Dec. 30, 2009 – A defendant may be questioned outside the presence of counsel by police regarding the criminal charges for which he or she is represented by an attorney, the Wisconsin Court of Appeals held today.

Previously, the U.S. Supreme Court had held in Michigan v. Jackson, 475 U.S. 625 (1986), that under the Sixth Amendment, the right to an attorney is automatically invoked as soon as a defendant is represented so that a defendant’s subsequent Miranda waiver is ineffective. The Wisconsin Supreme Court adopted the Jackson holding in State v. Dagnall, 2000 WI 82.

But in State v. Forbush, 2008AP3007, the court of appeals explained that   the U. S. Supreme Court recently overruled Jackson in Montejo v. Louisiana, 129 S. Ct. 2079 (2009). In Montejo, the Court held that the Fifth Amendment’s Miranda line of cases adequately protects a defendant against police badgering so that Jackson is unnecessary.

The court of appeals concluded that Jackson had been the basis for Dagnall so that Montejo effectively overruled Dagnall as well. Dagnall cannot survive on the basis of the state constitutional right to counsel because the Sixth Amendment to the U.S. Constitution is “virtually identical” to Article I, section 7 of the Wisconsin Constitution, the court said. Also, the court noted, Wisconsin case law shows that law enforcement had been questioning charged and represented defendants until the Jackson and Dagnall decisions instructed otherwise.

With this decision, the court of appeals reversed the Sheboygan Circuit Court which had relied on Dagnall when it suppressed Brad Forbush’s incriminating statements to police made after he had retained counsel on charges of sexual assault and false imprisonment.

A criminal complaint alleged that Forbush invited a neighbor who occasionally babysat his children to his home to watch a recording of her and the children. But Forbush then allegedly played a pornographic DVD and told the neighbor that was what they were going to do. When the neighbor refused and tried to leave, Forbush allegedly blocked her path and grabbed her before she could escape.

Forbush was arrested in Michigan and appeared with counsel at an extradition hearing. He also contended that he was represented by counsel in Wisconsin when he verbally waived his Miranda rights and completed a waiver form for Sheboygan law enforcement. Forbush told police that he did show the neighbor a sexually explicit DVD, that she rebuffed his suggestion that they engage in sexual intercourse, and that he tried to restrain her.