You remember State v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 796 N.W.2d 741? That’s the one that considered whether Montejo v. Louisiana, 556 U.S. 778 (2009), upended the Wisconsin rule that police may not question a person without an attorney present when the person has been charged with a crime and has either retained counsel or received appointed counsel. See State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680. Forbush yielded a “lead” opinion by 1 justice (which no other justice joined), 2 separate concurrences, a dissent, and 4 separate rationales. The decision was mess and thus confusing to the lower courts and the bar. This On Point post teased out the justices’ positions and is worth rereading if you are following this issue.
Fast forward to 2014. The court of appeals has boldly gone where the Forbush court could not. It has held that Montejo, in fact, overruled Dagnall, at least as to the 6th Amendment right to counsel (never mind the state constitutional right to counsel). Let’s see what happened in this case.
Delebreau was taken into custody as part of a drug investigation. After police referred charges to the DA, he asked to speak with someone on the local drug task force. Before police could respond, the State charged Delebreau, and he appeared in court with a public defender. The next day police responded to his request, gave him Miranda warnings, obtained a waiver, and got 2 recorded statements from him. The court of appeals held that Delebreau thereby waived his 6th Amendment right to counsel and thus the trial court properly admitted his statements at trial. It expressly adopted these excerpts from Montejo:
[W]hen a defendant is read his [or her] Miranda rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick, even though the Miranda rights purportedly have their source in the Fifth Amendment:
As a general matter … an accused who is admonished with the warnings prescribed by this Court in Miranda … has been sufficiently apprised of the nature of his Sixth Amendment rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one. [Patterson v. Illinois, 487 U.S. 285, 296 (1988).]
The only question raised by this case, and the only one addressed by the Jackson rule, is whether courts must presume that such a waiver is invalid under certain circumstances. Montejo, 556 U.S. at 786-87. As noted previously, Montejo overruled the Jackson rule, which presumed a waiver to be invalid when a charged defendant was already represented. See id. at 792-97.
Points of interest. (1) This marks the first time any Wisconsin appellate court has attempted to discern the rule of Forbush. Slip op. ¶13. So why is it unpublished? Perhaps the court of appeals lacks confidence in its decision. That would certainly be understandable. See former Judge Michael Brennan’s guest post on “Forbush and the Riddle of a Fragmented Court” here. Pay special attention to the comments on his post. (2) Delebreau also raised a novel argument–that in order to waive a 6th Amendment right to counsel, the State can’t just use Miranda, it must follow the demanding procedures of Faretta v. California, 422 U.S. 806 (1975) and State v. Imani, 2010 WI 66, 326 Wis. 2d 179, 786 N.W.2d 40, which must be satisfied before a defendant may proceed pro se in court. The court of appeal flicks this off with “the argument is poorly developed” and “we are in no position to overrule the United States Supreme Court on a matter of federal constitutional law.” Slip op. ¶17, ¶19. Boy oh boy, lots of ammunition here for a petition for review.
UPDATE: 3/7/14: Though it was not recommended for publication, the opinion has been published after all.