662 F.3d 897 Briefs and Other Related Documents Judges and Attorneys United States Court of Appeals, Seventh Circuit. Rick ALEMAN, Plaintiff–Appellant, v. VILLAGE OF HANOVER PARK, et al., Defendants– Appellees. No. 10–3523. Argued Sept. 26, 2011. Decided Nov. 21, 2011. Background: Arrestee brought civil rights action under federal and state law against village and police officers for village and state police departments arising from his arrest for aggravated battery and, subsequently, for first degree murder of 11-month-old child for whom he had recently begun providing day care services. The United States District Court for the Northern District of Illinois, Elaine E. Bucklo, J., 748 F.Supp.2d 869, granted summary judgment in part for defendants. Plaintiff appealed. Holdings: The Court of Appeals, Posner, Circuit Judge, held that: (1) arrest had been supported by probable cause that arrestee had committed aggravated battery of child; (2) police officer clearly did not have probable cause to arrest for first-degree murder; (3) interrogation of arrestee violated Miranda; (4) violation of Miranda was actionable in civil rights suit; (5) arrestee's confession that had been induced by false statement was worthless as evidence, and as premise for arrest for first-degree murder; (6) provider's claim of malicious prosecution under Illinois law was not viable; and (7) factual issue existed as to whether officer had made arrest on first degree murder charge with malice. Affirmed in part, reversed in part, and remanded. West Headnotes [1] KeyCite Citing References for this Headnote 35 Arrest 35II On Criminal Charges 35k63 Officers and Assistants, Arrest Without Warrant 35k63.4 Probable or Reasonable Cause 35k63.4(7) Information from Others 35k63.4(7.1) k. In general. Most Cited Cases 35 Arrest KeyCite Citing References for this Headnote 35II On Criminal Charges 35k63 Officers and Assistants, Arrest Without Warrant 35k63.4 Probable or Reasonable Cause 35k63.4(15) k. Appearance, acts, and statements of persons arrested. Most Cited Cases Arrest of day care provider of child who had been diagnosed with hematoma and believed to be victim of shaken-baby syndrome had been supported by probable cause that he had committed aggravated battery of child, since provider had been last person to have had custody of child and he had admitted to having shaken him, doctors had told police officers that injury had been freshly caused, which police interpreted to mean “today,” and provider had been heard to say immediately after child had been taken away in ambulance that he did not want to go to jail for rest of his life and did not want to be unable to see his children. U.S.C.A. Const.Amend. 4. [2] KeyCite Citing References for this Headnote 35 Arrest 35II On Criminal Charges 35k63 Officers and Assistants, Arrest Without Warrant 35k63.4 Probable or Reasonable Cause 35k63.4(15) k. Appearance, acts, and statements of persons arrested. Most Cited Cases Police officer clearly did not have probable cause to arrest day care provider for first-degree murder of child who had been diagnosed with hematoma and was believed to be victim of shaken-baby syndrome; although provider had been last person to have had custody of child and he had admitted to having shaken him, child, who had been with provider for only two days, showed signs of syndrome during those two days and before gentle shaking by provider that was consistent with CPR instructions, child's mother had been violent with child and other persons, and officer had lied to pathologist, obstructed investigator's efforts to investigate mother, and used improper tactics at provider's interrogation. U.S.C.A. Const.Amend. 4. [3] KeyCite Citing References for this Headnote 110 Criminal Law 110XVII Evidence 110XVII(M) Statements, Confessions, and Admissions by or on Behalf of Accused 110XVII(M)16 Invocation or Rights 110k411.82 Effect of Invocation 110k411.85 k. Counsel. Most Cited Cases Interrogation of arrestee violated Miranda, where arrestee had indicated desire for assistance of counsel twice and he agreed to be questioned only after responding to further police-initiated custodial interrogation; arrestee said first that “I gotta call my guy” (his lawyer), and, after speaking to him, reported that lawyer had told him to not speak to police, yet officer, exploiting his distraught state, continued to badger him to sign Miranda waiver, and arrestee invoked his right to counsel second time when he asked to call his lawyer again. U.S.C.A. Const.Amends. 