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February 15, 1983


The opinion of the court was delivered by: William T. Hart, District Judge.


Petitioner Gary Paul Karr ("Karr") filed for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, seeking to challenge his February 9, 1976 conviction for rape and aggravated kidnap. Karr, sentenced to 30 to 50 years for those offenses, claims that: (1) his confession was involuntary and was taken in violation of his constitutional right against self-incrimination and to an attorney; (2) his counsel inadequately represented him at trial and on appeal; (3) the evidence was insufficient to sustain his conviction; and (4) he was denied his constitutional right to a speedy trial.

Respondent, Dennis Wolff, Warden of the Joliet Correctional Center, has moved for summary judgment, pursuant to Fed.R. Civ.P. 56. The State concedes that Karr has exhausted his state remedies, as he is required to do before he seeks a writ in federal court. See, e.g., Duckworth v. Serrano, 454 U.S. 1, 102 S.Ct. 18, 70 L.Ed.2d 1 (1981).

As explained more fully below, Karr's petition for habeas corpus relief is granted since he was interrogated outside the presence of an attorney although he had twice asked for legal counsel. Summary judgment is granted in favor of Karr on his claim of unconstitutional confession. Respondent's motion for summary judgment is denied.


Karr was arrested in the afternoon of October 17, 1974, in McHenry County, Illinois, for an offense committed in that county. Early that evening, he was taken to see the McHenry County State's Attorney, but Karr refused to speak to him. Karr stated that he wanted the advice of counsel before saying anything. Karr then was taken to "Rights Court," where a Circuit Court judge advised him of his constitutional rights. Karr reasserted his right to counsel in open court.*fn1 He then was returned to his cell.

Meanwhile, authorities in Lake County, Illinois learned that the McHenry County police were holding Karr, whose alleged modus operandi was similar to that used in an offense under investigation in Lake County. Officers George Highland ("Highland") and Ernest Castelli ("Castelli") of the Highland Park Police Department, Lake County, Illinois, drove to the McHenry County Jail in order to speak to Karr about the Lake County crime. At approximately 10:00 p.m. on the same evening, October 17, 1974, Karr was told by Officer Larry Macheroux ("Macheroux"), of McHenry County, that officers from Highland Park wished to speak with him concerning a Highland Park crime. Macheroux told Karr that it was up to Karr to decide whether he would talk to them. Karr agreed to see them.

At 10:10 p.m. Highland introduced himself and read Karr his Miranda rights. He told Karr that he was investigating a rape and abduction in Highland Park. Karr said that he would waive his rights and speak to the officer. No written waiver of rights was executed. Highland also asked Karr whether he had spoken to anyone else. Karr responded that earlier he had refused to speak to the McHenry County State's Attorney because he had once "been burned" by a state's attorney. The record does not indicate whether Karr also told Highland that he had earlier that day declined to speak until he could consult with an attorney. Apparently, Karr did not renew in Highland's presence his wish to speak to an attorney. Instead, Karr confessed to Highland his part in the rape and abduction in Lake County. Macheroux was present throughout this interview.

The next morning, October 18, 1974, Castelli called the McHenry County Jail and asked Officer Tyrrell ("Tyrrell") to inquire of Karr what had happened to the car used in the commission of the Lake County crime. Tyrrell advised Karr of his Miranda rights and inquired. At a subsequent suppression hearing, Tyrrell testified that Karr then waived his rights and described the car's whereabouts. In fact, the car was found in the location specified by Karr.

Karr was charged in Lake County with rape and abduction.*fn2 He subsequently denied that he had confessed to Highland and Tyrrell. In the alternative, Karr argued that any statements he made must be suppressed since his constitutional rights to an attorney and to remain silent had been violated. Ruling on a motion to suppress the alleged confessions, the Lake County trial court found that Karr had asserted his right to counsel concerning the McHenry County offenses. The court noted that had Karr confessed to crimes in McHenry County subsequent to his assertion of that right, the statements could be suppressed. However, the court ruled that the disputed confessions were not taken in violation of Karr's constitutional right to counsel since the confessions involved a crime in Lake County, for which Karr had not asserted his right to counsel. Judge Foran stated:

  when the Highland Park police went in there, they
  had to give [Karr] his rights, because he had not
  yet waived any rights that he might have had
  under Miranda with respect to the Lake County
  offenses, that they wanted to talk to him
  about. . . . I think the record shows they
  did. . . . I rely on the attitude of the courts
  that it is not improper to question him about other
  crimes, even though he has once asserted his right
  to remain silent and his rights under the 5th
  Amendment, as well as the right to effective
  counsel with other crimes.

The trial court relied for its decision to deny the motion to suppress Karr's confessions on Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), and People v. White, 61 Ill.2d 288, 335 N.E.2d 457 (1975), cert. denied, 424 U.S. 970, 96 S.Ct. 1469, 47 L.Ed.2d 738 (1976).*fn3 The Illinois Appellate Court affirmed, also relying on Mosley and White. People v. Karr, 68 Ill. App.3d 1040, 25 Ill.Dec. 453, 386 N.E.2d 927 (2d Dist. 1979). The Illinois Supreme Court denied Karr's petition for leave to appeal. In light, however, of two subsequent decisions, Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) and White v. Finkbeiner, 687 F.2d 885 (7th Cir. 1982) (White III), neither of which was brought to the Court's attention by the parties, this Court concludes that Karr's confession was obtained in violation of his Fifth Amendment right to counsel.


Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is the starting point for a review of possible violations of Karr's Fifth Amendment right to counsel during his interview with the Highland Park police. In Miranda, the Supreme Court ruled that when a suspect requests an attorney during custodial interrogation, "the interrogation must cease until an attorney is present." 384 U.S. at 474, 86 S.Ct. at 1627. Thus, the Lake County trial court was correct when it said that had Karr been questioned about the McHenry County offense after asserting his right to counsel, any confession would be inadmissible. Karr, however, was questioned about a Lake County crime, unrelated to the one committed in McHenry County. This Court must decide whether Karr's Fifth Amendment right to counsel was violated when he was ...

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