The Wisconsin Supreme Court is revisiting State v. Forbush, 2011 WI 25, 332 Wis. 2d 620, 796 N.W2d 741, a splintered decision (4 different rationales) with an impenetrable rule. In this case, the State obtained two statements from the defendant after he had appeared at arraignment with appointed counsel. The issue is whether the State violated his Sixth Amendment rights.
Issues (composed by On Point):
Whether Delebreau’s Sixth Amendment right to counsel was violated when, after he appeared at his arraignment with a public defender, the State obtained a Miranda waiver and then obtained two statements from him. Delebreau argues that under these circumstances a Miranda waiver was insufficient. Instead, he was entitled to receive a more detailed inquiry about whether he understood the advantages and disadvantages of waiving his right to counsel. See Faretta v. California, 422 U.S. 806 (1975) and State v. Imani, 2010 WI 66, 786 N.W.2d 40.
Whether Montejo v. Louisiana, 556 U.S. 778 (2009) overruled State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680, which held that the Sixth Amendment prohibits police from questioning someone represented by an attorney on criminal charges without the attorney present?
No doubt you are scratching your heads. Didn’t SCOW decide at least that much in Forbush? Maybe. On Point has posted quite a bit on this issue, so if you are following it all you may want to read “Court of Appeals Discerns the Rule of State v. Forbush” here, former Judge Michael Brennan’s guest post “Forbush and the Riddle of a Fragmented Court” here, and post regarding the Forbush PFR grant here. One difference in this case, at least according to the court of appeals decision, is that Delebreau did not claim a violation of the Wisconsin Constitution. That’s striking because in Forbush Chief Justice Abrahamson and Justice Bradley determined that Dagnall remained good law under the Wisconsin Constitution, and Justice Prosser observed that whether the Wisconsin Constitution afforded greater protections than the Sixth Amendment is an open question. On Point does not have access to Delebreau’s petition for review, so we don’t know how it pitched the case. The other difference, according to the court of appeals, is Delebreau’s argument that Faretta, not Miranda, supplies the standard for a defendant’s waiver of his Sixth Amendment right to counsel. We don’t know if that issue was included in his petition for review.