A 94-page petition has been filed by Kansas Attorney General Derek Schmidt’s office with the U-S Supreme Court in the Luis Aguirre murder case, involving the 2009 murders of Tanya and Juan Maldonado. The Petition for Writ of Certiorari asks two main questions–Whether a request to temporarily cease questioning is a clear and unequivocal assertion of the right to remain silent under the Fifth Amendment? And whether the use of the equivocal phrase “I guess” along with an explicitly expressed desire to continue talking to police is a clear and unequivocal assertion of the right to remain silent under the Fifth Amendment?
The petition goes on to list reasons for granting the writ, maintaining the matter regarding the request to temporarily cease questioning as a clear and unequivocal assertion of the right to remain silent has divided the lower courts and warrants the U-S Supreme Court’s review. The petition also refers to the “I guess” or substantially similar comments, especially when coupled with an expressed desire to continue talking to police officers, as not a clear and unambiguous invocation of the right to remain silent.
The 94 page document refers several times back to comments made by Aguirre during questioning by Riley County Police, when partway through the interview, Aguirre asked to temporarily cease questioning , saying “This is—I guess where I, I’m going to take my rights . . . .” Aguirre made reference to taking the four-year-old son of his current girlfriend to the child’s grandparents. The child had accompanied him when he voluntarily went to speak with law enforcement authorities. Records indicate Aguirre at the same time assured officers he wanted to return and continue talking.
A sharply divided Kansas Supreme Court this past May held Aguirre had unequivocally invoked his right to remain silent when he said he wanted to return his current girlfriend’s child (David) to the child’s family, and that Aguirre would then come back to help the officers. The majority opinion reversed Aguirre’s capital murder conviction, concluding that all of the statements Aguirre made after he asked to take the four-year-old to his family should have been suppressed. However, three justices dissented, concluding “Aguirre’s statement was not an unambiguous, unequivocal
assertion of his right to remain silent.”
The petition just filed also states “The Kansas Supreme Court appears to be the only court in the country (and American history) to hold that a request for a temporary break in questioning for
a reason unrelated to an unwillingness to talk to police, prefaced with the indecisive words “I guess,” and coupled with an expressly articulated desire to continue questioning soon, is a clear and unequivocal assertion of the right to remain silent.”
It’s not known yet what the U-S Supreme Court will decide to do with the petition or how long that might take.
