United States Court of Appeals for the Sixth Circuit Rules that Police Can Trick Defendants Into Incriminating Themselves Even Though They Have Asked for An Attorney

By May 29, 2014 August 1st, 2017 blog post

Mckinney v. Ludwick

The United States District Courts in Michigan are within the Sixth Federal Circuit. In McKinney v. Ludwick, No. 10-1669 (Aug. 19, 2011), the Sixth Circuit Court of Appeals found that the Michigan Court of Appeals had not unreasonably applied Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981), in concluding that although the petitioner had invoked his right to counsel, his initiation of further contact with police rendered his subsequent confession admissible.

The sequence of events was as follows: During his initial questioning, the petitioner told police that he wanted to see a lawyer, thereby ceasing the interrogation. Then, as the interrogating officer was leaving, he told the petitioner that he could face the death penalty if the case was prosecuted federally. The following day, the petitioner reinitiated contact with the police, eventually making incriminating statements.


Legal Document being signedThe Michigan Court of Appeals found that the officer’s statement about the death penalty “did amount to an impermissible interrogation,” but that “the coercive effect of this interrogation had subsided by the time McKinney asked to speak with [the officer] the next morning.” As to the first of these findings, the Sixth Circuit noted that contrary to the finding of the Michigan Court of Appeals, “it is by no means clear that [the] death-penalty comment . . . qualified as the functional equivalent of interrogation, as opposed to a ‘subtle compulsion’ to cooperate that is not foreclosed by Miranda and Edwards.” But even assuming that the death penalty comment was an interrogation, the court found that the Michigan Court of Appeals was reasonable to conclude that “any coercive effect of [the] death-penalty comment had subsided” by the time that the petitioner re-initiated the dialogue with police on the following day.


Essentially, this ruling results in a seriously dangerous precedent. The federal court has taken a position that a defendant who has lawfully and unequivocally invoked his right to remain silent or demanded the representation of a Michigan Criminal Defense Attorney can be taunted, tricked and manipulated by the police and any incriminating statement that is thereafter made is admissible. I hope that an aggressive appellate lawyer will take this case to the United States Supreme Court and will be reversed. Court decisions that encourage police misconduct are especially dangerous to our society.

Mr. Loren Dickstein, Esq.


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