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SCOW clarifies waiver of 6th Amendment right to counsel

State v. Jesse J. Delebreau, 2015 WI 55, 6/16/15, affirming a published court of appeals decision; majority opinion by Prosser, concurrence by Roggensack, dissent by Abrahamson; case activity (including briefs)

Last time SCOW addressed a defendant’s waiver of the right to counsel after being charged with a crime, the result was 5 separate opinions. Discerning the rule of State v. Forbush required clairvoyance. Here, SCOW holds definitively that a defendant’s waiver of his right to counsel in an interrogation before he is charged (under the 5th Amendment) is sufficient to waive his  right to counsel after he is charged (under the 6th Amendment) even though he has appeared in court with a public defender. Despite being represented by an attorney, the defendant must affirmatively invoke his right to counsel. The result is the same under Article 1 §7 of the Wisconsin Constitution.

Delebreau was the subject of a controlled buy on February 21, 2011. About a month later, he was taken into custody on a probation hold. Then the investigator involved in the controlled buy referred criminal charges to the Brown County DA. A few days later, Delebreau sent the investigator a note requesting a meeting, but before  receiving a response, Delebreau made his initial appearance–represented by counsel–in this case where he was charged with the delivery of heroin, as a party to a crime.  The next day (and again 3 days later), the investigator interrogated Delebreau after he waived his Miranda rights. The investigator said he did not know, and did not inquire, whether the charges he referred to the DA had been filed or whether Delebreau’s right to counsel had attached. As you’ve probably guessed, Delebreau confessed and was found guilty of delivering heroin.

Delebreau’s right to counsel attached on April 14, 2011. He did not initiate contact with the investigator after that proceeding. He thus argued that Dagnall (which prohibited police from questioning a person represented by counsel in the attorney’s absence) and Forbush (a mess) governed his case, not Montejo (which held that a person represented by counsel must affirmatively invoke his right to counsel during an interrogation).  That strategy flopped because Montejo was in effect on April 14, 2011, and it had overruled Dagnall. The court of appeals decision in Forbush (also in effect then) acknowledged this overruling. According to Prosser:

Montejo is clear that a defendant is sufficiently apprised of his or her Sixth Amendment right to counsel by the Miranda warnings, and that a valid Miranda waiver effectively waives the Sixth Amendment right to counsel as well as the Fifth Amendment right to counsel.  Montejo, 556 U.S. at 786-87.  Defendants are not entitled to a presumption that their waiver of the presence of counsel is invalid, even if they are already represented by counsel.  Id. at 789-90. Slip op. ¶48.

Dagnall addressed only waiver of counsel under the 6th Amendment, not under its corollary, Article 1 §7 of the Wisconsin Constitution. But the Delebreau majority saw “no discernible difference between these two provisions as they relate to the right to counsel.” Slip op. ¶52. So, predictably, Delebreau lost on this point too. Slip op. ¶57.

The majority assures practitioners that there’s been no “sea change in the law.” Slip op. ¶58.

[T]he Jackson rule (and consequently, our rule in Dagnall) was a fourth layer of prophylaxis deemed unnecessary by the Supreme Court because of other protections——undisturbed by Montejo——already in place.  See Montejo, 556 U.S. at 793-95.  “Under the Miranda-EdwardsMinnick line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the Miranda warnings.”Id. at 794. Slip op. ¶58.

Police still may not badger defendants into waiving their right to counsel. See Patterson v. Illinois, 487 U.S. 285, 292 n.4 (1988).  Police still must cease questioning of criminal defendants when these defendants invoke their right to counsel.  See Edwards, 451 U.S. at 484.  After a defendant invokes the right to counsel, police still may not resume questioning until counsel is present or 14 days have passed. See Maryland v. Shatzer, 559 U.S. 98, 110 (2010); Minnick v. Mississippi, 498 U.S. 146, 153 (1990). Slip op. ¶59.

The decisive tone of Justice Prosser’s opinion is somewhat surprising. His Forbush concurrence seemed pro-Dagnall (which he wrote). See our previous post here. Roggensack’s concurrence argues that the majority opinion “overstates” Montejo‘s holdings. And the record, she said, does not conclusively establish that Delebreau affirmatively invoked his right to counsel as opposed to the SPD just jumping in. Nor does it show the date(s) that such action may have occurred. Slip op. ¶64.  But even if Delebreau did invoke his right to counsel, Roggensack notes that he is the one who reached out to the investigator. Meanwhile, as foreshadowed by Forbush, Abrahmson and Bradley would hold that Delebreau wins under Wisconsin’s constitution.

So the good news is that Delebreau cleared up Forbush. The bad news is that it went the wrong way. Here’s what criminal defense lawyer Craig Mastantuono, who argued Forbush to SCOW, has to say about Delebreau:

SCOW’s decision is not surprising, given that a majority of the justices declined our invitation in Forbush in 2011 to secure the right to counsel in Wisconsin after the SCOTUS weakened that right with its decision in Montejo. Sadly, the federalist interplay between SCOTUS’s interpretation of the U.S. Constitution and SCOW’s interpretation of the Wisconsin Constitution is pretty much dead for this court in the area of criminal justice. It’s clear that the  majority of justices now on SCOW will march lock-step with SCOTUS, even as the federal court overturns precedent and changes a long-established and recognized rule: that once a charged defendant in a criminal case has a lawyer, police and the government may only initiate communication through the accused’s counsel, rather than directly. SCOW’s unwillingness to simply hold that our own constitution requires a fairer playing field between the government and an accused not only abandons the local rule and practice, but is a departure from a nearly two hundred year-old robust recognition of the right to counsel in this State.

{ 1 comment… add one }
  • Robert R. Henak June 17, 2015, 6:26 am

    The majority’s continued attachment to the idea that the meaning of the Wisconsin Constitution is to be decided by nine, or rather five, folks in Washington, D.C.. is a clear breach of the Court’s obligations under the Wisconsin Constitution. Under that document, that every member of the Court swore to uphold, the supreme judicial power over Wisconsin law is the Wisconsin Supreme Court, not changing majorities of the SCOTUS. By merely abdicating their role in that regard, as they have done here, the justices in the majority have both violated both the Wisconsin Constitution and their oaths of office.

    The practice of tying interpretation of the Wisconsin Constitution to whatever silliness comes out of the shifting majorities of the SCOTUS produces the absurd result reflected in the rise and fall of the right to counsel at issue in this case. According to the majority’s “logic,” the Wisconsin Constitution meant what Jackson and Dagnall said it meant. However, because a new majority of the SCOTUS overruled Jackson, the meaning of the Wisconsin Constitution now somehow morphed into something different. With all due respect, it is silly to suggest that the Wisconsin Constitution means one thing on one day and something else the next, simply because some folks changed their reading of a different document. This practice undermines the legitimacy of the SCOW by suggesting a results-based rather than law and logic-based approach to decision-making.

    Of course, the SCOW could reach the same result by exercising rather than abdicating its authority to interpret the Wisconsin Constitution. However, to do so, it must actually and independently analyze the meaning of the terms based on Wisconsin’s history and logic, without giving any more deference to the views of the current SCOTUS majority than it would to the logic of the Supreme Court of Kansas. it may be more work and take more time, but that, after all, is the SCOW’s job.

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