Vol. 85, No. 8, August 2012
The highest courts of the United States and Wisconsin recently issued opinions altering a long-standing rule of practice related to the right to counsel in criminal cases. Following a 2009 U.S. Supreme Court decision and a 2011 Wisconsin Supreme Court decision, a door allowing police officers to approach and question defendants who have availed themselves of their right to counsel during formal criminal proceedings is now wide open at the federal level and ajar at the state level. These decisions could affect routine practice in criminal proceedings, although it is not yet clear what the precise effect will be in Wisconsin, given a divided plurality on the issue in the Wisconsin Supreme Court.
This article focuses on these cases, Montejo v. Louisiana1 and State v. Forbush,2 and two important legal issues they involve: the right to counsel, and the influence of federalism in criminal cases in Wisconsin. After surveying relevant pre-Montejo U.S. Supreme Court case law, the article discusses Montejo and the significant shift in jurisprudence involving the right to counsel that it marked. The article then examines Wisconsin law on the right to counsel, focusing on the Wisconsin Supreme Court case that Montejo threatens to overrule; analyzes Forbush and compares it to Montejo; and describes developments in defendant Forbush's case after the Wisconsin Supreme Court issued its decision. Next, the article looks at the federalism implications in criminal cases in Wisconsin and other state courts' treatment of Montejo. It concludes by discussing the practical implications, post-Forbush, for Wisconsin attorneys and other participants in the court system.
Typical Scenario Implicating Right to Counsel
The following hypothetical provides a factual backdrop of the issues addressed in these decisions. A state prosecutor files a complaint in circuit court charging an individual with a felony offense. The defendant is arrested and then hires an attorney, who promptly notifies the prosecutor that the defendant is represented. Despite this, before the initial court hearing and while the defendant is still in custody, police detectives question him about the charged offense, without telling the defense attorney that they are planning to do so. They use interrogation tactics and persuasive appeals, telling the defendant that he will benefit by talking to them without his lawyer present, and they ultimately obtain a statement about the charged offense that, they hope, the prosecutor will seek to use in court against him. Once the statement is obtained, the defendant is brought to court, where his attorney awaits.
Pre-Montejo Case Law
Before the U.S. Supreme Court's decision in Montejo v. Louisiana in 2009, such conduct was unconstitutional and would have rendered inadmissible in court any statement obtained as a result, on grounds that the questioning violated the defendant's Sixth Amendment right to counsel in a criminal case. The law was clear: U.S. Supreme Court precedent on the right to counsel prohibited the government and its agents from directly contacting or questioning a defendant represented by counsel during a pending criminal case, unless the defendant's attorney was present. In short, once a case was filed, all contact was to go through the attorney, if the defendant was represented by counsel. The rule was universally accepted by criminal justice professionals – prosecutors, police officers, and defense attorneys – and it provided clear boundaries in the intensely adversarial setting of contested criminal cases.
The U.S. Supreme Court established this rule in Michigan v. Jackson,3 which held that once a charged defendant requests counsel at an arraignment or similar court proceeding, the Sixth Amendment right to counsel attaches, and police are prohibited from initiating interrogation about the subject matter of the charged offense.4 Jackson relied primarily on cases that discussed the "broad protections of the Sixth Amendment right to counsel – not its Fifth Amendment counterpart."5 The Jackson rule "remained firmly rooted in the unique protections afforded to the attorney-client relationship by the Sixth Amendment."6
Since the mid-1960s (when Miranda v. Arizona7 was decided), Miranda warnings were deemed sufficient to protect, before charges were filed, an individual's Fifth Amendment rights to counsel and to remain silent. However, the Supreme Court recognized that once the government has narrowed its prosecutorial focus on one individual and files a formal charge, the defendant requires greater protection from the possibility of being confronted by the adversary party – the government – while unaided by counsel.
This distinction between suspect and charged defendant sought to redress "the imbalance between the State, a powerful, sophisticated, and determined adversary, and the accused, allowing the accused to rely upon the services of an attorney as a medium during critical stages of a criminal proceeding."8 Civil law attorneys adhere to the same rule, avoiding any direct contact with the other party to a pending case when they know that the party has an attorney.
Montejo Decision Upends Interrogation-Related Law
In Montejo, the U.S. Supreme Court overturned Jackson by a 5-4 vote, holding that the U.S. Constitution no longer bars law enforcement officers from initiating postcharging interrogation of a criminal case defendant outside the presence of counsel, even when officers are aware the defendant is represented.9 By allowing police to directly approach and question criminal defendants whom they know to have attorneys while criminal proceedings are pending, Montejo opened a door previously recognized as closed. Montejo's scope is not limited by a seldom-recurring factual scenario; the decision has considerable potential to affect the adversarial dynamic in untold numbers of criminal court cases nationally. It turned the previous rule on its head and shifted the balance of power dramatically in favor of the government.