4, 5. [4] KeyCite Citing References for this Headnote 110 Criminal Law 110XVII Evidence 110XVII(M) Statements, Confessions, and Admissions by or on Behalf of Accused 110XVII(M)17 Waiver of Rights 110k411.94 k. Counsel. Most Cited Cases When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. U.S.C.A. Const.Amend. 5. [5] KeyCite Citing References for this Headnote 110 Criminal Law 110XVII Evidence 110XVII(M) Statements, Confessions, and Admissions by or on Behalf of Accused 110XVII(M)16 Invocation or Rights 110k411.82 Effect of Invocation 110k411.85 k. Counsel. Most Cited Cases 110 Criminal Law KeyCite Citing References for this Headnote 110XVII Evidence 110XVII(M) Statements, Confessions, and Admissions by or on Behalf of Accused 110XVII(M)16 Invocation or Rights 110k411.82 Effect of Invocation 110k411.86 Reinitiating Interrogation 110k411.86(6) k. Initiation by defendant. Most Cited Cases An accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. U.S.C.A. Const.Amend. 5. [6] KeyCite Citing References for this Headnote 110 Criminal Law 110XVII Evidence 110XVII(M) Statements, Confessions, and Admissions by or on Behalf of Accused 110XVII(M)16 Invocation or Rights 110k411.82 Effect of Invocation 110k411.85 k. Counsel. Most Cited Cases 110 Criminal Law KeyCite Citing References for this Headnote 110XVII Evidence 110XVII(M) Statements, Confessions, and Admissions by or on Behalf of Accused 110XVII(M)16 Invocation or Rights 110k411.82 Effect of Invocation 110k411.86 Reinitiating Interrogation 110k411.86(6) k. Initiation by defendant. Most Cited Cases When a suspect invokes his right to counsel, the police may not recommence questioning unless the suspect's lawyer is present or the suspect initiates the conversation himself. U.S.C.A. Const.Amend. 5. [7] KeyCite Citing References for this Headnote 110 Criminal Law 110XVII Evidence 110XVII(M) Statements, Confessions, and Admissions by or on Behalf of Accused 110XVII(M)16 Invocation or Rights 110k411.79 Counsel 110k411.80 k. In general. Most Cited Cases Under Miranda, invocation of the right to counsel just requires a statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney. U.S.C.A. Const.Amend. 5. [8] KeyCite Citing References for this Headnote 110 Criminal Law 110XVII Evidence 110XVII(M) Statements, Confessions, and Admissions by or on Behalf of Accused 110XVII(M)10 Warnings 110k411.2 k. Purpose. Most Cited Cases The Miranda rule is intended to backstop the right conferred by the Fifth Amendment not to be compelled to incriminate oneself, by excluding from the defendant's trial the confession that the violation enabled the police to elicit when upon arresting they questioned him. U.S.C.A. Const.Amend. 5. [9] KeyCite Citing References for this Headnote 78 Civil Rights 78I Rights Protected and Discrimination Prohibited in General 78k1088 Police, Investigative, or Law Enforcement Activities 78k1088(4) k. Arrest and detention. Most Cited Cases Arrestee's statement to police officers who questioned him in violation of Miranda had been used against him in criminal proceeding, in that it had been indispensable ground of his indictment for murder, and thus violation of Miranda was actionable in civil rights suit, although arrestee was never tried. U.S.C.A. Const.Amends. 4, 5; 42 U.S.C.A. § 1983. [10] KeyCite Citing References for this Headnote 110 Criminal Law 110XVII Evidence 110XVII(M) Statements, Confessions, and Admissions by or on Behalf of Accused 110XVII(M)14 Conduct of Interrogation 110k411.59 Deception 110k411.61 k. Representations as to physical evidence. Most Cited Cases Arrestee's confession that had been induced by false statement was worthless as evidence, and as premise for arrest for first-degree murder of child who had been diagnosed with hematoma and was believed to be victim of shaken-baby syndrome, since false statement had destroyed information required for rational choice; arrestee, who had gently shaken baby according to training prior to administering CPR, had been told by police officers that doctors had excluded any other possible cause of child's death, and therefore it was logical for him to say that he had been responsible for child's death. U.S.C.A. Const.Amend. 