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  • WisBar News
    June 29, 2015

    Wisconsin Supreme Court Clarifies Law on Waiver of Right to Counsel

    Deborah Spanic

    June 29, 2015 – A defendant’s right to counsel when charged with a crime and the law of waiver of that right came under review by the Wisconsin Supreme Court in State v. Delebreau, 2015 WI 55 (June 16, 2015) providing the court an opportunity to clarify previous rulings. 

    The court affirmed the ruling of the court of appeals, holding that a waiver of Miranda rights is sufficient to waive the Sixth Amendment right to counsel, and that Art. I, Sec. 7 of the Wisconsin Constitution does not provide greater protections than the Sixth Amendment in the context of such waiver.

    What Happened?

    On April 14, 2011 Jesse J. Delebreau was charged in Brown County with the delivery of heroin from an earlier narcotics transaction initiated by a confidential informant. That same day, Delebreau made his initial appearance in court where he was represented by a public defender.

    The next day, Delebreau met with an investigator from the Brown County Drug Task Force at the jail. The week prior, sometime between April 7 and April 9, Delebreau sent a note to jail officials requesting to speak with a narcotics investigator in the Task Force about his involvement in the narcotics transaction. The investigator did not know and did not verify if Delebreau had been charged.

    Before beginning the interview, the investigator read Delebreau his Miranda rights, and Delebreau waived his rights and did not ask for counsel.

    In this interview, Delebreau admitted to having sold drugs. Three days later, on April 18, the investigator returned to interview Delebreau a second time. Again, the investigator did not check whether charges had been filed or if Delebreau had counsel.

    Deborah SpanicDeborah Spanic, Marquette 2004, is a guest writer for the State Bar of Wisconsin. She can be reached by email.

    Before the interview took place, the investigator read Delebreau his Miranda rights and later testified that Delebreau stated that “he wasn’t going to be able to beat these charges,” and that “he was going to end up … in prison anyway so he might as well cooperate with law enforcement.” The investigator prepared a statement for Delebreau, which Delebreau signed, showing he was the person who sold heroin to the informant.

    Both interviews were used as evidence in Delebreau’s trial, where a jury found Delebreau guilty of delivery of heroin and the court sentenced him to eight years of imprisonment. Before trial, Brown County Circuit Judge Mark A. Warpinski denied Delebreau’s motion to suppress the statements made in the interviews. The court of appeals affirmed Delebreau’s conviction and the denial of the suppression motion. Delebreau petitioned the Wisconsin Supreme Court for review.


    In writing the majority opinion, Justice David Prosser noted there is lengthy legal background, both at the state and federal level, surrounding the Sixth Amendment right to counsel. In 2000, the Wisconsin Supreme Court in the case State v. Dagnall, followed the standard set at that time by a majority of the U.S. Supreme Court in Michigan v. Jackson, finding that the defendant Dagnall did not need to invoke his right to counsel because he was formally charged with a crime and represented by counsel, and that the Sixth Amendment right to counsel attaches at the initiation of charges.

    Nine years after Dagnall, the U.S. Supreme Court reversed course in Montejo v. Louisiana, overruling Jackson and holding that a defendant’s waiver of his or her Miranda rights is sufficient to waive the Sixth Amendment right to counsel, even though Miranda rights are grounded in the Fifth Amendment.

    The Wisconsin Supreme Court addressed this development in 2011 in State v. Forbush, although by the court’s own admission the case produced five separate opinions that left open the possibility of confusion as to the disposition of the law on this matter in Wisconsin. It’s this confusion that the court sought to clarify with this decision.

    The court confirmed that the U.S. Supreme Court overruled the Wisconsin Supreme Court’s holding in Dagnall with its decision in Montejo. The court in Forbush addressed this as well, stating that “Montejo is unquestionably the current controlling law on the subject of the Sixth Amendment right to counsel,” therefore, a defendant is sufficiently apprised of his or her Sixth Amendment right to counsel by the Miranda warnings, and that a valid Miranda waiver effectively waives the Sixth Amendment right to counsel, as well as the Fifth Amendment right to counsel.

    The court also addressed Delebreau’s argument that his questioning violated his right to counsel under Art. I, Sec. 7 of the Wisconsin Constitution, noting that, “[w]here … the language of the provision in the state constitution is ‘virtually identical’ to that of the federal provision, or where no difference in intent is discernable, Wisconsin courts have normally construed the state constitution consistent with the United States Supreme Court’s construction of the federal constitution.”

    In reviewing both provisions, the court noted no discernable difference between the state and federal constitutions as they relate to the right to counsel, and as such, stated “We see no reason to deviate from our prior practice of interpreting the Wisconsin Constitution’s right to counsel as coextensive with the right under the federal constitution.” As a result, the court affirmed the decision of the court of appeals.

    Chief Justice Patience Drake Roggensack drafted a concurrence. Justice Shirley Abrahamson drafted a dissent, joined by Justice Ann Walsh Bradley, arguing that the state constitutional right to counsel “stands apart from, and has meaning independent of, the corollary right under the federal constitution,” and that although the U.S. Supreme Court has rejected the Dagnall rule in its interpretation of the federal constitution, “this court need not and should not do the same in its interpretation of the state constitution.” Instead, Abrahamson argues, Wisconsin should adhere to the Dagnall rule and “meaningfully protect an ‘accused’s right to counsel in pre-trial interrogation.’”

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