance, he doesn’t know whether it’s the Fifth or Sixth Amendment.

He wants counsel.

Therefore, the broad interpretation of Jackson, because it’s ambiguous, that’s not like the defendant appearing at the initial appearance and saying, Judge, yes, I want a lawyer just for this charge and only for this charge and I don’t need his help when I’m interrogated by police.

But… but how… how did the lawyer get in the picture here?

Gary M. Luck:

He was a public defender, Your Honor, and what… the procedure in Wisconsin is is that the public defender has an obligation to interview all persons brought into custody before they make an initial appearance to ascertain whether or not they’re indigent.

If a person is indigent and wants them to appear with them, they will appear.

Does it have… does it have to be shown that… that the indigent wants the lawyer to appear with him?

Gary M. Luck:

It doesn’t have to appear on the record, but the public defender will not appear with someone who does not want counsel or says to them, I will get my own counsel.

Then that person will appear at the initial appearance by themselves.

The public defender may say at that time, this individual want… is going to get their own attorney.

We’re not involved in the case.

That’s not on the record, though, Your Honor.

I want to make that clear.

I’m not presenting it as though it’s part of the record.

Mr. Luck, what… what happens under your theory if a… if a defendant requests counsel, he’s given counsel, and then he’s released on bail.

And while he’s out on bail, he commits another crime.

He’s arrested.

He’s brought in.

Waives his Miranda rights and confesses.

Gary M. Luck:

He’s in big trouble.

Why… why is that?

Gary M. Luck:

Because the break in custody–

Wouldn’t U.S. Erie protect him?

Gary M. Luck:

–No, because under Roberson, this Court required… it’s my understanding… continuous custody when–

It’s a break in the custody that’s–