4. [11] KeyCite Citing References for this Headnote 157 Evidence 157IV Admissibility in General 157IV(E) Competency 157k154 k. Evidence wrongfully obtained. Most Cited Cases A coerced confession is inadmissible, even if amply and convincingly corroborated. [12] KeyCite Citing References for this Headnote 157 Evidence 157IV Admissibility in General 157IV(E) Competency 157k154 k. Evidence wrongfully obtained. Most Cited Cases A trick that is as likely to induce a false as a true confession renders a confession inadmissible because of its unreliability even if its voluntariness is conceded. [13] KeyCite Citing References for this Headnote 249 Malicious Prosecution 249II Want of Probable Cause 249k17 Criminal Prosecutions 249k18 Grounds in General 249k18(2) k. Acts and conduct of accused evidence of probable cause in general. Most Cited Cases 249 Malicious Prosecution KeyCite Citing References for this Headnote 249II Want of Probable Cause 249k17 Criminal Prosecutions 249k18 Grounds in General 249k18(5) k. Personal knowledge and statements of others. Most Cited Cases Probable cause existed for arrest of day care provider on charge of aggravated battery of child, and thus provider's claim of malicious prosecution under Illinois law was not viable as to that charge, where provider had been last person to have had custody of child and he had admitted to having shaken him and doctors had told police officers that injury had been freshly caused, which police had interpreted to mean “today”; although subsequent events had demolished probable cause, charge of battery already had been submitted. U.S.C.A. Const.Amend. 4. [14] KeyCite Citing References for this Headnote 249 Malicious Prosecution 249III Malice 249k26 k. Necessity. Most Cited Cases 249 Malicious Prosecution KeyCite Citing References for this Headnote 249III Malice 249k30 k. Motive of prosecution. Most Cited Cases Illinois law requires, to show malicious prosecution, proof not only of lack of probable cause but also of “malice,” which means in this context that the officer who initiated the prosecution had any motive other than that of bringing a guilty party to justice. [15] KeyCite Citing References for this Headnote 249 Malicious Prosecution 249III Malice 249k32 k. Inference from want of probable cause. Most Cited Cases On a malicious prosecution claim under Illinois law, an inference of malice may be drawn from an absence of probable cause. [16] KeyCite Citing References for this Headnote 170A Federal Civil Procedure 170AXVII Judgment 170AXVII(C) Summary Judgment 170AXVII(C)2 Particular Cases 170Ak2515 k. Tort cases in general. Most Cited Cases Genuine issue of material fact existed as to whether police officer who had initiated prosecution of day care provider for first degree murder had any motive other than that of bringing guilty party to justice, precluding summary judgment on provider's malicious prosecution claim. *900 Lawrence V. Jackowiak (argued), Adele D. Nicholas, Attorneys, Law Offices of Lawrence V. Jackowiak, Chicago, IL, for Plaintiff–Appellant. Michael R. Hartigan (argued), Attorney, Hartigan & O'Connor, P.C., Jane E. Notz (argued), Attorney, Office of the Attorney General, Chicago, IL, for Defendants–Appellees. Before CUDAHY, POSNER, and WOOD, Circuit Judges. POSNER, Circuit Judge. The plaintiff in this suit under 42 U.S.C. § 1983 appeals from the grant of summary judgment in favor of the defendants—two Illinois state police officers (Gerard Fallon and Joseph Micci), three police officers of the Village of Hanover Park, Illinois (Todd Carlson, Carol Lussky, and Eric Villanueva), and the Village itself. The suit, which seeks damages, charges the individual defendants with having twice falsely arrested the plaintiff, Rick Aleman, in violation of the Fourth Amendment's prohibition of unreasonable seizures, and having questioned him in violation of the Miranda rule, eliciting spurious evidence that led to his second arrest and an indictment for murder. There are also supplemental claims under Illinois law, but only one—malicious prosecution—remains in the case; the district judge dismissed the others as barred by the applicable statute of limitations, and Aleman doesn't challenge those dismissals. We also won't have to discuss the Village's liability. The Village was not implicated in the alleged misbehavior of its officers and cannot in a section 1983 suit be held liable just by virtue of having been the officers' employer. Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). So without further ado we affirm the district court's grant of summary judgment in its favor. We shall state the facts as favorably to the plaintiff as the record permits, as we are required to do when deciding an appeal from a grant of summary judgment in favor of the defendants. We don't vouch for the truth of the facts that the plaintiff alleges, though there doesn't seem to be much doubt that his main factual allegations are true. Aleman provided day care in his home. His day-care service was only five months old when the events out of which this case arises took place. But there is no contention that he lacked the requisite competence. He had five children of his own, *901 ranging in age from 3 to 15; and several of the younger ones were in his day care along with three other children, one of whom was an 11–month–old named Joshua Schrik. We'll see that Aleman knew how to perform CPR on infants. On the morning of September 9, 2005, Joshua's mother, Danielle Schrik, dropped off Joshua at Aleman's home for his third day of day care. During the first two days Joshua had been lethargic and feverish. On September 9 he was much worse. Shortly after arriving he began gasping for air, then collapsed; the alarmed Aleman picked him up and, because the infant was showing no signs of life, shook him gently in an effort to elicit a response. There was none. After performing CPR with no effect except to bring fluids out of Joshua's nose and mouth, Aleman called 911. An ambulance arrived and took the child to a hospital. Police officers arrived at Aleman's home about when the ambulance did and questioned him. One of them, Officer Lussky (a defendant), asked him and his wife to come down to the police station. They did so. Aleman was placed in an interrogation room. Forty-five minutes later, no interrogation having taken place, he asked Lussky whether he could leave and come back in an hour. She said no; he was under arrest—and the arrest activated his Miranda rights. Oregon v. Mathiason, 429 U.S. 492, 494–95, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam). More than five hours later, Officers Micci and Villanueva (two other defendants) entered the interrogation room in which Aleman was being detained and Micci told him he'd talked to several people about what had happened to Joshua and that Aleman had “the most information.” Aleman said he wanted to call his lawyer. Micci responded by beginning to fill out a waiver of Miranda rights for Aleman to sign, and minutes later said to him “before I talk to you I would like this [the waiver] signed” but that Aleman could call his lawyer first. Aleman called and during the phone conversation Villanueva picked up the phone and spoke to the lawyer, who told him that Aleman was invoking his right to remain silent. That did not count as an invocation of Aleman's Miranda rights, however; the Supreme Court has held that they can be invoked only by the person being questioned. Moran v. Burbine, 475 U.S. 412, 433 n. 4, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). After the phone call ended, Micci asked Aleman, “How we doing?” and Aleman replied, “Not good. I called him and he told me not to do this right now.” Aleman added that he was tired and wanted to go home, but Micci responded: “If I don't get to talk to you, you're not going home.” He also told him that if he talked to the two officers he could “help [him]self out” and “clear this up.” Aleman asked whether he could speak to his lawyer again and the officers said he could. In this call Aleman told the lawyer “I wish you were here” and “I need your help.... I can't help myself in here.” Aleman was permitted to make additional calls, and reached his mother and a friend after failing to reach his wife, but eventually the officers said: “Hang up the phone, Rick, and have a seat. And I ask that you don't use the phone until we decide what we're gonna do.” Aleman responded: “I talked to my lawyer, you know, and I tried to talk him into doing it, and he told me to go ahead.... I really don't have a problem doing it.” (If that's indeed what the lawyer said—his end of the conversation was not recorded—he violated Justice Jackson's dictum that “any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.” *902 Watts v. Indiana, 338 U.S. 49, 59, 69 S.Ct. 1357, 93 L.Ed. 1801 (1949) (separate opinion).) Micci followed up by again asking Aleman to sign the waiver. He did so and the officers then questioned him for four hours. During the interrogation Micci repeatedly told Aleman that he'd talked to three doctors and all had told him that Joshua had been shaken in such a way that he would have become unresponsive (unconscious) immediately, meaning that Aleman's shaking must have caused Joshua's injury, since Joshua was sluggish but conscious when he arrived at Aleman's home that morning. This account of what the doctors had said was a lie, but it