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,
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 questioned about an
offense in one jurisdiction after having twice asserted a right
to counsel incident to an offense in another jurisdiction. No
reported decision was located which resolves this precise
In Michigan v. Mosley, supra, the Supreme Court considered
the propriety of questioning a suspect about one crime after
the suspect had invoked his right to remain silent when he was
questioned earlier about an unrelated crime. Mosley was
arrested in connection with several robberies. After being
advised of his Miranda rights, he exercised his right to cut
off questioning. Two hours later, he was questioned by a
different officer about a homicide unrelated to the robberies,
and he confessed to the homicide. The Court held that a
reinterrogation is not a violation of a suspect's Fifth
Amendment right where the invocation of that right is
"scrupulously honored." 423 U.S. at 104, 96 S.Ct. at 326. The
Court found that to question the defendant about an unrelated
homicide was not inconsistent with Mosley's earlier refusal to
answer any questions about the robberies. 423 U.S. at 102, 96
S.Ct. at 325.
However, unlike the instant action, Michigan v. Mosley did
not entail a review of procedures to be followed after a
defendant invokes his right to counsel. Mosley only claimed the
right to remain silent. Id. at 101 n. 7, 96 S.Ct. at 325 n. 7.
"The invocation of a defendant's right to silence may have a
different impact on the permissibility of subsequent police
conduct than the invocation of his right to counsel." United
States ex rel. Riley v. Franzen, 653 F.2d 1153, 1158 (7th Cir.
The procedures governing the reinterrogation of a suspect
after he invokes his right to counsel were detailed in
Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d
378 (1981). In Edwards, the defendant was taken into custody on
state criminal charges, read his Miranda rights and questioned
by a police officer. During the interrogation, Edwards
requested an attorney. At that point, the questioning ended,
and Edwards was returned to his cell. The next morning, two
different officers came to see Edwards and told him that
detectives wanted to talk to him. Edwards responded that he did
not want to talk to anyone. However, he was informed that "he
had" to talk and was taken to meet with the detectives. Edwards
subsequently confessed to the crime.
In Edwards, the Supreme Court held: when an accused
has invoked his right to have counsel present
during custodial interrogation, a valid waiver of
that right cannot be established by showing only
that he responded to further police-initiated
custodial interrogation even if he has been advised
of his rights. We further hold that an
accused, . . . having expressed his desire to deal
with the police only through counsel, is not
subject to further interrogation by the authorities
until counsel has been made available to him,
unless the accused himself initiates further
communication, exchanges or conversations with the
Id. at 484-85, 101 S.Ct. at 1884-85 (emphasis added).
The Seventh Circuit recently applied Edwards v. Arizona to a
case with similar facts as those in the instant action and
granted a writ of habeas corpus. White v. Finkbeiner,
687 F.2d 885 (7th Cir. 1982) (White III). White was arrested for one
offense and he invoked his right to counsel during
interrogation about that offense. That afternoon and the next
day following his arrest, he was questioned about other
offenses. He finally confessed to those other offenses. On the
second day following his arrest, White was questioned about a
murder, and he confessed to that crime too. Prior to each
interrogation, White was advised of his Miranda rights.
Apparently, each offense occurred in the same jurisdiction.
White appealed his murder conviction, arguing that his
confession was involuntary and was obtained in violation of
his Fifth Amendment privilege against self-incrimination. The
Illinois Supreme Court upheld his conviction, finding that the
defendant's confession was voluntary and thus properly
received into evidence. People v. White, 61 Ill.2d 288, 297,
335 N.E.2d 457 (1975), cert. denied, 424 U.S. 970, 96 S.Ct.
1469, 47 L.Ed.2d 738 (1976). That decision was relied upon by
the Illinois trial and appellate courts to reject Karr's motion
to suppress his confessions in this case.
White then sought a writ of habeas corpus in the District
Court for the Northern District of Illinois. The procedural
history of White's petition for a writ is complex.*fn4 The
writ was denied in White v. Finkbeiner, 611 F.2d 186 (7th Cir.
1979) (White II). The Supreme Court, however, ordered the
Seventh Circuit to reconsider its decision to deny White a writ
in light of Edwards v. Arizona, supra. On reconsideration, the
Seventh Circuit granted the writ of habeas corpus. White v.
Finkbeiner, 687 F.2d 885 (7th Cir. 1982) (White III).
The court found that "[u]nder Edwards, after requesting
counsel during the initial interrogation, White should not have
been subjected two days later to interrogation [for other
crimes] which he did not initiate and before which counsel had
not been made available to him." 687 F.2d at 887-88.
Consequently, when White confessed during the second
interrogation, he had not validly waived his Miranda rights.
Nor did his confession constitute a valid waiver.
The only difference between White and Karr is that White was
questioned by officers of the same police force about
unrelated offenses while Karr was questioned about two
unrelated offenses by officers of different police forces. The
Court finds that the difference is not significant. Karr was
in custody in McHenry County when the Lake County police
sought to question him. He had not initiated the conversations
with the Lake County police. Edwards would make it incumbent on
the Lake County police to determine whether Karr had invoked
his right to counsel and to cut short their interrogation if he
had. In fact, Highland seems to have made some effort in that
regard. He asked Karr if he had spoken with anyone. Karr
replied that he had refused to talk to the McHenry County
State's Attorney. As noted, the record does not indicate
whether Karr also told Highland that he had refused to speak
until he had consulted an attorney. Furthermore, both
confessions, the one to Highland and the one to Tyrrell
regarding the location of the car, were made in the presence of
or directly to officers from McHenry County. Each McHenry
County officer "knew" that Karr had asked for an attorney and
to remain silent subject to that request.
