court of appeals decision, review granted 3/16/10; for Forbush: Craig A. Mastantuono, Rebecca M. Coffee
Post-Charge Assertion of Right to Counsel during Interrogation
The mere fact that an attorney represents a defendant formally charged with a crime doesn’t bar the police from questioning the defendant; State v. Todd Dagnall, 2000 WI 82 (“Dagnall was not required to invoke the right to counsel in this case because he had been formally charged with a crime and counsel had been retained to represent him on that charge,” ¶4), overruled by Montejo v. Louisiana, 556 U.S. ___, 129 S. Ct. 2079 (2009).
Forbush was arrested out of state, extradited, and interrogated on his return though an attorney had been retained. (At least, the court is “assuming he was represented because we conclude that even a represented defendant can waive the right to an attorney,” ¶5 n. 2.) The trial court suppressed under Dagnall. As the court of appeals notes, Dagnall holds that “the Sixth Amendment protects defendants from police interrogation if the defendant is formally charged and is represented by an attorney on that charge,” ¶9. In other words, “Wisconsin concluded the right [to counsel] is automatically invoked as soon as a defendant is represented,” ¶10. But Montejo later came to a different conclusion: the defendant must invoke the right to counsel, thus:
¶13 We agree with the State that when the Supreme Court overruled Jackson, it also effectively overruled Dagnall. Not only did Dagnall’s holding rely on the Jackson rule, but Montejo eschewed Dagnall’s central tenet: that the right to an attorney is automatically invoked as soon as a defendant is represented. See Montejo, 129 S. Ct. 2079, 2085. Montejo overruled this interpretation of the Sixth Amendment.
What about “New Federalism,” the authority to grant greater protection under the state constitution? No dice: State v. Paul L. Polak, 2002 WI App 120 held that “the scope, extent and interpretation of the right to assistance of counsel is identical under [both constitutions]”; and, “historically Wisconsin’s Constitution has not provided greater protection than the United States Constitution to a charged defendant’s right to an attorney,” ¶¶14-16.
¶17 Forbush’s suppression motion was based entirely on his claim that he could not waive the right to an attorney. However, in Montejo the Supreme Court held to the contrary: police may interrogate a defendant charged with a crime who waives the right to an attorney. We conclude this holding is the law not only under the United States Constitution, but under the Wisconsin Constitution as well.
Minor procedural point: should the court of appeals have itself abrogated Dagnall, or left it to the supreme court? As far as the 6th amendment aspect is concerned, the court certainly has that power, State v. Edward Terrell Jennings, 2002 WI 44, ¶3 (“when confronted with a direct conflict between a decision of this court and a later decision of the United States Supreme Court on a matter of federal law, the court of appeals may, but is not required to, certify the case to us pursuant to Wis. Stat § 809.61. If it does not, or if this court declines to accept certification, the Supremacy Clause of the United States Constitution compels adherence to United States Supreme Court precedent on matters of federal law, although it means deviating from a conflicting decision of this court”). It might, though, have been better form to certify the issue, especially when the state constitutional aspect is considered.
True, there is indeed language in prior holdings to the effect that the right to counsel is the same under both constitutions. But it isn’t quite that simple, given that Carpenter v. Dane County, 9 Wis. 274 (1859) predated Gideon v. Wainwright, 372 U.S. 335 (1963) by more than a century. You’d think that a right-to-counsel issue of first impression ought be offered to the supreme court.
But there is another, potentially large if fact-contingent sticking point to using this case as a vehicle to overrule Dagnall. The court blandly asserts that “Forbush’s suppression motion was based entirely on his claim that he could not waive the right to an attorney.” Maybe, at the trial level. But on appeal he added a subtle, distinct, and potentially decisive claim, namely: Montejo didn’t change the principle that in the 6th amendment context (unlike the 5th) an equivocal request for counsel can’t support waiver; and, “(s)ince Forbush made at least an equivocal request for counsel during the 25-minute discussion with the Detective prior to signing a waiver of Miranda rights, he invoked his right to counsel, requiring suppression of his subsequent statement.” Recall that Forbush prevailed in the trial court, therefore as a respondent on appeal he can raise most any rationale he wishes in support of the result, whether or not he raised it below. In the narrow sense of delimiting review, his suppression motion is irrelevant, and the court of appeals was flatly wrong to ignore his alternative rationale in support of suppression. As to the details of that argument, first the legal principle. Just last Term, after Montejo had been decided, the supreme court reaffirmed the distinction between equivocal assertions of counsel under the 5th and 6th amendments, State v. Jennifer L. Ward, 2009 WI 60, ¶43 n. 5 (“We note that, after a defendant has been formally charged, the Sixth Amendment right to counsel applies, and in contrast to the Fifth Amendment right to counsel, an equivocal request for counsel in a Sixth Amendment context is sufficient to invoke that right.”). The footnote goes on to favorably cite State v. James H. Hornung, 229 Wis.2d 469, 600 N.W.2d 264 (Ct. App. 1999), which itself held that an equivocal assertion suffices under the 6th A. As to the strength of its factual support, Forbush’s claim of an equivocal assertion appears to be compelling, though that assessment is unimportant given the court of appeals’ inexplicable disinterest in the issue. If Forbush’s alternative argument is correct, something that appears quite plausible, then it would represent the narrow ground for affirmance, without need to reach viability of Dagnall. Two points, then. First, at least in the specific matter of equivocal assertions, a distinction remains between 5th and 6th A rights to counsel, even if the court of appeals has turned a blind eye. Second, whether or not it was required, the court of appeals’ refusal to certify the appeal is curious.