elicited from Aleman the statement that “I know in my heart that if the only way to cause [the injuries] is to shake that baby, then, when I shook that baby, I hurt that baby.... I admit it. I did shake the baby too hard.” Yet intermittently throughout the protracted interrogation he continued to deny, and express disbelief, that he could have caused the injury. Partly on the basis of his supposed “confession,” Aleman was charged with aggravated battery of a child. Officer Carlson (another defendant, of whom more shortly) prepared the charge, Villanueva signed the criminal complaint, and at the subsequent bond hearing the prosecutors, repeating what the officers had told them, told the judge that Aleman had confessed to violently shaking Joshua and causing his injuries. Joshua died on September 13. The charge against Aleman was upped to first-degree murder and he was rearrested on September 15 and later indicted. He made bail, as he had done after his original arrest. Oddly, we've been unable to determine with certainty how long he spent in jail. At his deposition he said a month; at oral argument his lawyer said eight or nine days. But the length of time that Aleman was in jail, while relevant to the amount of damages that he might be able to obtain if he wins this case, is irrelevant to this appeal. The case against him quickly disintegrated. A prosecutor viewing the videotape of the interrogation by Micci and Villanueva decided that it was “more exculpatory than inculpatory,” and that it also raised issues under Miranda. The doctors who had examined Joshua, and diagnosed him with subdural hematoma (bleeding in the brain, usually the result of a head injury), eventually decided that the infant's sluggish and feverish condition for several days before September 9 could have been caused by a violent shaking or by a blow to the head, and that Joshua's collapse on September 9 could have been the delayed effect of this earlier trauma rather than of anything Aleman had done—in fact Aleman's mild shaking of Joshua was the proper initiation of CPR. See U.S. National Library of Medicine, Medline Plus, “CPR-infant,” www. nlm. nih. gov/ medlineplus/ ency/ article/ 000011. htm (visited November 16, 2011), summarizing M.F. Hazinski, R. Samson & S. Schexnayder, “2010 Handbook of Emergency Cardiovascular Care for Healthcare Providers” (American Heart Association 2010). This explanation was accepted by an experienced investigator employed by the Illinois Department of Children and Family Services, Michael Booker, who had discovered that Joshua's mother was a violent person with a criminal record. She was known to have beaten and violently shaken Joshua and had been heard to make threats to kill him. Although the medical profession once thought that there is no interim between trauma and collapse in shaken-baby syndrome, the medical profession now believes (and apparently believed in 2005—Booker certainly believed *903 this) that there can be an interim in which the child would be conscious, but probably lethargic or fussy or feverish or have difficulty sleeping or eating. See Emily Bazelon, “Shaken–Baby Syndrome Faces New Questions in Court,” New York Times Magazine, Feb. 6, 2011, p. MM30; State v. Edmunds, 308 Wis.2d 374, 746 N.W.2d 590, 596 (Wis.App.2008); Kristy B. Arbogast, Susan S. Margulies & Cindy W. Christian, “Initial Neurologic Presentation in Young Children Sustaining Inflicted and Unintentional Fatal Head Injuries,” 116 Pediatrics 180 (2005). Thus one of the doctors who treated Joshua after his collapse explained that when he told the police that Joshua would not have been alert and functioning after the injury, he meant that Joshua would not have been behaving like a normal 11–month–old, not that he would have been unconscious. Aleman was never tried. On November 13, 2006—more than a year after his arrests and Joshua's death—the charges against him were dismissed. Danielle Schrik, the mother, was never charged. Carlson, who played the central role in screwing up the investigation (quite possibly deliberately, as we're about to see), had been dispatched to the hospital immediately after Joshua was taken there on September 9, to interview Joshua's family and the doctors who were caring for him. He asked Danielle whether she had ever struck Joshua and she said no, although she acknowledged that he'd had a fever in the days leading up to his collapse. This should have been a warning that his collapse on September 9 might have been caused by a blow or a shaking several days