Inside Track: Right to counsel: Divergence of opinion leaves law unsettled in Wisconsin:

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  • Right to counsel: Divergence of opinion leaves law unsettled in Wisconsin

    Recently, the Wisconsin Supreme Court could not agree on the correct analysis to employ when deciding whether police violate a charged defendant's right to counsel if the defendant has already retained counsel, but does not unequivocally ask for counsel during interrogation.

    Joe Forward

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    Right to counsel: Divergence of opinion leaves law unsettled in Wisconsin

    May 18, 2011 – Miranda warnings protect suspects who do not wish to speak with police without counsel present. The protection extends to suspects, in custody, who expressly assert or invoke their right to counsel. But what happens when a suspect is already charged, retains counsel, and police know the defendant has retained counsel before interrogation?

    Until recently, the law was relatively settled in Wisconsin. Retaining (or being appointed) counsel automatically invoked a right to counsel during any subsequent police interrogation.1 The defendant did not have to expressly assert or invoke the right during interrogation.

    In 2009, a U.S. Supreme Court opinion differed from Wisconsin law on the issue. In Montejo v. Louisiana, 556 U.S. __, 129 S. Ct. 2079 (2009), the nation’s high court ruled that a charged defendant must make an unequivocal request for counsel to invoke the right to counsel.

    In the recent case of State v. Forbush, 2011 WI 25 (April 29, 2011), the Wisconsin Supreme Court ruled 4-3 in favor of suppressing incriminating evidence obtained during a police interrogation that took place after the defendant was charged and retained counsel.

    But the four justices that ruled in favor of the defendant could not agree on the reasoning that required such a conclusion. The three justices in dissent argued the court must follow Montejo, which would have allowed the incriminating statements to be admissible.

    Attorney Colleen Ball of the State Public Defender’s appellate division in Milwaukee, who submitted an amicus curiae brief on behalf of the SPD in the case, stated in an email that “because none of the separate opinions commands a majority, the holding is uncertain, and defense counsel must therefore be extra-vigilant in safeguarding clients’ rights.”


    In May of 2008, the State of Wisconsin filed a criminal complaint against Brad Forbush, charging him with second-degree sexual assault and false imprisonment. A warrant was issued, and Forbush was arrested in Michigan about a week later.

    Forbush retained his brother, a licensed Michigan attorney, to represent him at extradition proceedings in Michigan. Forbush waived extradition, and he was transported to the Sheboygan County Sherriff’s Department, where a detective began questioning.

    The detective asked whether Forbush was willing to waive his right to counsel, and after 28 minutes of interrogation, Forbush gave a verbal waiver of rights and signed a waiver of rights form. Subsequently, Forbush made incriminating statements.

    After the interrogation, Forbush was taken to his initial appearance on the charges, where both Forbush’s Michigan attorney (his brother) and Wisconsin attorney Rebecca Coffee appeared on his behalf.

    Before trial, Forbush moved to suppress the incriminating statements he made to the detective on the ground that his already-retained counsel was not present when he made the statements. That right was automatic, Forbush argued, under the Sixth Amendment2 to the U.S. Constitution and Art. I, Section 7,3 of the Wisconsin Constitution. In other words, Forbush asserted it was not necessary to expressly invoke the right, and his waiver was invalid.

    The circuit court ruled the statements must be suppressed, but a Wisconsin appeals court reversed, concluding that Montejo does not prevent police from questioning a defendant who has been charged and is represented by counsel.

    Majority conclusion but differing analysis

    Justice Patience Roggensack wrote a lead opinion in which she concluded that Forbush’s right to counsel was invoked when he was charged and retained counsel, so the subsequent interrogation violated his rights under the Wisconsin Constitution.

    In so concluding, Roggensack stated that Montejo “does not sanction the interrogation that occurred” and “Forbush was not required to ‘re-invoke’ his right to counsel when the investigator initiated interrogation.”

    “The Montejo decision did not conclude that a charged defendant who has affirmatively invoked his Sixth Amendment right to counsel by retaining and receiving the services of a lawyer for the offenses charged must ‘re-invoke’ his Sixth Amendment right to counsel every time law enforcement attempts to interrogate him,” Roggensack wrote.

    Roggensack noted that in Montejo, it was not clear whether the defendant invoked his Sixth Amendment right because he “did not affirmatively request and retain counsel.”

    The lead opinion concluded that Forbush invoked his Sixth Amendment right when he retained an attorney in Michigan, because he had already been charged in Wisconsin. This conclusion is consistent with Wisconsin law as it has existed under Dagnall.

