In a January 29
interview with WisPolitics.com, Jefferson County Circuit Judge
Randy Koschnick mounts his
State v. Knapp hobbyhorse once again. On this ride 'round the circuit, his observations are especially remarkable.
Unfortunately, Koschnick's simplistic campaign pronouncements require a considerable amount of background explanation to rectify, so this is necessarily a rather lengthy post.
In a nutshell, Judge Koschnick is given to complain that only verbal statements obtained in violation of the
Miranda warning requirement are to be suppressed at trial, and not physical evidence gathered as a result of those statements (or, in the case of
Knapp, a nonverbal statement expressed by the suspect's pointing at a pile of clothes, which contained a bloodstained sweatshirt).
He suggests that his understanding reflects the current state of the law and that
State v. Knapp is a lawless aberration: "activist" judges "legislating from the bench."
Not only is he mistaken but he contradicts himself, and here's why.
Responding to an astute question about what remedy is available to suspects who ultimately become defendants by dint of law enforcement's intentional violation of their constitutional rights, Koschnick unequivocally announces that such defendants should "Absolutely" be granted the suppression of physical evidence seized under such circumstances.
He goes on to distinguish among what he believes to be different constitutional rules which he supposes to have different effects than others:
JR Ross: The State Supreme Court ruling called it an intentional Miranda violation. [The State v. Knapp decision said] if there is an intentional Miranda violation, there must be some kind of penalty for the police, essentially. Just to play devil's advocate, if the cops intentionally violate somebody's rights, shouldn't there be some kind of consequence for that?
Judge Koschnick: Absolutely!
JRR: And so why is the remedy that [the Knapp court] prescribed, which was not allowing the bloody sweatshirt in [as evidence at trial] not an appropriate remedy?
JK: If the police violate somebody's rights by not giving a search warrant when it's required, or they violate somebody's due process rights, then physical evidence is normally suppressed as well. But the United States Supreme Court has been very clear that failure to read Miranda rights does not rise to the level of full-blown constitutional violation. And if you read the [State v. Knapp] decision carefully, you'll see that that distinction has always been in existence. And it is in existence to this day with the United States Supreme Court.
(Incidentally, JR Ross' excellent question strikes at the fundamental purposes undergirding
Miranda v. Arizona.)
What Koschnick is evidently saying is that the Miranda warning is not, to borrow the actual parlance of the United States Supreme Court, a "constitutional requirement," unlike a search warrant or some particular, individual component of due process.
Therefore, if the Miranda warning was a "constitutional requirement," then surely its deliberate, intentional withholding would require the suppression of physical evidence so obtained, correct? "Absolutely!" says Judge Koschnick.
Intentional and deliberate
First of all, the crucial distinction in
Knapp — which Koschnick conveniently never mentions — is that the Miranda violation was
intentional and deliberate. This fact is undisputed in the record.
A meaningful understanding of
Knapp is simply not possible without bearing that in mind, particularly in light of two of the U.S. Supreme Court cases,
United States v. Patane and
Missouri v. Seibert, which control the Wisconsin Supreme Court's decision in
Knapp.
Secondly, on June 26, 2000, the United States Supreme Court decided in
Dickerson v. United States that the Miranda warning was indeed a constitutional rule, and not just a "prophylactic" protection for the Fifth Amendment guarantee against self-incrimination.
On this question the Court was quite clear:
Dickerson was a 7-2 decision, which is about as clear as you can get during the
Rehnquist era, when 5-4 splits were much more common.
A prophylactic rule is understood separately from a constitutional rule. That is, a prophylactic rule is a rule meant to protect a constitutional rule. In effect, law enforcement may violate a prophylactic rule without violating the constitutional rule.
But in
Dickerson, the Court announced that Miranda
itself is a constitutional rule, not merely a protective, prophylactic rule.
As
noted earlier at this blog, this is what Chief Justice Rehnquist wrote:
The Court of Appeals surveyed Miranda and its progeny to determine the constitutional status of the Miranda decision.
. . . The Court of Appeals concluded that the protections announced in Miranda are not constitutionally required.
We disagree with the Court of Appeals' conclusion . . .
In other words, the Miranda warnings
are constitutionally required. The Miranda rule is a constitutional rule, just the same as is, for example, any other component of what the Fifth Amendment calls due process of law, the intentional violation of which even Judge Koschnick declares "Absolutely" must result in the suppression of physical evidence.
And recall that Koschnick himself, as the presiding judge,
ruled to suppress other physical evidence from Matthew Knapp's homicide trial on different grounds (although he was reversed by the Wisconsin Supreme Court on that ruling as well).
Less than clear. More like opaque.
Since
Dickerson, the U.S. Supreme Court has been far, far less than "very clear." In
Patane, three Justices — including Rehnquist — found that a violation of Miranda was not sufficient to exclude physical evidence. For the three, Justice Thomas wrote:
In this case we must decide whether a failure to give a suspect the warnings prescribed by Miranda v. Arizona requires suppression of the physical fruits of the suspect’s unwarned but voluntary statements. The Court has previously addressed this question but has not reached a definitive conclusion.
But the Court didn't reach a definitive conclusion in
Patane either; only those three Justices did. While two others agreed with the result in
Patane, they only joined the plurality insofar as that result applied to the specific circumstances of the case. They declined to join Justice Thomas's broader discussion, and in so doing declined to join his broader conclusions.