earlier that had first manifested itself in his fever and lethargy, as Booker recognized when he learned of the fever. Nevertheless Carlson decided he would investigate Danielle Schrik no further. From his subsequent conduct in attempting to protect her from questioning by Booker and in holding her hand and sobbing with her at Joshua's funeral, a reasonable jury might infer that he was sexually attracted to her and for that reason wanted to keep the investigation focused on Aleman. When Booker, the expert on child abuse, learned of Carlson's decision to terminate the investigation of Danielle, he was disturbed and on September 13, the day of Joshua's death, interviewed Danielle in Carlson's presence. She acknowledged some of her criminal background, which included crimes of violence, but not all of it. According to statements by her mother and her boyfriend, Danielle had broken her mother's jaw and threatened to kill her and Joshua; she had had physical fights with Joshua's father and been arrested and charged with committing a battery during one of those fights; and her mother had seen her shake Joshua frequently and the mother's boyfriend had had to protect the child from Danielle. Carlson told Danielle not to speak to Booker or any other investigator, and when Booker repeatedly tried to call her after the initial interview there was never a response. At Joshua's autopsy on September 14, which both Booker and Carlson attended, the pathologist opined, according to Booker's notes, that it was “highly unlikely” that Joshua's injuries had been caused by Aleman, since the symptoms Joshua had displayed in the days before his collapse were consistent with his already having a subdural hematoma. But later that day Carlson returned to the pathologist's office alone and told her that Joshua had been “behaving normally” when he arrived at Aleman's house on the ninth and indeed was “up and running around.” These lies caused her to change her opinion and she told the prosecutor that the injury to Joshua's head had occurred while he was in *904 Aleman's care. On the basis of this misinformation the prosecutor approved charging Aleman with murder, and Carlson signed the criminal complaint and arrested him. After eventually learning the truth, the pathologist reinstated her original opinion of the cause of Joshua's hematoma and subsequent death. [1] The district judge was correct to rule that the arrest of Aleman on the morning of September 9 when he was told he couldn't leave the police station was supported by probable cause. It was natural for the police to suspect him, as he was the last person to have had custody of Joshua and admitted having shaken him. By the time he was arrested the hospital had informed the police that they'd diagnosed Joshua's hematoma and believed him to be a victim of shaken-baby syndrome. Police interviewed the doctors, who told them, misleadingly (as they all later admitted), that the injury had been freshly caused—the doctor who used the term “fresh” later explained that “fresh” meant “within about a week,” but the police quite naturally interpreted it to mean “today.” And immediately after Joshua was taken away in the ambulance, Aleman had been heard to say “at least twice that he did not want to go to jail for the rest of his life and did not want to be unable to see his children.” The fact that Carlson's interview of Joshua's mother had been perfunctory and that he may already have been trying to protect her for reasons of “lust” (as Aleman's brief puts it) is irrelevant; the test for probable cause abstracts from the state of mind of the arresting officer. Whren v. United States, 517 U.S. 806, 812–13, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). [2] The second arrest, the arrest for murder, is a different matter. Had Carlson not lied to the pathologist and obstructed Booker's efforts to investigate Danielle, the prosecutor would have had no basis for charging Aleman with murder or any other crime, and so Aleman would not have been rearrested. For without Carlson's obstruction of justice the pathologist's evaluation would have tended to exonerate Aleman, and Booker's investigation of Danielle would have identified her as far more likely to have been Joshua's killer than Aleman. And without improper tactics by the police at Aleman's interrogation (discussed next), there would have been no “confession” to provide evidence of his guilt. In sum, the police lacked probable cause to arrest Aleman the second time, and so that arrest violated the