“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

In Subdiaz-Osorio v. Humphreys, two Trump judges on the Seventh Circuit—Amy St. Eve and Michael Scudder—comprised the majority in a January divided panel decision upholding Wisconsin’s conviction and imprisonment of a man whose request for a lawyer during police questioning had been ignored.

Nicolas Subdiaz-Osorio was arrested in Arkansas on suspicion of killing his brother in Wisconsin, where they lived. As he was being questioned by the Arkansas police, Subdiaz-Osorio asked if they were going to send him to Wisconsin. The officers told him that since he was an undocumented immigrant, he would have to first have an extradition hearing.

Subdiaz-Osorio asked, “How can I do to get an attorney here because I don’t have enough to afford for one”? (This was the Wisconsin trial court’s live translation of the original Spanish.) Under longtime Supreme Court precedent, police are required to stop interrogating a suspect the moment he asks for a lawyer. Nevertheless, the Arkansas police officials continued to question him, and once he was transferred, Wisconsin prosecutors used what he said against him. The Wisconsin Supreme Court upheld his conviction.

Subdiaz-Osorio filed a habeas corpus petition, asserting that his Fifth Amendment rights had been violated. Writing for the majority, Judge St. Eve (joined by Judge Scudder) disagreed. She held that Subdiaz-Osorio’s question was ambiguous, since he asked how to get a lawyer “here.” The police could reasonably have thought that instead of invoking his constitutional right to an attorney while being questioned for suspicion of murder, he could have instead been asking about acquiring a lawyer just for the extradition hearing that would be held later in Arkansas.

In dissent, Judge David Hamilton sharply criticized the majority. Quoting from Supreme Court precedent, he noted that courts must give “a broad, rather than a narrow” interpretation to requests for counsel. To support the possibility of the much narrower interpretation, St. Eve noted that after the request, the conversation centered on the extradition hearing. But since questioning needs to stop once the request for counsel is made, courts are not allowed to use the subsequent conversation to interpret the request. Judge Hamilton called the majority’s approach “as clear a departure from U.S. Supreme Court precedent as we are likely to see.” He also explained that courts do not ask whether it was ambiguous why a suspect asked for a lawyer, but on whether he asked for one regardless of the reason. In this case, Subdiaz-Osorio was clearly asking for counsel.

Because of Trump judges St. Eve and Scudder, the prosecution was able to use evidence that had been acquired in violation of the Constitution.