In overturning precedent, the Montejo majority redefined the underlying rationale for the U.S. Supreme Court's decision in Jackson, shifting it from robust protection of an accused's right to counsel in formal adversarial proceedings to the prevention of confessions induced by police badgering.10 That shift provided the linchpin to the Montejo Court's conclusion that Jackson should be overruled. The Montejo Court ruled that Fifth Amendment Miranda warnings would suffice to protect against police badgering and protect Sixth Amendment rights following initiation of formal charges.11
The Court's abandonment in Montejo of the Jackson rationale was the subject of dispute. Writing in dissent, Justice John Paul Stevens, who authored the majority opinion in Jackson, argued that Jackson made no mention of the anti-badgering considerations emphasized in Montejo and instead relied primarily on cases discussing the Sixth Amendment's broad protection of the right to counsel.12
Lessons for Criminal Defense Attorneys after State v. Forbush
Despite the limited precedential value of Forbush, there are lessons to be learned from the case.
- Once retained or appointed to represent an individual, a criminal defense attorney should give written notice to the prosecutor of the representation and request that the client not be approached directly and that all communication go through the attorney. Give a copy of this notice to any police department or other investigative body involved in the case.
- Regularly remind clients not to speak with opposing counsel, law enforcement officials, or any other person involved with the case.
- Instruct clients how to unequivocally self-invoke their right to counsel. Provide clients with an invocation-of-rights card.
In Wisconsin, the Montejo decision called into question the continued validity of the leading Wisconsin Supreme Court case addressing this issue, State v. Dagnall.13 Dagnall, which relied in part on Jackson, held that state actors violate a defendant's Sixth Amendment right to counsel if they initiate questioning of the defendant concerning pending criminal charges after becoming aware that the defendant is represented by counsel.14
Like Jackson, Dagnall was based on the principal that "the Sixth Amendment right to counsel offers constitutional safeguards to the accused once the State initiates adversarial proceedings … protecting the unaided layperson at critical confrontations with his expert adversary, the government, after the adverse positions of government and defendant have solidified with respect to a particular crime."15 Dagnall simply reaffirmed an already canonical criminal-practice rule: once charged, a criminal defendant who has counsel is protected from further government-initiated questioning and interrogation efforts.
Dagnall was also consistent with prior Wisconsin jurisprudence recognizing a robust right to counsel. For example, in Carpenter v. County of Dane,16 decided 11 years after statehood and more than 100 years before the U.S. Supreme Court recognized a similar right under the U.S. Constitution, the Wisconsin Supreme Court held that an accused has a fundamental right to an attorney under the Wisconsin Constitution and thus counties must appoint lawyers, to be paid by the government, for indigent accused felons. After Carpenter, Wisconsin continued to advance the right to counsel in criminal prosecutions under the Wisconsin Constitution, as opposed to most other states prior to incorporation of the federal right to counsel in state criminal prosecutions.17
Despite this history, Dagnall's partial reliance on Jackson meant that Dagnall rested on a shaky foundation after the U.S. Supreme Court overturned Jackson in Montejo. It was in the midst of this federal/state conflict that the Forbush case was decided.
State v. Forbush
In May 2008, Brad Forbush was arrested in Michigan, after being formally charged with sexual assault and false imprisonment in Sheboygan County a day earlier. He waived extradition to Wisconsin and was transported to the Sheboygan County Jail a week later. During the week between Forbush's arrest in Michigan and his arrival in Wisconsin, his family retained counsel to represent him in the charged felony case in Sheboygan. The attorney notified the Sheboygan County District Attorney that Forbush was represented.
Nevertheless, in the hours between his arrival in the Sheboygan County Jail during the middle of the night and his initial appearance later that morning, Sheboygan County detectives questioned Forbush, in an attempt to obtain a statement about the charged offense. This was done without notifying Forbush's counsel. Following a lengthy discussion with the detectives about whether he should waive his rights to counsel and to remain silent, Forbush signed a Miranda-rights waiver form and provided a statement.
That statement, and the process by which it was obtained, became the subject of four years of litigation, beginning with a motion to suppress before the circuit court, proceeding upward through the Wisconsin Court of Appeals and the Wisconsin Supreme Court, and ending back in Sheboygan County Circuit Court with Forbush's testimony and ultimate acquittal at a jury trial.
