Waiver of Right to Counsel under 6th Amendment during Interrogation

State v. Brad E. Forbush, 2011 WI 25, reversing 2010 WI App  11; for Forbush: Craig A. Mastantuono, Rebecca M. Coffee; amicus: Colleen D. Ball, SPD, Milwaukee Appellate; case activity

Forbush’s 6th amendment right to counsel had already attached – because a criminal complaint had been filed – and he had retained counsel before officers began interrogating him on that charge in the absence of his attorney. Under the discrete circumstances, his statement is suppressible.

Under the discrete circumstances – less than informative, no? Well, so is the decision, which narrowly favors suppression by a 4-3 vote expressed in no fewer than 5 separate opinions, with the majority votes themselves scattered among 3 opinions without agreement as to rationale for the mandate. The threshold problem thus becomes, where’s the holding? (A question that, somewhat surprisingly, hasn’t arisen all that often; but with seemingly permanent fractures among this court’s line-up, it could be one recurrently asked.) Before tackling that question, essentially procedural in nature, brief discussion of the background to this case and the substantive issue raised might be useful.

The once-controlling case, State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680, held that in contrast to the 5th amendment (pre-charge) right to counsel, under the 6th A, the defendant need not unequivocally assert the right to counsel in order to terminate interrogation. More specifically, that the 6th A simply prohibits police from questioning someone already represented by counsel on criminal charges in the attorney’s absence. That was the established rule when Forbush was interrogated, and was the rule the trial judge applied in suppressing his statement. (Forbush didn’t unequivocally assert his right to counsel during interrogaiton, but he was represented by counsel at the time, as the officers well knew.) The State appealed the suppression ruling and while the appeal was pending, the US Supreme Court handed down Montejo v. Louisiana, 556 U.S. __, 129 S. Ct. 2079 (2009), which put 6th A interrogations on the same footing as 5th. As the lower court put it in reversing the suppression order, “Montejo effectively overrules Dagnall,” 2010 WI App 11, ¶2. In other words, the Wisconsin rule, that invocation of right to counsel during interrogation on a pending charge was automatic if the defendant was represented by counsel on that charge was no longer viable under Montejo. At least with respect to 6th amendment analysis – whether Wisconsin might retain that rule as a matter of state constitutional jurisprudence is something else. (To be sure, the court of appeals rejected that possibility, if in a discussion that can fairly be described as cursory, 2010 WI App 11, ¶¶14-16.)

That very brief summary sets the table for the supreme court’s discussion. Although there appears to be majority agreement for the overarching principle that Dagnall is kaput, as a matter of 6th amendment analysis, precious little agreement can be found on anything else. As noted, the mandate – suppression – collects 4 votes but not, critically, the rationale. Good news for Forbush, certainly, because he gets relief. But what about your client? On the subject of ferreting out a case holding from the various fissures in a decision, the court had this to say, in Lounge Management v. Town of Trenton, 219 Wis.2d 13, ¶13, 580 N.W.2d 156 (1998): “Recognizing the potential precedential problems inherent in fractured opinions, the United States Supreme Court held in Marks v. United States, 430 U.S. 188, 193 (1977), that when the Court issues a splintered plurality decision, courts interpreting that decision should regard the opinion of the Justice concurring on the ‘narrowest grounds’ as the Court’s ultimate holding.” In Lounge Management, the court proceeded to analyze United States Supreme Court caselaw, not its own, under this ground rule. Strictly speaking, then, that case doesn’t absolutely control and some other method than “narrowest-ground” analysis might be devised. But what that might be is hard to imagine, so Marks it is, and with that in mind, here’s a rough break-down of the votes in order of appearance (totals in parentheses), with very brief summaries of respective rationales:

1. Justice Roggensack (1), ¶¶1-56. Montejo doesn’t actually change the rule that a defendant who, like Forbush, has retained counsel must “re-invoke” his 6th amendment right to counsel during interrogation. The principles articulated by Dagnall remain “sound policy” and control the issue here. By the act of retaining and receiving the services of counsel, Forbush unequivocally asserted his right to counsel, thereby creating an absolute bar to interrogation.
2. Chief Justice Abrahamson, Justice Bradley (2), ¶¶57-81. Montejo indeed overruled Dagnall, as well as State v. Hornung, 229 Wis. 2d 469, 600 N.W.2d 264 (Ct. App. 1999). But these cases should be followed as a matter of state constitutional analysis, Art. I, Sec. 7. Relief, then, is a matter of state rather than federal constitutional law.
3. Justice Prosser (1), ¶¶82-117. Montejo “undercut many of the major underpinnings of Dagnall,” which was decided under the 6th amendment. Nonetheless, because Dagnall was the applicable authority at the time, police questioning of Forbush was improper “under then controlling Wisconsin law.” Nothing in Montejo requires that its holding be applied retroactively, leaving Wisconsin free to apply a different rule to a pre-Montejo factual context. Law enforcement shouldn’t be “rewarded for disregarding settled law,” therefore suppression would serve a deterrent purpose. The question of whether greater protection than that afforded by Montejo will be necessary in the future “remains to be determined.”
4. Justices Crooks, Ziegler, Gableman (3, dissent), ¶¶118-55. a) As to Justice Roggensack: Montejo overrules Dagnall, which was decided solely under the 6th amendment. Thus, assertion of the right to counsel is the same for both 6th and 5th amendments, which means that merely retaining or receiving appointment of counsel isn’t enough in and of itself to establish assertion of the right to counsel during interrogation. Only an unequivocal assertion suffices. b) As to Justice Prosser: Deterrence is inapt here, because there is no showing the police “conduct was so deliberate and culpable that exclusion is warranted when, in light of Montejo, there was no Sixth Amendment violation.” c) As to Chief Justice Abrahamson / Justice Bradley: nothing in the state constitution supports “an attempt to salvage the Dagnall rule.”
5. Justices Ziegler, Gableman (2, dissent), ¶¶156-60. An embellishment of the reason for joining Justice Crooks’ dissenting opinion: Dagnall, which was decided solely under the 6th amendment with no reference to the state constitution, is no longer good law in Wisconsin. Any effort to root Dagnall in the state constitution should be rejected, because of “the long-standing principle that we follow the United States Supreme Court’s interpretation of the Sixth Amendment when interpreting the parallel provision, Article I, Section 7, of our state constitution.”

And the holding? There appear to be 6 votes (all but Justice Roggensack’s) in favor of the related ideas that Montejo overrules Dagnall, and that mere application of Dagnall to the facts can’t support relief, at least as a matter of 6th amendment analysis. Still, that might not make Justice Roggensack’s opinion entirely irrelevant. The difference between Justice Roggensack and Chief Justice Abrahamson / Justice Bradley seems to turn more on the label than anything else: the one hangs her hat on the federal constitution, the others on state constitutional analysis. If the same facts arise, but in a post-Montejo setting, these three votes would remain in favor of relief (or so one assumes). That leaves Justice Prosser, whose discussion is “narrower” in the concrete sense that he narrowly pins relief on the timing of the case: he limits relief to the fact that this was a pre-Montejo interrogation, and leaves post-Montejo cases to future consideration. But does that make his rationale “narrower” than the others’? Hard to say. Reliance on a “broad” view of the state constitution competes with a “broad” view of deterrence; they just happen to be broad in different ways.

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