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Univ. of South Carolina School of Law

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Saturday, June 13, 2009

I Want A Lawyer...If I Go To Jail: Supreme Court Of Iowa Finds Conditional Request For Counsel Insufficient To Invoke Fifth Amendment Right To Counsel

DETECTIVE: Um, you have the right to a lawyer, talk to a lawyer for advice before I ask any questions and with you before-during questioning if you wish. If you can't afford one, one will be appointed to you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the stop right to stop answering at any time until you talk to a lawyer. And I will give you a copy of this in writing. I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing.

EFFLER: I do want a court-appointed lawyer.

DETECTIVE: Okay.

EFFLER: If I go to jail.

In the following exchange, has Effler, the criminal defendant, invoked his Fith Amendment right to counsel. According to the recent opinion of the Supreme Court of Iowa in State v. Effler, 2009 WL 1491444 (Iowa 2009), the answer is, "No." 
In Effler, 

Melissa Martin was babysitting J .M., a two-year-old girl, for the first time. Martin took J.M. to the Des Moines Central Library. Martin stood at a fifteen-minute internet station, and J.M. stood beside her leg. A few minutes later, Martin noticed J.M. was no longer there and began calling out her name. One of the librarians began a search for the child and remembered seeing Effler handing a toy to a toddler girl. The librarian suggested checking the men's bathroom. Martin and the librarian rushed over to the men's bathroom. The librarian tried to open it with her key, but it was locked from inside. They started pounding on the door calling the child's name. They heard two “bloodcurdling” screams followed by silence. The librarian asked her staff to call the maintenance man, who pried the lock open with a screwdriver. Inside the bathroom, they found a shirtless Effler kneeling next to J.M., who was completely naked. Martin picked up J .M. and ran out. Staff members slammed the door shut, preventing Effler from escaping. Two men held the door shut until the police arrived. The police wrestled Effler to the floor, handcuffed him, and took him to the Des Moines Police Station.

At the police station, a detective interviewed Effler in a small interview room, leading, inter alia, to the aforementioned exchange. After that exchange, Effler waived his Miranda rights, made incriminatory statements, and was convicted of first-degree kidnapping, second-degree sexual abuse, and failure to register as a sex offender after a 2002 conviction for sexual assault in Texas. Effler thereafter appealed, and the Court of Appeals of Iowa reversed, finding that the State violated his Fifth Amendment right to counsel. 

The Supreme Court of Iowa disagreed. That Court noted that, pursuant to Davis v. United States, 512 U.S. 452 (1994), for Effler to have invoked his right to counsel, he must have done so unequivocally and unambiguously. According to the Court, Effler's problem was that 
[t]here are a few different ways to interpret the conditional clause 'if I go to jail.' One possibility is 'I want a lawyer when I go to jail.' Under that interpretation, Effler's statement was conditional and ambiguous. He wanted a lawyer if and when he went to jail. At the time of the interrogation and at the time Effler made that statement, he was not in jail, and no charges had been filed against him. He was seated at a table across from a detective and drinking a can of pop. His statement did not indicate he wanted a lawyer at that moment. As the condition of going to jail had not been fulfilled, the conditional nature of the request rendered it ambiguous.

Another interpretation of Effler's statement is 'I want a lawyer if I am going to jail.' Even under this interpretation, it is arguable whether the condition had been fulfilled. Surely, the detective knew Effler was going to jail. However, it is unclear whether Effler himself knew he was going to jail after the interrogation. Effler thought he was being booked for public intoxication, and the detective told him 'well if they book you for intox, then ... you're not going to get released.' However, the detective also indicated he was not sure whether Effler was going to be booked for public intoxication. It could be argued the condition 'if I'm going to jail' had been satisfied at the time Effler requested counsel, since Effler was indeed going to jail after the conclusion of the interview. However, to establish the condition of Effler's request for an attorney (i.e.jail) had been satisfied requires changing the word 'go' to 'going.' Such a change expands the meaning of Effler's statement.

The very fact that we have to dissect Effler's statement and engage in an in-depth discussion to determine exactly what he meant by 'if I go to jail' indicates his statement was ambiguous, and it is uncertain whether 'a reasonable police officer in the circumstances would understand the statement to be a request for an attorney....' As a couple of different interpretations of Effler's statement 'I do want a court-appointed lawyer...if I go to jail' are possible, it is unclear whether Effler was invoking his right to counsel. A reasonable police officer under these circumstances would have understood only that Effler 'might be invoking the right to counsel....' Officers have no obligation to stop questioning an individual who makes an ambiguous or equivocal request for an attorney....Thus, Effler did not effectively invoke his Fifth Amendment right to counsel, and the detective was permitted to continue questioning Effler.  

I'm not the biggest fan of Davis, but it is the law of the land, and I think that the Iowa Supremes were correct to construe Effler's alleged request for an attorney as too equivocal, ambiguous, and conditional to count as an invocation of the Fifth Amendment right to counsel. 

-CM

http://lawprofessors.typepad.com/evidenceprof/2009/06/detective-um-you-have-the-right-to-a-lawyer-talk-to-a-lawyer-for-advice-before-i-ask-any-questions-and-with-you-before-dur.html

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