When Forbush was interrogated, and litigation challenging his statement began in circuit court, Jackson and Dagnall were the controlling law in the United States and Wisconsin, respectively, on the issue of police-initiated interrogation of charged defendants. Relying on Dagnall, the Sheboygan County Circuit Court granted Forbush's motion to suppress his statement on the basis that because law enforcement officers initiated interrogation of him after formal criminal charges had been filed, he had retained counsel, and the state had been notified that an attorney had been hired, Forbush's right to counsel under the Sixth Amendment was violated. The state appealed. Following initial briefing to the Wisconsin Court of Appeals but before that court issued a decision, the U.S. Supreme Court issued its opinion in Montejo, which called into question whether Dagnall remained valid precedent.
After additional briefing on the effect of Montejo, the court of appeals held that Montejo effectively overruled Dagnall, and reversed the circuit court's decision.18 The court of appeals' decision was an unequivocal adoption of Montejo for Wisconsin defendants and changed the legal landscape for the Forbush case by overturning what both sides reasonably relied on as precedent. Forbush petitioned the Wisconsin Supreme Court for review, arguing that Dagnall should be upheld on state constitutional grounds, specifically, article I, section 7, which states, in part, "in all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel."
The Wisconsin Supreme Court granted review, and in reversing the court of appeals, framed as the central issue whether the U.S. Supreme Court's decision in Montejo "requires us to overrule Wisconsin precedent that established the parameters of a charged defendant's right to counsel in Wisconsin."19 A majority of the court ultimately held that Montejo did not require such a result and it reversed the court of appeals, ruling that Forbush's right to counsel was violated and his statement must be suppressed.20
Despite a four-justice consensus on the holding in Forbush, the majority was unable to agree on a rationale. Justice Roggensack reasoned that Forbush retained and actually received the services of an attorney before the interrogation, thus distinguishing Montejo, in which counsel was appointed but the defendant had not yet affirmatively engaged the services of counsel, and thus avoiding the question whether Montejo overruled Dagnall. She therefore concluded that law enforcement officers violated Forbush's right to counsel under either the federal or the state constitution.21
Chief Justice Abrahamson, joined by Justice Bradley, concluded that Forbush's statement was obtained in violation of the right to counsel under article I, section 7 of the Wisconsin Constitution. Relying on Wisconsin's long history of protecting an accused's right to counsel, Chief Justice Abrahamson grounded her opinion squarely on principles of federalism, reaffirming that the Wisconsin Supreme Court has the inherent authority to interpret its own constitution as affording greater protections than the U.S. Supreme Court has required pursuant to analogous federal constitutional provisions.22
Finally, Justice Prosser, who authored Dagnall, concluded that Forbush's statement should be suppressed because law enforcement officers violated the clearly established law – set forth in Dagnall – in effect when Forbush was interrogated.23 Although not rejecting the argument that Montejo called into question the continued vitality of Dagnall, Justice Prosser reasoned that it was not necessary to decide whether Dagnall was overruled by the current controversy because Dagnall was valid law when Forbush was interrogated: it was "enough now to uphold the protections in place at the time Forbush was questioned in violation of settled law."24
The Forbush case also generated two dissenting opinions. Justice Crooks concluded that Montejo clearly overruled Dagnall, because both holdings were based entirely on the Sixth Amendment to the U.S. Constitution, rather than on article I, section 7 of the Wisconsin Constitution.25 Justice Ziegler and Justice Gableman joined this opinion, but Justice Ziegler also wrote separately, joined by Justice Gableman. Justice Ziegler wrote that although Dagnall set forth "a workable standard for those in the criminal justice system … and articulated a sound and fair rule,"26 she was unwilling to preserve this rule based on the state constitution and deferred to the U.S. Supreme Court's new interpretation of the Sixth Amendment right to counsel.
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Given the splintered decisions in Forbush and the majority's failure to reach a single rationale for the result, the case's precedential value appears to be minimal for other Wisconsin courts, which inevitably will be faced with cases involving similar facts. It appears that six justices agree that Montejo overruled Dagnall, but nevertheless four justices, relying on three separate rationales, ruled that Forbush's statement must be suppressed.
In a section of his concurrence titled "Future Cases," Justice Prosser recognized the uncertainty moving forward, and opined that Montejo leads to more confusion about what an accused must do to invoke his or her right to counsel during police questioning, particularly when his or her attorney is not present.27 Justice Prosser also noted that the majority opinion in Montejo invited states, if they so chose, to preserve their current rules regarding police-initiated questioning of represented defendants, but his concurrence falls short of accepting that invitation and only hints that future cases could result in the Wisconsin Constitution issue being addressed.28
Implications of Forbush
In the end, Forbush offers little guidance for courts, law enforcement officers, and attorneys.29 If prosecutors and police interpret the 4-3 ruling in Forbush requiring suppression as having no precedential value because Justice Prosser's concurrence was based on pre-Montejo law, eventually there may be a shift toward acceptance of the practice of police attempting to interrogate defendants whom they know are represented by counsel during pending criminal cases. This would be a complete break from previously accepted rules of practice and a major shift in power in favor of the government in this area of law.