Whether the Highland Park police knew that Karr had invoked
his right to counsel is academic, however. In White III, the
Seventh Circuit held that
it apparently did not matter in Edwards whether or
not the second interrogators knew of the
defendant's previous request for counsel.
Consequently, we believe that it would be
inconsistent with Edwards to find White's
confession admissible because the second
interrogators were not informed of his request for
counsel. To so hold would be tantamount to creating
a `good faith' exception to the Edwards rule, which
restricts interrogation after a suspect's request
for counsel, and might permit relatively easy
circumvention of that rule.
687 F.2d at 887 n. 9. Similarly, this Court believes that
under the circumstances of this case no good faith exception
should be allowed to the Highland Park, Lake County police
because they may not have known that Karr had invoked his
right to counsel in McHenry County.
Because Karr did not initiate the exchange with the Highland
Park police subsequent to his clear assertion and reassertion
of his Fifth Amendment right to counsel, Karr's confessions
are inadmissible. See also United States ex rel. Kimes v.
Greer, 527 F. Supp. 307, 309 (N.D.Ill. 1981) (Bua, J.) ("[t]he
rule set out by the Supreme Court [in Edwards] is subject only
to the limited exception where the questioning following the
first interrogation is initiated by the defendant").
Accordingly, Karr is entitled to summary judgment on the issue
of whether his confessions were improperly admitted. To the
extent that there is any genuine issue of material fact, it has
been resolved in his favor. See, e.g., Kephart v. Institute of
Gas Technology, 630 F.2d 1217 (7th Cir. 1980); United States ex
rel. Kimes v. Greer, supra.
For the reasons stated above,*fn5 the Court issues the writ
of habeas corpus and orders that Karr be discharged from
custody (1) unless the State retries him on the Highland Park
offenses within one hundred twenty (120) days and (2) after
Karr has completed serving his concurrent sentences for his
Kane County and McHenry County convictions. If the state
should elect to appeal this Order, the Court will entertain a
motion to stay issuance of the writ pending appeal.
*fn1 Karr's request in Right's Court for an attorney is
somewhat ambiguous. However, the trial judge ruled that Kaff
had effectively asserted his right to counsel, albeit for a
McHenry County charge. Given that finding, the Court is bound
to accept it. See 28 U.S.C. § 2254(d); Summer v. Mata,
449 U.S. 539, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981); United States ex
rel. Larry Cosey v. Dennis Wolff, 682 F.2d 691 (7th Cir. 1982).
*fn2 Karr also was charged and convicted for similar offenses
in McHenry County and Kane County. However, he pleaded guilty
to lesser offenses in each and the rape charges were dropped.
Karr received two seven to 21 year sentences, each to run
concurrently with the other. In Lake County, Karr was
sentenced to 30-50 years on the instant offense, also to run
concurrent with the Kane and McHenry County sentences. Because
Karr's sentence for the Lake County crimes is longer than his
other two sentences, this Court may consider his petition for
a writ of habeas corpus. A writ will not issue or even be
considered unless to grant the writ will result in a release
from custody. This has been interpreted to mean not just
immediate release from illegal custody but that the granting
of a writ is proper where future confinement or the duration
of a confinement is challenged. See Preiser v. Rodriguez,
411 U.S. 475, 487, 93 S.Ct. 1827, 1835, 36 L.Ed.2d 439 (1972);
McCollum v. Miller, 695 F.2d 1044 (7th Cir. 1982). Karr's
petition, in effect, challenges the duration of his confinement
since, if the petition is successful, his absolute time in
prison would be diminished by at least nine years.
*fn3 On a petition for a writ of habeas corpus to the federal
court, the Seventh Circuit held that the Illinois Supreme
Court had incorrectly ruled that the defendant's confession,
after invocation of his right to counsel, was admissible.
White v. Finkbeiner, 687 F.2d 885 (7th Cir. 1982) (White III),
See discussion infra at 763-764.
*fn4 The Seventh Circuit initially reversed a district court
denial of the petitioner's application for a writ of habeas
corpus and remanded the case for an evidentiary hearing to
determine whether White had actually requested counsel during
his initial interrogation. White v. Finkbeiner, 570 F.2d 194
(7th Cir. 1978) (White I). On remand, the district court
determined that White had not requested counsel, and denied
relief. On appeal from that judgment, the Seventh Circuit found
that White had requested counsel, but that he had validly
waived his right. White v. Finkbeiner, 611 F.2d 186 (7th Cir.
1979) (White II). The Supreme Court ordered the Seventh Circuit
to reconsider its decision in light of Edwards v. Arizona,
supra. Finally, the Seventh Circuit granted White's application
for a writ of habeas corpus. White v. Finkbeiner, 687 F.2d 885
(7th Cir. 1982) (White III).
*fn5 Because the Court finds that there is one ground upon
which to grant the writ, i.e., a violation of Karr's Fifth
Amendment right to counsel, it does not decide whether Karr's
other allegations, i.e., ineffective assistance of counsel,
insufficient evidence to sustain his conviction and denial of
the right to speedy trial, are meritorious.
© 1992-2003 VersusLaw Inc.