Defense win: COA holds that waiver of right to counsel not knowing, intelligent or voluntary
State v. Jasmine C. Daniels, 2025AP74-CR, 3/31/26, District I (not recommended for publication); case activity
In a citable opinion, COA issues a rare defense win, finding the circuit court’s findings of fact clearly erroneous.
Daniels’s child was tragically killed under disputed circumstances. (¶3). Daniels gave shifting stories to police, resulting in her arrest for obstruction. (¶4). During her first custodial interview, Daniels requested an attorney. (¶8). It was three in the morning. (Id.). “She was informed by the detectives that an attorney would not be available until about 9:00 a.m. She then agreed to speak with the detectives.” (Id.). In a third interview, Daniels finally told the police that she had accidentally discharged a gun, resulting in her child’s death. (¶7).
Daniels moved to suppress her statements, arguing that “that she had invoked her right to counsel, and that her statements were coerced and therefore involuntary.” (¶8). Even though the police had told her an attorney was not available when she requested one, she produced evidence at the hearing showing that a public defender is on call 24 hours a day for this purpose. (¶9). Specifically, she filed an affidavit from a Regional Attorney Manager from the Milwaukee Trial Office, which pointed out that this service has been in place since 1978 and that it is utilized several times a month by the Milwaukee Police Department. (¶10). The State argued, however, that its officers were unaware of the availability for an on-call attorney. (¶9). It did not call the officers in question as witnesses, however, and–despite suggesting it would do so–never filed any affidavits, either. (Id.).
Daniels further argued that her statement was coerced because of her mental health, cognitive abilities, and traumatic life experiences. (¶11). She claimed that the detectives used coercive tactics, including calling her a horrible person and telling her she was “no mother.” (Id.).
The circuit court “agreed with the State that the detectives likely did not know about the availability of a public defender.” (¶12). It based that finding on its own lack of awareness of the process for contacting an on-call SPD attorney. (Id.). It concluded the officers were not aware of Daniels’s mental health issues and associated liabilities and found that even though those officers were “a bit rough” this was a result of their being “frustrated” and “pissed off” by Daniels’s lack of cooperation. (¶13).
On appeal, COA holds that it “is undisputed that [Daniels] invoked her right to counsel during the first interview . . . .” (¶15). Moreover, the circuit court’s findings that the officers were unaware of the process for contacting an on-call SPD attorney “are not supported by the evidence in the record.” (¶17). There was no evidence–either testimony or affidavits–to establish the lack of knowledge, only the circuit court’s own purported lack of knowledge. (Id.). These findings are also contradicted by the evidence presented by Daniels, clearly establishing the availability of an attorney via a service frequently used by MPD and which has been in existence for decades. (¶18).
Accordingly, “The record shows that the detectives provided misinformation to Daniels about the availability of an attorney when she invoked her right to counsel.” (¶21). “As a result, her waiver of her right to counsel was not knowing, intelligent, and voluntary.” (Id.).
COA also rejects the State’s argument that the statements from the second and third interviews were voluntary because Daniels reinitiated contact. (¶22). There is “no evidence that in the time between the first and second interviews–approximately thirteen hours, over regular business hours–that any attempt was made to contact the SPD to honor Daniels’ invocation of her right to counsel.” (Id.). COA is “unable to conclude that Daniels had the requisite level of comprehension to render her waiver of counsel voluntary in any of the interviews.” (¶23). Accordingly, COA reverses and indicates that Daniels may now elect to file a motion for plea withdrawal following remand. (¶24 n.3).
This is an interesting defense win for several reasons. First, it deals with an a somewhat localized issue of Milwaukee criminal procedure and involves a rare reversal authored by the former Chief Judge of the Milwaukee County Circuit Court, Judge Maxine White, under an otherwise deferential standard of review. Maybe it’s our own failing memories, but we cannot recall a time in recent history where the defense was actually able to persuade COA that the circuit court’s findings in a suppression context were clearly erroneous, so huzzah to the litigation team at work here. And, even though the decision most obviously impacts Milwaukee cases (as it begs the question to what extent such misinformation is being provided in this circumstance), it is also a citable defense win for litigating waiver issues, a commonly filed motion, so circuit court practitioners across the State will also want to back-pocket this one.
Second, it is also interesting to see how quickly COA dispatches the State’s attempt to argue that this initial defect does not impact the later interviews given what the State frames as voluntary reinitiation. COA seems to suggest that because the request for a lawyer was never honored, then the initial misinformation taints those police interviews, as well. But if she asked to speak with the officers, were they still required to abide by her earlier request for an attorney? As excited as we are for this defense win, we aren’t so so sure that these arguments can be as easily set aside. We therefore anticipate that COA’s domino theory of suppression will be the most obvious angle for the State’s inevitable PFR in a case involving the tragic death of a child.
Third, it is also interesting that this case originated in a no-merit posture before COA apparently independently flagged the issue and ultimately issued this uniquely defense friendly win, showing that someone took an interest in an issue that was otherwise poised to skate through the no-merit review process. (¶14 n.1).
Finally, the concluding footnote is also interesting, inasmuch as it reveals a topic entirely avoided in this opinion–harmless error. While one would certainly expect the State to make such arguments, here, COA seemingly suggests that the proper venue for those arguments will be the circuit court if and when Daniels uses this decision as a basis to withdraw her guilty plea.