Koschnick "unaware" of the law

Last week we learned that the political campaign of Jefferson County Circuit Court Judge Randy Koschnick is playing a little fast and loose with the facts of State v. Knapp, the infamous "bloody shoes case" Koschnick is using to attack Chief Justice Shirley Abrahamson.

Now we discover that Judge Koschnick and his supporters are engaging in a similar enterprise with the law, and attempting to solicit money from its propagation.

A fundraising letter authorized and paid for by Judge Koschnick's campaign and attached with a return-addressed envelope to stuff with cash contributions makes the following claims:

Invoking principles of "new federalism" Abrahamson voted with the majority to require suppression of physical evidence obtained as the result of un-Mirandized statements. Wisconsin is the only state who [sic] affords this protection to criminal defendants.

The latter assertion is presumably made in furtherance of Judge Koschnick's repeated insistence that Chief Justice Abrahamson is not only an "activist" who "legislates from the bench," but is also one who does so in an especially radical and solitary manner.

Only one small problem: The claim is demonstrably false and the four cases following below clearly demonstrate its falsity. One of the four is actually discussed at length in Justice Patrick Crooks's concurring opinion in Knapp, the very decision that Koschnick is criticizing.

The other three were issued by State appeals courts after State v. Knapp appeared in 2005. The most recent is already nine months old.

At last Thursday's candidates forum, the Chief Justice, after reminding him that the fundraising letter uses the present tense, gave Judge Koschnick several opportunities to retract the claim.

"Still think that's a correct statement?" she inquired. "I do," Judge Koschnick replied, "I don't think that those decisions allow for suppression of physical evidence following a Miranda violation."

Well, they do.

While some might believe this to be an insignificant matter, were a lawyer on the record in court to insist for the purposes of her legal argument that Wisconsin is the only State "who" adheres to a particular position on a particular question of law, she could very well be facing professional sanctions.

As an aside, it's interesting to note that an aspiring Republican operative by the name of Daniel Suhr also put forward false claims concerning two of the four cases, Farris and Peterson, which were previously addressed at this blog here and here last winter.

Mr. Suhr was attempting to show the invidious interstate influence of former Justice Louis B. Butler by asserting that the highest courts of Ohio* and Vermont derived inspiration from and followed the Wisconsin Supreme Court's reasoning in State v. Knapp.

This is also demonstrably false, as both courts clearly arrived at their conclusions independently and based those conclusions ultimately on their own State precedent, their own interpretation of federal decisions, and their own State constitutions (that final deference being indicative of the "new federalism" of which Koschnick speaks).

But while Suhr was also completely wrong, his false assertions are independent of Koschnick's more recent ones, as Koschnick is now claiming that Wisconsin is the only (italics Koschnick's) State that suppresses physical evidence where the suspect is not afforded a constitutionally adequate Miranda warning, whether that State actually relied on Knapp or not (which, by the way, none of them did).

Daniel Suhr was graciously forgiven for his partisan zeal and gross errors, as he was at the time yet to take his own attorney's oath before a justice of the Supreme Court (I hope it was Louis Butler).

But at least Suhr was "aware" of the law, much like an aspirant to the Wisconsin Supreme Court should be, especially when it's related to a question that appears to be the centerpiece of his political campaign.

The current incumbent certainly appears to be aware of it.

Unfortunately, Judge Koschnick's errors can be less easily dismissed — for a number of very obvious reasons. Here are the cases, along with some relevant excerpts:

Commonwealth v. Martin, 827 N.E.2d 198 (Mass. 2005)

The question presented in this case is whether the failure to give Miranda warnings to a suspect in custody requires suppression of physical evidence derived from an unwarned statement he made in response to police interrogation. Prior to the recent decision of the United States Supreme Court in United States v. Patane, 542 U.S. 630 (2004), the answer (at least in Massachusetts) would clearly have been "yes." We have consistently held that statements obtained in violation of the principles laid down in Miranda v. Arizona, 384 U.S. 436 (1966), are not admissible in evidence themselves, and may not properly be used to secure additional evidence for use at trial.

