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Fractured court leaves law in doubt

Four justices of the Wisconsin Supreme Court agreed recently that a defendant’s custodial statements were properly suppressed, because the defendant had already been charged, had retained counsel and the authorities knew he had retained counsel.

But that is all they agreed on.

Justice Patience Drake Roggensack concluded April 29 that the interrogation violated the Sixth Amendment right to counsel under the U.S. Constitution.

Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley concluded that the interrogation violated only the right to counsel protected by Art. I, sec. 7 of the Wisconsin Constitution.

And Justice David Prosser concluded that the statements should be suppressed because they violated clearly established law at the time, even though he concluded the officers’ conduct would not violate the Sixth Amendment if it occurred today.

The precedential value of the case is thus somewhat uncertain. Abrahamson said in her concurrence, regarding Roggensack’s lead opinion, “It has none.”

But Craig Mastantuono, who represented the defendant, said in an interview, “The sum total of the opinions make it a hard task for law enforcement to interrogate a defendant known to be presented by counsel. I think it will preserve the existing practice” – that such interrogation violates the right to counsel.

The defendant, Brad E. Forbush, was charged in 2008 in Sheboygan County with attempted second-degree sexual assault and false imprisonment. A warrant was issued and he was arrested in Michigan.

Forbush appeared in Michigan, with counsel, and waived extradition to Wisconsin. The district attorney was notified that Forbush was represented by counsel, but Forbush was interrogated anyway. He waived his right to counsel and made potentially incriminating statements.

The circuit court suppressed the statements, but the Court of Appeals reversed. State v. Forbush, 2010 WI App 11, 323 Wis.2d 258, 779 N.W.2d 476. The Court of Appeals relied on a U.S. Supreme Court opinion issued after the interrogation took place, Montejo v. Louisiana, 129 S.Ct. 2079 (2009).

In Montejo, the Court held that a defendant must affirmatively invoke his right to counsel, even though he has been formally charged and is represented by counsel.

The Wisconsin Supreme Court granted review, and reversed the Court of Appeals by a vote of 4-3, although none of the various opinions garnered a majority.

At the time of the interrogation, both Michigan v. Jackson, 475 U.S. 625 (1986), and State v. Dagnall, 2000 WI 82, 236 Wis.2d 339, 612 N.W.2d 680, prohibited police from questioning charged and represented defendants.

Montejo, however, overruled Jackson.

Nevertheless, Roggensack concluded that Montejo did not give officers a blanket right to interrogate defendants, even though they are represented by counsel. Instead, Roggensack read Montejo to hold only that courts are not required to “presume” that a Miranda waiver by a represented defendant is invalid.

Roggensack concluded that, by retaining counsel, Forbush invoked his right to counsel, and he was not required to re-invoke that right when interrogation was initiated.

But Chief Justice Abrahamson and Justice Bradley concluded that suppression of the statements was not required under the U.S. Constitution, in light of Montejo, but could only be suppressed via reliance on the Wisconsin Constitution.

Abrahamson wrote in her concurrence, “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.”

Justice Prosser’s concurrence did not address whether the interrogation was lawful under current law, but held the evidence was properly suppressed by the circuit court, because it was so clearly unlawful at the time it occurred.

Prosser characterized the case as the opposite of the good faith cases that usually arise, in which a practice long considered lawful is held unconstitutional after the fact.

Here, instead, a practice long considered unlawful was later held acceptable.

Prosser opined, “Law enforcement should not be disadvantaged for its ‘objectively reasonable reliance’ on settled law. … Conversely, law enforcement should not be rewarded for disregarding settled law in anticipation that someday it may be overruled. Evidence obtained in clear violation of the constitutional principles announced by this court should be suppressed.”

Justices Annette Kingsland Ziegler, Michael Gableman, and Patrick Crooks dissented, concluding that the U.S. Supreme Court opinion in Montejo was dispositive.

Ziegler wrote in dissent, “In this case, law enforcement acted in direct contravention of clear, then existing law. … I do not condone that action. However given the Supreme Court’s subsequent decision in [Montejo], there is no recourse.”

Future cases

The fate of future cases is addressed in a section of Prosser’s concurrence, appropriately entitled “Future Cases.”

Acknowledging that the bulk of his concurrence is applicable only to interrogations occurring before Montejo was decided, Prosser added, “It is, however, important to note that the [U.S.] Supreme Court invited the states to preserve existing law that police-initiated questioning of accused persons charged with crimes and represented by counsel is presumed invalid and will lead to exclusion of incriminating evidence.”

Prosser added, “Whether rights afforded by the Sixth Amendment will require additional protection in this state remains to be determined. … It is unnecessary here to expound on what additional protections, if any, may be needed in the future.”

Mastantuono emphasized that, for now, Montejo is not the law in Wisconsin, but that given the fractured nature of the opinions, defendants need to continue citing both the Sixth Amendment and Art. I, sec. 7, of the Wisconsin Constitution when challenging interrogations in similar cases.

If there was one thing the four justices did agree on, Mastantuono said, “What happened here doesn’t pass the smell test.”

Case: State v. Forbush, No. 08AP3007-CR

Issue: Where officers interrogated a defendant who had been charged and was known to be represented by counsel, must the defendant’s statements be suppressed?

Holding: Yes, although no majority agreed on the reason.

Attorneys: For Plaintiff: Aaron O’Neil, Madison; For Defendant: Craig Mastantuono, Rebecca Coffee, Milwaukee.

David Ziemer can be reached at

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