Setting the record straight, part 3

Another issue banging around the blogosphere involves the citation of Knapp by the Wisconsin Court of Appeals in State v. Cleaver. Here's what Daniel Suhr had to say:

In State v. Cleaver, the Wisconsin Court of Appeals suppresses statements given to the police when the suspect was in custody but before she was Mirandized. It further suppressed statements given after she was Mirandized as fruit of an earlier violation.

Here's the response at Illusory Tenant:

So. Now we have Suhr putting forth Cleaver for the general proposition that the physical evidence component of Butler's holding in Knapp is wreaking havoc throughout the land. Only one problem: Cleaver doesn't involve physical evidence, but it does involve the question of intentional withholding of Miranda warnings, and that is the reason it cites to Knapp.

Now, it's not at all clear that Daniel Suhr cited Cleaver for the proposition that "the physical evidence component of Butler's holding in Knapp is wreaking havoc throughout the land." He noted both the physical evidence component of Knapp and that Knapp endorsed a more expansive interpretation of cognate procedural rights under the Wisconsin Consitution, i.e., it endorsed the view that Wisconsin courts ought to step away from their usual (but not exclusive) practice of reading the relevant provisons of the Wisconsin Constitution in lockstep with SCOTUS' reading of cognate provisions in the US Constitution. (Keep this in mind; it will be important later.)

Daniel noted that Cleaver had cited Knapp (for what he does not say) and describes the case, making it quite clear that, as IT points out, "Cleaver doesn't involve physical evidence," So if, as IT says, there's "only one problem," that certainly isn't it.

Daniel's description of Cleaver is accurate as far as it goes. Cleaver involved a case in which a defendant made a statement after he was not warned and then the cops came back, warned him, and took the statement again.

But, as IT notes (turns out he did have more than one problem), the Cleaver court relied on the intentional nature of the failure to Mirandize the defendant the first time around. (I'm not sure, based on the facts recited, that the failure really was intentional, but that's what the trial court found, so we'll stick with it.)

I think that's a more salient distinction here than in Knapp because the Patane court focused on the nontestimonial nature of the evidence to be excluded. Here, as Daniel's description makes clear, this is testimonial. In addition, there was a second SCOTUS decision decided the same day in which a plurality excluded statements made in a similar context. In this case, I think the need to refer to the intentional nature of the violation is more compelling, although I am not about to claim that the failure to do so amounts to intentional "distortion" or calls into question someone's ethical makeup.

Was there any point for Daniel to cite Knapp? I think so. IT says that Cleaver did not follow that component of Knapp that chose to use state, rather than federal, grounds in excluding the evidence:

Not only that, but in one of its own footnotes, the Cleaver court further distinguishes itself from Knapp by pointing out that while Knapp was based upon a Wisconsin constitutional provision, the case under consideration, Cleaver, is based on the Fifth Amendment. Interested and attentive readers will also recall that this was the other conservative objection to Knapp: that by relying on the State constitution and not the Fifth Amendment, the Wisconsin Supreme Court had insulated its holding from federal review.

Ergo, double flat wrong.

I wish that IT had read Cleaver with more interest and attention because this characterization of it is flat wrong.

Cleaver relied on Knapp in excluding the statement:

Because Cleaver’s statements on April 26 were the result of an intentional violation of her Miranda rights, they must be suppressed.7 State v.
Knapp, 2005 WI 127, ¶83, ___ Wis. 2d ___, 700 N.W.2d 899.8

The footnote in which IT thinks that Cleaver distinguished itself from Knapp by saying that Cleaver is based on the Fifth Amendment reads as follows:

The circuit court decided Cleaver’s suppression motion on Fifth Amendment grounds. In Knapp, 700 N.W.2d 899, ¶83, our supreme court decided the suppression issue based on article I, section 8 of the Wisconsin Constitution. We may affirm a correct decision of the circuit court even though that court relied on other grounds. State v. Rognrud, 156 Wis. 2d 783, 789, 457 N.W.2d 573 (Ct. App. 1990). (emphasis supplied)

In other words, it was the trial court that used the 5th. The Court of Appeals used Knapp and Knapp, we know and it knew, uses Article I, section 8. The very point of the footnote was to observe that it was ok for the court of appeals to affirm the trial court on grounds (Art. I, sec. 8) other than those that the trial court used. (the 5th amendment)

I see no need to spike the ball and dance around (at least no more than I already have). Whoever hides behind the nom de guerre, Illusory Tenant, is a very smart lawyer and a good writer and, notwithstanding our almost constant disagreement, I enjoy his (again I get the sense that IT is a man) participation in the debate.

But the error is not entirely unrelated to the issues here. Cleaver is an appellate court decision that probably could have been decided by relying on Missouri v. Siebert, the SCOTUS case decided the same day as Patane. It did not do so because it felt itself to be directly bound by Knapp which uses state constitutional grounds. Cleaver, then, reflects a movement, lead by Knapp, to develop an independent body of law surrounding self incrimination in Wisconsin. If Cleaver were to be decided on that basis by SCOWIS (but it won't be because the court denied review over Justice Roggensack's dissent), there would be no SCOTUS review and we'd never learn if it is really controlled by the plurality decision in Siebert.


There are differences of opinion on this New Federalism which, in the criminal procedure area, will always operate to expand the rights of defendants. Some people argue that it's a good idea, either to skirt an overly conservative SCOTUS or to foster a constitutional dialogue or they defend it on legal realist grounds. Other people think that it is an entirely result driven and meaningless exercise, particularly in light of the fact that most of these state provisions were just copped from the US Bill of Rights and, in 2006, there just isn't much about the various states that is distinct in a way that relates to constitutional interpretation. Particularly in the criminal area, these critics are concerned with uniformity. Still others believe that New Federalism is a legitimate way of proceeding, but only if you can point to something in your state which is unique to it and distinguishes the state provision from the federal provision.

To suggest, as some do, that New Federalism is a well accepted and garden variety thing that ought not be an issue in the campaign ("nothing to see here") does not reflect the way in which lawyers, scholars and judges view the matter. It's an issue. Knapp raises it. So does Cleaver.