In A Half-Lit Room,Two White Men Wearing Dark Suits And Ties Sit Gesturing Across A Table From A Handcuffed Man Wearing A Dark Shirt

Aug. 15, 2023  – A suspect who said “So, y’all can get a public pretender now?” during a police interrogation did not unequivocally invoke his Fifth Amendment right to counsel and is not entitled to habeas corpus relief, the U.S. Court of Appeals for the Seventh Circuit has ruled in Jones v. Cromwell, No. 22-2084 (July 28, 2023).

Fatal Hit-and-Run

The Milwaukee County District Attorney filed a criminal complaint naming Johnny L. Jones as the defendant in a fatal hit-and-run that occurred on New Year’s Eve 2009.

Jeff M. Brown
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

Jones turned himself into the police on Jan. 17, 2010. Two police officers questioned Jones the next day, beginning just before 1:30 a.m.

After the lead officer read Jones his Miranda rights, he asked if Jones was willing to answer questions.

Jones asked if the police officer knew the penalty that he was facing.

The police officer didn’t answer. The officer then told Jones that several witnesses placed him at the scene of the hit-and-run.

Jones remained silent.

‘A Public Pretender’

The officer told Jones that he was right to turn himself in and said it was vital that Jones give his side of the story.

Jones asked one of the police officers, “So, y’all can get a public pretender now?”

At this point in the audio recording of the interview, multiple voices can be heard laughing.

“You said it right, ‘pretender,’” the officer says. “They’re called ‘public defenders.’”

More laughter follows, although it’s not possible to tell which of the three people in the room is laughing.

The lead officer then tells Jones, “Obviously, due to the time right now, we can’t.”

Jones again asked about the possible penalty he was facing. The lead officer replied that he thought the maximum punishment was 15 years in prison.

Jones then implicated himself in the hit-and-run.

Appeal on Fifth Amendment Grounds

Jones filed a pre-trial motion to suppress his confession. Jones argued that by mentioning “a public pretender,” he had unequivocally invoked his right to counsel under the Fifth Amendment to the U.S. Constitution.

The trial court denied the motion. Jones then pled guilty to three charges, including homicide by negligent operation of a motor vehicle.

Jones appealed his conviction. But the Wisconsin Court of Appeals held that Jones’s request for a lawyer was unambiguous and affirmed.

Jones appealed but the Wisconsin Supreme Court denied his application for review.

Jones then filed petition for a writ of habeas corpus under 28 U.S.C. section 2254 in the U.S. District Court for the Eastern District of Wisconsin, and that court issued a certificate of appealability.

Request Must Be Unambiguous

Writing for a three-judge panel, Judge Candace Jackson-Akiwumi began her opinion by explaining that under U.S. Supreme Court caselaw, only a suspect’s unambiguous request for a lawyer obligates the police to stop their questioning.

However, Jackson-Akiwumi pointed out, the relevant caselaw does not require a suspect to utter any special words to invoke his or her right to counsel.

She also noted that a court may look at the context of a suspect’s alleged invocation of the right to counsel when that invocation is ambiguous.

Not a Hint of Jest’

Judge Jackson-Akiwumi wrote that the appellate panel was “wary of accepting the state court’s factual findings in this case.”

Jackson-Akiwumi concluded it wasn’t possible from listening to the audio recording to tell who was laughing in response to Jones’ mention of “a public pretender.”

Moreover, she wrote, “Jones’s tone throughout the interview is serious, betraying no hint of jest. In short, we find it difficult to conclude, as the state court did, that Jones was making a joke when he said ‘So, y’all can get a public pretender right now?’”

Judge Jackson-Akiwumi also pointed out that not all jokes are ambiguous.

Doomed by Ambiguity

Nonetheless, Jackson-Akiwumi reasoned, even if Jones’ statement wasn’t made in jest, it didn’t constitute an invocation of his right to counsel because it wasn’t unambiguous.

“A reasonable officer confronted with this question could suppose that Jones was asking whether an attorney could be contacted at that moment rather than asking that an attorney actually be produced,” Judge Jackson-Akiwumi wrote.

“This ambiguity dooms Jones’s argument that his Fifth Amendment rights were violated.”

Import of ‘Can’ and ‘Now’

Jones argued that by including the words “can” and “right now” in his statement, he had expressed a clear desire to meet with an attorney.

Jackson-Akiwumi acknowledged that the Seventh Circuit caselaw was replete with examples of statements including those two words that were found to be sufficiently unambiguous to invoke a suspect’s right to counsel.

She cited the following examples: “I mean, but can I call [a lawyer] now” and “Can I talk to a lawyer?”

However, Judge Jackson-Akiwumi reasoned, Jones injected a note of ambiguity into his statement by beginning it with “So,” which suggested that he was seeking clarification of the Miranda statement which the police office had just read.

“Jones’s question also contains an ambiguity because the verb ‘can’ may be used to both connote an ability or capacity to do something and to request permission,” Jackson-Akiwumi wrote.

“By contrast, if Jones intended to request a lawyer, he might have phrased it with the ‘can’ before the ‘y’all’ (as in ‘Can y’all get a public defender right now?’), more closely aligning with questions we have found unambiguous in the past.”

Habeas Standard Not Met

Jackson-Akiwumi concluded that because Jones failed to show that the Wisconsin Court of Appeals decision was “contrary to, or involved an unreasonable application of U.S. Supreme Court caselaw, the federal Anti-Terrorism and Effective Death Penalty Act did not entitle him to relief on his habeas corpus petition.

“This is a deferential and ‘difficult to meet’ standard,” Judge Jackson-Akiwumi wrote, “and even if one of these two statutory requirements is met, ‘a petitioner … must still … persuade a federal habeas court that “law and justice require” relief,’ as the granting of habeas relief is a discretionary exercise.”