And of course the remaining four Justices dissented altogether, four being a number greater than three (as even most lawyers know).
Furthermore, the facts in
Patane were quite different from those of
Knapp (which makes the cases distinguishable, as we say). Most importantly, the violation in
Patane was neither intentional nor deliberate. The discussion by the plurality in
Patane is limited to "mere failures to warn" and "negligent Miranda violation[s]."
Negligence requires neither intent nor deliberation. Negligence is but a failure to exercise reasonable care and the negligent violation of constitutional rights certainly may
not require such remedies as the suppression of evidence at a criminal trial.
On that question the law most definitely is very clear.
Indeed, one of the two officers present "attempted" to Mirandize Samuel Patane, but Patane interrupted the officer, stating that he already knew his rights, and the Miranda warning was never completed. That's barely even negligence, if at all.
Seibert, on the other hand, did involve a deliberate and intentional withholding of the suspect's Miranda rights, but not the seizure of physical evidence.
Significantly, a majority of the Court in
Seibert affirmed
Dickerson's holding that Miranda is itself a "constitutional requirement," and not simply a prophylactic device meant to protect some other, separable constitutional requirement.
While only four Justices formed the plurality opinion in
Seibert, as is often the case, Justice Kennedy joined that result but wrote separately:
We have held . . . that physical evidence obtained in reliance on statements taken in violation of the rule is admissible, see United States v. Patane.
But recall that Justice Kennedy also wrote separately in
Patane and limited his own conclusion to the specific facts of that case, where the Miranda violation was neither deliberate nor intentional.
Yet Judge Koschnick still believes that the United States Supreme Court's guidance on the question of whether physical evidence obtained further to a deliberate and intentional withholding of the Miranda warning is "very clear"? No, it isn't.
In fact, a majority of the U.S. Supreme Court has never directly decided that question.
The "new federalism"
Which brings us, ultimately, to Judge Koschnick's other criticism of
State v. Knapp: that the Wisconsin Supreme Court, finding at best ambiguous guidance on the federal constitutional question, reverted instead to the Wisconsin constitution's corollary to the Fifth Amendment's Self-Incrimination Clause.
Returning to Chief Justice Rehnquist's opinion in
Dickerson, one finds practically an open invitation for
State courts to do exactly that:
It is beyond dispute that we do not hold a supervisory power over the courts of the several States. . . . With respect to proceedings in state courts, our "authority is limited to enforcing the commands of the United States Constitution."
Moreover, when the United States Supreme Court vacated
State v. Knapp, it did so not on the particular merits of
Knapp, but rather it simply ordered the Wisconsin Supreme Court to revisit
Knapp in light of its decisions in both
Patane and
Seibert and in so revisiting, remain consistent with those two opinions (which even between themselves are
inconsistent:
i.e., not an indicator of clarity).
And that is what a majority of the Wisconsin Supreme Court did.
Indeed, Justice Wilcox's dissenting opinion in
Knapp is devoted almost entirely to admonishing the majority only for departing from the general reasoning employed in some prior State cases. Not a single word of his dissent addresses the distinguishing circumstances of
Knapp — the deliberate and intentional withholding of the Miranda warning — from those previous cases.
Tellingly, however, Justice Wilcox takes pains to distinguish
Knapp from both
Patane and
Seibert, and ironically, for the same reasons discussed above which show that the latter two cases provide insufficiently clear guidance as to the fact pattern in
Knapp.
He also errs in attributing to "the Supreme Court" that "the Miranda rule is a prophylactic employed to protect against violations of the Self-Incrimination Clause."
As we have seen, this was the view of only three of nine Supreme Court Justices, not "the Court," and even then only as it applied to the particular circumstances in
Patane, where there was a so-called "good faith" failure to Mirandize the suspect, as opposed to an intentional and deliberate one.
This should have become obvious to Justice Wilcox when he noticed that one of those three Justices, Rehnquist, was the author of
Dickerson, which announced that Miranda is indeed more than simply a prophylactic rule, but rather a constitutional rule.
Irresponsible journalism
The point of all of this is two-fold. First of all, I believe we should expect from our candidates for the State Supreme Court at least a more thorough understanding of the cases they are using to criticize their opponents on the campaign trail, and that they shouldn't be entitled to a pass when they offer simplistic and misleading formulations of not only those cases but the underlying case law.
Second — and this derives from the foregoing concern — the press bears some considerable responsibility for this situation.
Following the first
candidate's forum in Green Bay last month, headlines across the State shouted, "Koschnick accuses Abrahamson of judicial activism," and "Koschnick says Abrahamson favors criminal defendants" and so on and so forth.
Scarcely a word has been devoted to investigating the merits of Koschnick's "accusations," nor whether or not his characterizations of the law were even accurate.
Well,
they aren't. Whether the press has the interest or the wherewithall or even the baseline competence to investigate more completely into the grounds (such as they are) for Koschnick's superficial
Republican talking points, I can't say.
But it strikes me as both pretty irresponsible and a disservice to voters not to. We went through this last year and any pretense of merit-based selection to the Supreme Court was turned on its head.
Political candidates like Koschnick are well aware of reporters' unwillingness or inability to dissect and discuss complex legal questions and cynically exploit those shortcomings. That should be no way to gain positions on the State's highest court of appeals.