Fourth Amendment. Sroga v. Weiglen, 649 F.3d 604 (7th Cir.2011). So clear is the absence of probable cause that Carlson cannot take shelter in the doctrine of qualified immunity, which provides a defense if a reasonable officer could have mistakenly believed that probable cause existed. Wollin v. Gondert, 192 F.3d 616, 621 (7th Cir.1999). A reasonable officer knowing what Carlson knew would not have thought that Aleman was probably Joshua's killer. [3] Whether the interrogation of Aleman violated Miranda is a separate question. The district judge ruled that it did not because the officers might reasonably have believed that Aleman had waived his Miranda rights. [4] [5] If and when Aleman invoked his right to counsel, Micci and Villanueva were required to stop questioning him. “[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused ..., having expressed his *905 desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, ex-changes, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484–85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (emphasis added; footnote omitted); see also Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Davis v. United States, 512 U.S. 452, 458–59, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). [6] Aleman indicated a desire for the assistance of counsel twice, and only after responding to further police-initiated custodial interrogation did he agree to be questioned. He said first “I gotta call my guy” (his lawyer) and after speaking to him reported that the lawyer had told him not to speak to the police—yet Micci continued to urge him to sign a Miranda waiver. Aleman invoked his right to counsel the second time when he asked to call his lawyer again. He might have done so a third time, but was prevented when Micci or Villanueva told him to hang up and added, “I ask that you don't use the phone again until we decide what we're gonna do.” When a suspect invokes his right to counsel, the police may not recommence questioning unless the suspect's lawyer is present or the suspect initiates the conversation himself. Minnick v. Mississippi, 498 U.S. 146, 151–52, 111 S.Ct. 486, 112 L.Ed.2d 489 (1990). Instead of shutting up after Aleman sought his lawyer's aid, the officers, exploiting his distraught state, badgered him to waive his Miranda rights, as in Minnick v. Mississippi, supra, 498 U.S. at 148–52, 111 S.Ct. 486, Smith v. Illinois, 469 U.S. 91, 92–93, 98–99, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984) (per curiam), and United States v. Lee, 413 F.3d 622, 624, 627 (7th Cir.2005). In Minnick the police left off questioning the suspect after he asked to speak to his lawyer, and allowed him to consult with the lawyer. But then a police officer came by and questioned him outside the lawyer's presence, and the Supreme Court ruled that this was a violation of Miranda and Edwards because it was not true that “the protection [conferred by] Edwards terminates once counsel has consulted with the suspect. In context, the requirement that counsel be ‘made available’ to the accused refers to more than an opportunity to consult with an attorney outside the interrogation room.” 498 U.S. at 151–52, 111 S.Ct. 486. [7] The defendants argue that Aleman's invocation of his right to counsel was ambiguous and therefore ineffectual, as in Davis v. United States, supra, 512 U.S. at 459, 114 S.Ct. 2350. But invocation just requires a “statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney,” id., and we have held that there was no ambiguity when a suspect said, “I think I should call my lawyer.” United States v. Lee, supra, 413 F.3d at 626; see also Lord v. Duckworth, 29 F.3d 1216, 1219–21 (7th Cir.1994). It's true that “am I going to be able to get an attorney?” was held ambiguous and hence ineffectual in United States v. Shabaz, 579 F.3d 815, 819 (7th Cir.2009) (emphasis in original), but this case is closer to Lee than to Shabaz. Anyway the defendants' argument comes too late; they forfeited it by failing to make it in the district court. [8] [9] The Miranda rule is intended to backstop the right conferred by the Fifth Amendment not to be compelled to incriminate oneself, by excluding from the defendant's trial the confession that the violation enabled the police to elicit when upon arresting they questioned him. Aleman was never tried. But the statement he made to the officers who questioned him was *906 used against him in a criminal proceeding—it was an indispensable ground of his indictment for murder, and thus made the violation of