A Fine Distinction

Caveness v. Roberts, 2011 WL 3018785 (7/25/11) (Kan.) (unpub'd) - In the context of a habeas ineffective assistance claim for not filing a motion to suppress, the 10th found an officer did not deny the petitioner his right to counsel during custodial interrogation where the detective said: "it would look better in front of the jury if you answer my questions" without an attorney. This declaration was significantly different than saying the jury would use it against him if he asked for counsel. The Constitution only prevents a jury from drawing a negative inference from the defendant's exercise of his Fifth Amendment right. It does not bar a jury from drawing a positive inference from a decision to waive that right. You understand that distinction, don't you?