Because we conclude that the Supreme Court's construction of the Miranda rule, which was intended to secure the privilege against compelled incrimination in the context of inherently coercive custodial interrogations, is no longer adequate to safeguard the parallel but broader protections afforded Massachusetts citizens by art. 12, we adopt a common-law rule governing the admissibility of physical evidence obtained in these circumstances. Such evidence, if derived from unwarned statements where Miranda warnings would have been required by Federal law in order for them to be admissible, is presumptively excludable from evidence at trial as "fruit" of the improper failure to provide such warnings.

State v. Farris, 849 N.E.2d 985 (Ohio 2006)

To hold that the physical evidence seized as a result of unwarned statements is inadmissible, we would have to hold that Section 10, Article I of the Ohio Constitution provides greater protection to criminal defendants than the Fifth Amendment to the United States Constitution. We so find here.

We believe that the overall administration of justice in Ohio requires a law-enforcement environment in which evidence is gathered in conjunction with Miranda, not in defiance of it. We thus join the other states that have already determined after Patane that their state constitutions’ protections against self-incrimination extend to physical evidence seized as a result of pre-Miranda statements.

Thus, the physical evidence obtained as a result of the unwarned statements made by Farris in this case is inadmissible pursuant to Section 10, Article I of the Ohio Constitution.

State v. Peterson, 923 A.2d 585 (Vt. 2007)

We agree with the analysis and result reached in each of these cases [Farris and Knapp].

For the above reasons, we conclude that we will not follow United States v. Patane under Article 10 of the Vermont Constitution and our exclusionary rule. Physical evidence gained from statements obtained under circumstances that violate Miranda is inadmissible in criminal proceedings as fruit of the poisonous tree. Since it is undisputed that the marijuana plants were such fruit in this case, the district court erred in failing to suppress them.

State v. Vondehn, No. C040956CR (Or. Ct. App. filed April 30, 2008)

For the foregoing reasons, Patane does not undermine our conclusion that police exploitation of conduct that violates rights that Article I, section 12, protects will taint any evidence that the police obtain in the same way that conduct that violates Article I, section 9, does. (fn 15) Accordingly, we conclude that the Hall analysis applies to evidence that the police obtain as the result of exploiting a Miranda violation and that that evidence is inadmissible at trial.

The question in this case, thus, is whether the police obtained defendant's post-Miranda statements by exploiting both his pre-Miranda statements and the evidence that they obtained from the search of the backpack, evidence that was itself the fruit of the previous exploitation of the original illegality. We conclude that they did.

(fn 15) In so concluding, we join the other states that have already determined after Patane that their state constitutions' protections against self-incrimination extend to physical evidence seized as a result of pre-Miranda statements. See, e.g., State v. Peterson, 923 A.2d 585 (Vt. 2007); State v. Farris, 109 Ohio St. 3d 519, 849 N.E.2d 985 (2006), cert. den., Ohio v. Farris, ___ US ___, 127 S. Ct. 1371 (2007); State v. Knapp, 285 Wis. 2d 86, 700 N.W.2d 899 (2005); Commonwealth v. Martin, 444 Mass. 213, 827 N.E.2d 198 (2005).

Wisconsin is the only State? Not exactly.

I can't speak for anybody else, but I would surely expect a qualified candidate for the Wisconsin Supreme Court to apprise himself of the current state of the law before he attempted to deploy it against his opponent for purely political (and fundraising) purposes.

* As an attorney acquaintance of mine who spent many years practicing in the Buckeye State colorfully observed back then:

"The interesting fact to me is that everyone in the majority on the Ohio decision [State v. Farris] — Justices Pfeifer, O'Connor and Lanzinger, along with Chief Justice Moyer — is a lifelong, old-school, law-and-order Republican.

"The notion that some wild-eyed liberal from another state could lead those four people down the garden path toward a real world Grand Theft Auto: San Andreas is preposterous beyond description."