Perhaps telling is that for the justices who concluded that suppression was required, and to a smaller extent for dissenting Justice Ziegler, who opined that the previous Dagnall rule was workable and fair, the practice of police-initiated interrogations of charged defendants who are represented by counsel appears objectionable to varying degrees. This is likely a result of the universal acceptance of the longstanding and simple rule in all criminal cases before Montejo and all civil cases currently that attorneys and their agents may contact opposing parties who are represented by counsel in a pending court case only through the opposing party's attorney. That rule embodies accepted notions of fair play and ethical behavior among lawyers in their dealings with opposing parties whom they know to be represented.
An online search of cases decided in states other than Wisconsin since Montejo was handed down revealed that no other state supreme court has declined to extend Montejo to a case with facts similar to those in Forbush.30 It appears that the U.S. Supreme Court's break with precedent at the federal level is being followed by states other than Wisconsin. The holding in Forbush is notable for this reason, despite the mixed rationale and limited precedential value it offers. The Wisconsin Supreme Court, despite well-publicized "ideological divisions," declined to follow lockstep with the U.S. Supreme Court ruling in Montejo, which itself was determined by a 5-4 ruling.
The Forbush case also suggests that it is unlikely that the current Wisconsin Supreme Court will use the Wisconsin Constitution or federalism principles to expand minimum federal constitutional protections for defendants. Given Wisconsin's long-standing protection of the right to counsel in criminal cases, and the existence of clear Wisconsin precedent in Dagnall providing a generally accepted rule regarded as fair and workable, one might have predicted that preserving existing law on state constitutional grounds was likely. However, despite clear authority to do so, under principles of federalism and recent Wisconsin Supreme Court decisions embracing a willingness to do so in criminal cases,31 the divided court was unable to reach a consensus on a state constitutional rationale for maintaining the Dagnall rule. Forbush is thus an example of the current court's inability to agree on a federalist template in criminal cases and is a new comment on Wisconsin's commitment to the role of counsel in criminal court cases.
Despite the limited precedential value of Forbush, there are lessons to be learned from the case. First, since prosecutors and police may still choose to adhere to the old standard when asked to do so, a criminal defense attorney, once retained or appointed to represent an individual, should advise the prosecutor of the representation and request that the client not be approached directly and that all communication go through the attorney. This notice to the prosecutor should be in writing and a copy should be sent or delivered to any police department or other investigative body involved in the case. Second, the defense attorney should regularly remind his or her client not to speak with opposing counsel, law enforcement officials, or any other person involved with the case. This is particularly important given the government's authority to arrest, detain, and hold incommunicado defendants, cut off from outside contact, as they did in the Forbush case. Lastly, the defense attorney should instruct clients how to unequivocally self-invoke their right to counsel, and provide them with the means to do so, such as an invocation-of-rights card.
Effect of Forbush on Forbush
Subsequent procedural history in Forbush's case illustrates the value of the Dagnall rule and the potential danger of abrogating it. Following the Wisconsin Supreme Court's decision, the prosecution proceeded to a jury trial in Sheboygan County Circuit Court, where Forbush testified at trial on his own behalf. Had his testimony been inconsistent with his initial statement to police detectives four years before, the prosecution would have used the prior statement to impeach Forbush before the jury. However, Forbush's prior statement to police after his arrest was not a confession but a statement of his actions, denying the charged offenses. When Forbush testified at trial, his testimony was consistent with the earlier statement and thus was not impeached. The jury acquitted Forbush of all charges.
Craig A. Mastantuono, DePaul 1992, and Rebecca M. Coffee, Marquette 2002, are criminal defense attorneys with Mastantuono Law Office S.C., Milwaukee. In early 2012, they concluded representation in State v. Forbush, a four-year journey from trial prosecution, through the Wisconsin Supreme Court, and back before a circuit court jury. Contact the authors at firstname.lastname@example.org and email@example.com.
