On Point: B. Post-Charge, 6th Amendment

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.

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.

State v. Thaddeus M. Lietz, 2013AP1283-CR, District 3, 5/20/14 (1-judge; ineligible for publication); case activity

Leitz’s statements to police were not obtained in violation of either the Fifth or Sixth Amendment, so the circuit court properly denied his suppression motion.

State v. Jesse J. Delebreau, 2014 WI App 21, petition for review granted, 5/23/14, affirmed, 2015 WI 55; case activity

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),

seventh circuit decision, denying habeas relief in 641 N.E.2d 371 (Ill. 1994) and 521 N.E.2d 38 (1988)

Habeas Review – 6th Amendment Attachment of Counsel – State Court Findings

The Seventh Circuit rejects, on habeas review of his Illinois conviciton, Thompkins’ challenge to admissibility of his statement. Thompkins made his statement after his arrest and, according to the state court, before his initial bond hearing.

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.

court of appeals decision; ror Lewis: John T. Wasielewski; Resp. Br.; Reply Br.

Appellate Procedure – Standard of Review: Government Informant

¶16      Our discussion must begin, as it almost always does, with the standard of review.  In deciding whether a person is a government informant or agent for purposes of this Sixth Amendment analysis, the determination regarding the relationship or understanding between the police and the informant is a factual determination.

State v. Carl A. Lewis, Jr., 2010 WI App 52; for Lewis: John T. Wasielewski; Resp. Br.; Reply Br.

Appellate Procedure – Standard of Review: Government Informant

¶16      Our discussion must begin, as it almost always does, with the standard of review.  In deciding whether a person is a government informant or agent for purposes of this Sixth Amendment analysis, the determination regarding the relationship or understanding between the police and the informant is a factual determination.

decision below: 2010 WI App 11; for Forbush: Craig Mastantuono; Rebecca M. Coffee

Issues:

Whether the right to counsel under the Wisconsin Constitution prohibits the state from interrogating a represented individual once the state is aware of the representation

Whether a suspect made an equivocal request for counsel during police questioning, thereby invoking his right to counsel under the Wisconsin Constitution and requiring suppression of his confession at trial

Whether the circuit court’s suppression order should be affirmed without reaching the viability of State v.

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),