The Keysor Conundrum

The Keysor Conundrum

In 1994, the Kentucky Supreme Court handed down its decision in Linehan v. Commonwealth, 878 S.W.2d 8 (1994). In the case, David Wayne Linehan was arrested and indicted for burglary and the rape of his estranged wife. A public defender was appointed to represent Linehan on the charges.

Five months later, pending trial, Linehan attacked his wife again. He partially-incriminated himself and suggested the second attack was to intimidate the victim into recanting her statement regarding the initial attack. Linehan was indicted, and the public defender’s office was tasked to represent him in the new charges.

During the pretrial process, Linehan demanded information from the second arrest be suppressed at the planned joint trial because he was denied the right to have his appointed counsel at the second interrogation. However, at the time he gave the second statement, he had not formally been charged and had waived Miranda. Although the trial court denied his motion, Linehan made an interlocutory appeal on the issue. (A trial court’s ruling made before the trial has concluded.)

Ultimately, the Kentucky Supreme Court agreed with Linehan, and held that since he had been appointed counsel by the time of the second incident, “he could not be subjected to police-initiated interrogation regarding any evidence incriminating him on the charges for which he had counsel, unless his counsel was present.”

The Kentucky Supreme Court agreed that in separate trials, his responses to the second interrogation would be admissible, but that it could not be used during a joint trial.

The Court concluded, “The police and prosecutorial authorities are at liberty to question a willing subject about new offenses without regard to whether there is prosecution pending on other charges, whether similar or different in nature. But, they must be cognizant that the evidence thus obtained may not be used to incriminate him on pending charges wherein he is represented, unless his counsel is present.”

Precedent Challenged in Louisiana

Linehan remained the law for years. However, in 2009, the U.S. Supreme Court addressed a similar issue in the case of Montejo v. Louisiana, 556 U.S. 778 (2009). In the case, Jesse Montejo was charged in a robbery and murder. Although initially he indicated he’d only driven the suspect to the scene, Montejo ultimately admitted killing the victim during a botched burglary. He was appointed counsel at his initial hearing.

Later that day, he was given Miranda, and agreed to accompany the police to locate the murder weapon. During the trip he wrote an apology to the victim’s widow, in which he incriminated himself. Only upon his return did he first meet with his attorney. The letter was admitted against him at trial, and he was convicted.

Montejo appealed, first in the state courts and then in the federal courts. He argued that under the case of Michigan v. Jackson, 475 U.S. 625 (1986), the letter should have been suppressed. Jackson had held that, “if police initiate interrogation after a defendant’s assertion, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.”

In this case, Montejo never actually asserted his right to counsel, but instead, counsel was appointed by the court without a specific request. The Court agreed there could be no presumption that a defendant with appointed counsel would only waive such rights involuntarily. The prior cases were, “meant to prevent police from badgering defendants into changing their minds about their rights,” and did not necessarily apply, when in fact, the defendant had never decided to have counsel in the first place.

Therefore, the Montejo Court specifically overruled Jackson, finding its original policy was well-served by other means. The Court upheld the Louisiana Supreme Court’s decision.

A Shift in Perception

This shifted the balance on the issue, and resulted in Keysor v. Commonwealth, 486 S.W.3d 273 (2016). Sherman Keysor was charged in Graves County with sexual abuse, and was appointed counsel. In the meantime, Marshall County authorities were investigating the claim that Keysor had sexually abused the same victim in that county as well. Aware of the situation in Graves County, and that Keysor was represented, Marshall County investigators went to Graves County to interrogate Keysor while he was incarcerated.

Keysor was given Miranda on the representation that investigators were only there to discuss what occurred in Marshall County, and he signed a waiver. However, the questioning expanded into the Graves County matter and he took a polygraph. This all occurred without the knowledge of his appointed counsel. Following the polygraph, he made incriminating statements that were then admitted against him in the Graves County case.

Keysor, through his counsel, moved to suppress the statements from being used against him in the Graves County prosecution. Keysor argued that the introduction of such statements violated his rights under Linehan and Jackson.

The trial court initially agreed to the suppression, but with the decision in Montejo, which was handed down just days before, reversed itself and permitted the use. The Court noted that it presumed the Kentucky Supreme Court, given the opportunity, would follow Montejo, based upon prior expressions that Section 11 of the Kentucky Constitution, “provided no greater protections than the Sixth Amendment of the United States Constitution.”

Keysor took an Alford plea, maintaining his innocence, and appealed. The Kentucky Court of Appeals upheld the trial court, also predicting that the Kentucky Supreme Court would adopt Montejo. Keysor further appealed.

The Kentucky Supreme Court began by noting that the case straddled, in effect, a shift in the perception of the Sixth Amendment’s right to counsel. The Court reviewed prior cases, including Jackson, when it ruled in Linehan, and noted the similarities between Linehan and Keysor’s situations.

The Court also noted that, “maintaining and protecting the integrity of the attorney-client relationship is an important public policy of this Commonwealth.” Allowing a wedge to be placed between a defendant and their attorney degrades that relationship. Although the Court agreed in this case, that it was deviating from its expressed rule to follow the U.S. Supreme Court, it noted that was made necessary by the Court’s, “abrupt recalibration of its perception of the Sixth Amendment.”

As such, it had to break the usual tether between the two Constitutions. The Court quoted Escobedo v. Illinois, 378 U.S. 478 (1964), saying, “We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the “confession” will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.”

The Court declared that it now must, “… explicitly hold that if police initiate interrogation after a defendant asserts his right to counsel at an arraignment or similar proceeding, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid as being taken in violation under the defendant’s right to counsel. …”

The Kentucky Supreme Court concluded by affirming the rationale it originally had for Linehan, and holding that once the right to counsel attaches, any subsequent waiver during a “police-initiated custodial interview” is invalid. The Court based its stricter interpretation of the law on the Kentucky Constitution, reversed the decision of the Kentucky Court of Appeals and remanded the case back to Graves County.

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