Jordan v. Israel

567 F. Supp. 1365
CourtDistrict Court, E.D. Wisconsin
DecidedJuly 19, 1983
DocketNo. 82-C-1089
StatusPublished
Cited by1 cases

This text of 567 F. Supp. 1365 (Jordan v. Israel) is published on Counsel Stack Legal Research, covering District Court, E.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jordan v. Israel, 567 F. Supp. 1365 (E.D. Wis. 1983).

Opinion

DECISION and ORDER

MYRON L. GORDON, Senior District Judge.

The petitioner, Kenneth Jordan, was convicted of party to a crime, first degree murder in a Wisconsin state court in 1975. The Wisconsin supreme court affirmed his conviction in 1980. Jordan v. State, 93 Wis.2d 449, 287 N.W.2d 509 (1980). Mr. Jordan petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner asserts that his conviction was obtained in violation of his right to counsel during custodial interrogation under the fourteenth, fifth and sixth amendments. The petition will be denied.

Mr. Jordan was sought by Milwaukee police in connection with the slaying of a policeman during the attempted robbery of a Milwaukee tavern on December 13, 1973. From Chicago, the petitioner phoned a Milwaukee lawyer, Michael Hupy, regarding his surrender and return to Milwaukee; Mr. Hupy advised the petitioner not to speak with the police. On December 20,1973, Mr. [1367]*1367Jordan surrendered to the Chicago police, who advised him of his rights. Mr. Jordan said that he understood his rights and that he did not wish to make a statement; he was not questioned thereafter by the Chicago police.

On December 20, 1973, two Milwaukee detectives, Langford and Brah, arrived in Chicago to return Mr. Jordan to Milwaukee. The’ petitioner was not questioned during the trip back to Milwaukee. Mr. Jordan told the detectives that he wished to speak with Mr. Hupy as soon as they returned to Milwaukee. Shortly after his arrival in Milwaukee, at about 1:30 P.M., the petitioner was permitted to call Mr. Hupy. It is not clear whether he spoke to Mr. Hupy personally or with someone else in the latter’s office. Following the phone call, Mr. Jordan was taken to an interrogation room.

At about 2:20 P.M. on the same day, detectives Langford and Brah entered Mr. Jordan’s cell and advised him of his rights to remain silent, to cut off questioning at any time and to have an attorney present during questioning. Mr. Jordan stated that he had already been advised of his rights in Chicago and that he understood them. The detectives informed Mr. Jordan of the charges against him, and he denied any involvement. The detectives then read a statement by another suspect which incriminated Mr. Jordan. Mr. Jordan then said that he would tell the true story and proceeded to make a statement in narrative form. When the petitioner was finished, he immediately began to recite his story a second time so that it could be written down. The police report states that the transcription was completed at about 3:00 P.M., approximately forty minutes after the detectives had entered Mr. Jordan’s cell.

At some time during Mr. Jordan’s interrogation, Mr. Hupy arrived at the police administration building. He waited in the lobby for about ten minutes. When detective Langford was informed of Mr. Hupy’s presence, he immediately left Mr. Jordan’s cell and went to meet Mr. Hupy. At this point, Mr. Jordan had already told his story once and was in the process of reciting it a second time for transcription. Mr. Hupy told detective Langford that he wanted to see his clients, Mr. Jordan and another suspect. Detective Langford first took Mr. Hupy to see the other client, with whom Mr. Hupy spoke for about five minutes. Mr. Hupy was then taken to see Mr. Jordan. When Mr. Hupy arrived at Mr. Jordan’s cell, Mr. Jordan was just finishing dictating his statement for transcription.

The petitioner argues that his statement was improperly admitted at his trial because it was elicited in the absence of counsel in violation of his fourteenth, fifth and sixth amendment right to have his counsel present during a custodial interrogation. He claims that his consistent reliance on the advice of counsel refutes the state’s allegation that he waived his right. He also claims that a finding of waiver would be improper because the police deliberately prevented his attorney from consulting with him.

Under the fifth amendment, a criminal suspect is entitled to have counsel present during any custodial interrogation in order to safeguard his fifth amendment right not to incriminate himself. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The sixth amendment secures for a criminal suspect the right to the assistance of counsel after judicial proceedings have been initiated. Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1976). Both the petitioner and the respondent agree that the petitioner’s right to counsel had attached at the time of his interrogation in Milwaukee. They differ only with regard to whether the petitioner waived his fifth and sixth amendment right to have counsel present during the interrogation.

Before treating the issues raised by the parties, I will analyze sua sponte the legality of the Milwaukee detectives’ interrogation of the petitioner when they knew that [1368]*1368he had earlier, in Chicago, invoked his fifth amendment right to remain silent. The Miranda decision established the general rule that once a suspect indicates that he wishes to remain silent, “the interrogation must cease.” Miranda, 384 U.S. at 474, 86 S.Ct. at 1628. In Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), the Court held that this rule did not provide a suspect with permanent immunity from further questioning once the right to remain silent had been invoked. Rather, the validity of a subsequent interrogation depends upon whether police have “scrupulously honored” the suspect’s right to cut off questioning. Mosley, at 104, 96 S.Ct. at 326-327.

The controlling interpretation of the Mosley rule in the seventh circuit is that police may resume questioning a suspect who has invoked his right to remain silent “after a reasonable length of time if new warnings are given and if the facts show that they are not making repeated efforts to wear down the suspect’s resistance.” Kennedy v. Fairman, 618 F.2d 1242, 1248, n. 6 (7th Cir.1980). I find that the Milwaukee detectives’ interrogation of the petitioner meets all three requirements.

When the petitioner was advised of his rights and interrogated in Chicago, he invoked his right to remain silent and was not further questioned. Approximately twenty hours passed before the petitioner was again advised of his rights and interrogated a second time by different officers in a different city. This was a reasonable length of time, long enough to give the petitioner an opportunity to change his mind about talking to police if he wished without there having been any pressure on him to do so. It is clear that the two interrogations, twenty hours apart, did not constitute “repeated efforts to wear down the [petitioner’s] resistance.” The interrogation in Milwaukee easily passes the test of Kennedy and, therefore, did not violate the petitioner’s fifth amendment right to remain silent.

We now turn to the question whether the petitioner waived his constitutional right to have counsel present during interrogation.

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Related

Jordon (Kenneth) v. Israel (Thomas R.)
746 F.2d 1483 (Seventh Circuit, 1984)

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567 F. Supp. 1365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-v-israel-wied-1983.