    Chief Justice Shirley Abrahamson wrote a concurring opinion, joined by Justice Ann Walsh Bradley. The chief justice stated that Justice Roggensack’s lead opinion carried no precedential value because, although four justices agreed to reverse the appeals court, they could not agree on the rationale.

    Abrahamson asserted that the U.S. Supreme Court’s interpretation of the Sixth Amendment in Montejo supersedes Dagnall. But state courts have, without question, “the power to interpret their state constitutions differently” than the U.S. Supreme Court has interpreted “analogous federal constitutional provisions,” the chief justice wrote.

    Thus, the Wisconsin Constitution protects Forbush’s right to counsel under interpretations of law in Dagnall and other Wisconsin cases, Abrahamson concluded.

    “My conclusion is grounded in Wisconsin’s long history of protecting an accused’s meaningful right to counsel, a history dating back well before the protections under the Sixth Amendment were extended to the people of this state,” Abrahamson wrote.

    Justice David Prosser agreed with the ultimate result that the evidence should be suppressed in violation of Forbush’s right to counsel, but for different reasons.

    In his concurring opinion, Prosser said Dagnall applies because that was the controlling law in Wisconsin when Forbush was interrogated in 2008. He also noted, as did Chief Justice Abrahamson, that Montejo does not bar states from preserving existing state law.

    Prosser also stated that Montejo is “unquestionably the current controlling law on the subject of the Sixth Amendment right to counsel,” but said it was “enough now to uphold the protections that were in place when Brad Forbush was questioned.…”

    Dissents would apply Montejo

    Justice N. Patrick Crooks wrote a leading dissent in which he states that Montejo overrules Dagnall and thus Montejo should be followed as controlling in this case. That is, the incriminating statements Forbush made should have been admitted into evidence.

    Montejo “clarified that only a clear unequivocal request for counsel will invoke the Sixth Amendment right to counsel,” Crooks wrote. “After Montejo, retaining or appointing counsel does not, by itself, serve to invoke the Sixth Amendment right to counsel prohibiting a subsequent police-initiated interrogation.”

    Crooks asserted Montejo requires a defendant to affirmatively invoke the right to counsel, and “there is no evidence that Forbush in fact did so in this case.” He also argued that even if Dagnall survived Montejo, retaining counsel in Michigan for an extradition hearing did not invoke a right to counsel for purposes of the Wisconsin charges.

    Crooks also said the Dagnall decision was based on Sixth Amendment jurisprudence, not the Wisconsin Constitution, and the Supremacy Clause of the U.S. Constitution demands that Wisconsin courts follow U.S. Supreme Court precedent on matters of federal law.

    “In fact, the Dagnall majority referred to the Sixth Amendment 69 times and referred to the Wisconsin Constitution only in a footnote, which was added to make absolutely clear that our decision was not on any interpretation of the Wisconsin Constitution,” Crooks wrote.

    Both Justice Annette Kingsland Ziegler and Justice Michael Gableman joined the Crooks dissent. Ziegler wrote a separate dissent, joined by Gableman. Ziegler emphasized Crooks’ argument that Dagnall was not based on Art. I, Section 7, of the Wisconsin Constitution.

    Dagnall “can no longer be viewed as the law in this state – unless this court was to now rely on the Wisconsin Constitution to uphold Dagnall and the principles stated therein,” Ziegler wrote.

    Advice to defense attorneys

    In light of the Wisconsin Supreme Court’s differing views in Forbush, Ball said “at a minimum, counsel should assume that invocation of the right to counsel must be made unequivocally by the client. Counsel must impress on the client the need to invoke his right to counsel without hesitation or qualification and otherwise to say absolutely nothing.

    “But counsel should do more, by making the client’s invocation known to relevant actors (police; prosecution; court),” Ball advised. “Although not by itself forestalling interrogation (because an assertion of rights is personal to the defendant), if interrogation nonetheless proceeds, counsel’s action may have value in terms of showing the need to deter overbearing police or prosecutorial conduct by suppressing any resultant statement.”


    Craig Mastantuono and Rebecca Coffee of the Mastantuono Law Office S.C., Milwaukee, represented Brad Forbush. Assistant Attorney General Aaron O’Neil represented the state.

    By Joe Forward, Legal Writer, State Bar of Wisconsin


    1 State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680.

    2 The Sixth Amendment to the U.S. Constitution states that in “all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel.”

    3 Art. I, Section 7, of the Wisconsin Constitution states that “[i]n all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel.”