The same statement, given twice, once to law enforcement officers while Forbush was in custody and once in a court of law to a jury, produced separate and distinct results, serving once to incriminate Forbush and once to exonerate him. The jury, presented with Forbush's testimony and cross-examination in court, accepted his explanation of the incident.32 The police, in a custodial interrogation, did not, and were subsequently unable to offer their characterization of Forbush's custodial statement during the prosecution's case in chief. These differing results make sense when one considers the problematic and inherently biased and coercive setting of custodial interrogation that the 1966 U.S. Supreme Court recognized in Miranda. To protect the unaided suspect from this setting, that Court mandated standard warnings, and the 1986 U.S. Supreme Court followed this by prohibiteing police-initiated interrogations of represented charged defendants in Jackson. Dagnall emanated from these holdings.
The current U.S. Supreme Court obviously is pulling back from these protections, while the Wisconsin Supreme Court appears reluctant to follow but also appears unable to reach agreement to use the only vehicle for keeping the Wisconsin rule in effect, the Wisconsin Constitution. Moving forward, as Justice Prosser recognized, Montejo is unquestionably controlling law in Sixth Amendment right to counsel cases. Whether the ruling in Forbush is indeed "enough now" to uphold those protections, ultimately afforded to Forbush, for future subjects of these interrogations remains to be seen.
1 129 S. Ct. 2079 (2009).
2 2011 WI 25, 332 Wis. 2d 620, 796 N.W.2d 741.
3 475 U.S. 625 (1986).
4 Id. at 636.
5 Montejo, 129 S. Ct. at 2110 (Stevens, J., dissenting).
6 Id. at 2111 (Stevens, J., dissenting).
7 384 U.S. 436 (1966).
8 McNeil v. Wisconsin, 501 U.S. 171, 177-78 (1991).
9 Montejo, 129 S. Ct. at 2086-87.
10 Id. at 2086.
11 Id. at 2090.
12 Id. at 2096 (Stevens, J., dissenting).
13 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680.
14 Id. ¶¶ 4, 54. In Dagnall, the state did not raise the issue whether the defendant properly invoked his right to counsel under article5 I, section 7 of the Wisconsin Constitution, Wisconsin's right-to-counsel provision, and therefore the Dagnall court did not address it, instead finding a constitutional violation under the Sixth Amendment to the U.S. Constitution. Id. ¶ 28 n.7.
15 Id. ¶ 29 (internal citations omitted).
16 9 Wis. 274, 276 (1859).
17 See, e.g., John v. Municipal Ct. of Milwaukee Cnty., 220 Wis. 334, 264 N.W. 829 (1936) (recognizing different rule in Wisconsin – versus other jurisdictions – requiring compensation for court-appointed lawyers in criminal cases).
18 Forbush, 2010 WI App 11, ¶ 2, 323 Wis. 2d 258, 779 N.W.2d 476.
19 Forbush, 2011 WI 25, 332 Wis. 2d 620.
20 Id. ¶¶ 2, 58.
21 Id. ¶ 2.
22 Id. ¶ 71.
23 Id. ¶ 88.
24 Id. ¶¶ 97, 116
25 Id. ¶ 118 (J. Crooks dissenting).
26 Id. ¶ 157.
27 Id. ¶ 112.
28 Id. ¶ 106.
29 For an example of the local legal community's reaction to abrogation of Wisconsin's Dagnall rule, see David Ziemer, No Greater Right to Counsel in Wisconsin, Wis. L. J., Jan. 4, 2010. "[I]t is no longer sufficient in Wisconsin, in order to guard against the interrogation of a client who has already been charged, to inform the state that you represent him."
Additionally, the extension of Montejo's ruling to state court proceedings is already the subject of national academic critique. See, e.g., Michael Mims, Note, A Trap for the Unwary: The Sixth Amendment Right to Counsel after Montejo v. Louisiana, 71 La. L. Rev. 345 (2010).
30 A Westlaw review of Montejo v. Louisiana, 566 U.S. __, 129 S. Ct. 2079, on June 25, 2012, identified six cases (of 791 citing references) either distinguishing or declining to extend Montejo. However, unlike Forbush, all these cases were factually distinguishable from Montejo.
31 See, e.g., State v. Knapp, 2005 WI 127, ¶¶ 59-62, 285 Wis. 2d 86, 700 N.W.2d 899 (recognizing greater protection under Wisconsin Constitution resulting from Miranda violations than recognized by U.S. Supreme Court interpretation of 5th Amendment to U.S. Constitution); State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582 (recognizing greater due process protection under Wisconsin Constitution than recognized by U.S. Supreme Court interpretation of U.S. Constitution in area of pre-trial identification of suspects).
32 The ideal model for producing truthful and reliable evidence is live testimony of witnesses, under oath, in open court, and subjected to the crucible of cross-examination. See, e.g., Crawford v. Washington, 541 U.S. 36, 61 (2004).