Mastantuono Law Office, S.C.

The Right to Counsel and State Rights

M.L.O. Fights to Keep the Right to an Attorney in Criminal Cases Alive, Robust, and Respected in Wisconsin

On April 29th, 2011, the Wisconsin Supreme Court ruled in favor of a Mastantuono Law Office client in a case involving an important and potentially divisive issue for the criminal justice system. In a 4-3 decision, the Court suppressed evidence obtained during a police interrogation that took place after the State filed a formal charge against our client and after he retained this office as counsel. That decision can be found here: State vs. Forbush Wisconsin Supreme Court Decision.

The facts of the case involved a client whom the Sheboygan County DA charged in a criminal complaint, and who was subsequently arrested on that charge. Mastantuono Law Office notified the Sheboygan DA that it represented the defendant while he was en route from extradition in Michigan, where he was arrested. Prior to his initial appearance in Sheboygan Circuit Court, detectives with the Sheboygan County Sheriff’s Department brought the defendant to an interrogation room and, after approximately 25 minutes of questioning aimed at getting him to talk to police without his lawyers present, obtained a statement from him. He was then brought to court for his initial appearance, where counsel from this office awaited him. Mastantuono Law Office filed a motion seeking to suppress the statement, on the basis that the police conduct violated the defendant’s constitutional right to counsel. The trial court agreed, suppressing the statement, and the State appealed to the Court of Appeals, which reversed the trial court decision on the basis of a recent ruling by the United States Supreme Court, described further below. The Wisconsin Supreme Court granted the defense petition for review, and reversed the Court of Appeals, ruling in favor of the defense. This ruling is a Wisconsin departure from the U.S. Supreme Court’s most recent ruling on police attempts to interrogate a person whom the police know is charged with a crime and is represented by an attorney on the charge.

One of the cardinal rules in criminal law practice has always been that police and prosecutors never directly communicate with a defendant who is represented by a lawyer in a criminal case. It just isn’t done, for a few very important reasons. First, a 1986 United States Supreme Court decision, Michigan vs. Jackson, held that once a person is charged with a crime and represented by a lawyer, police and prosecutors are prohibited from approaching that person and interrogating him about the case, a decision followed and expanded locally by the Wisconsin Supreme Court in a 2000 case State vs. Dagnall. Second, more than most rules, criminal justice lawyers strictly follow this rule because it honors fair play. Once a lawyer represents a person on a case, all communications go through that person’s lawyer, period. This prevents police and prosecutors from seeking an unfair advantage by doing an end-run around the lawyer and questioning the defendant directly. In criminal law practice, where defendants are often in custody and under the stress of fighting the government, and police and prosecutors are trained to exploit this in order to get information from an accused person, the protection afforded by shielding oneself from the government through an attorney can be critical.

This cultural backdrop changed when the United States Supreme Court decided, in the 2009 case Montejo vs. Louisiana, to make defendants in criminal cases fair game for aggressive interrogation tactics aimed directly at them, without notice or contact through the attorneys representing them. The significance of this really cannot be overstated.

Under the U.S. Supreme Court’s ruling in the Montejo case, individuals who are in the unfortunate position of being charged with a crime can no longer be sure that their lawyer will protect them from Government attempts to gain an advantage in the case by trying to peel information out of them just before trial, for example, or at some other critical time in the case. Police can literally show up at that person’s door (or jail cell, as the case may be) and tell him about new developments in his case (whether true or not), question him, suggest that he “cooperate,” or use any other tactics or tools aimed at benefiting the Government’s position on the case. People approached under such circumstances must clearly assert the right to counsel personally under the new U.S. Supreme Court approach and tell police that they do not want to say anything further or answer any questions without their lawyer present. And then they must stop talking. They must do this while alone, isolated, and subjected to the interrogation tactics of police trained at getting people to talk to them. Their lawyer cannot do that for them. This new approach is a shift away from protecting people from the government. It reduces the minimum constitutional protections afforded in this area of law to a new low, giving the government greater leeway to interfere with attorney/client relationships and attempt to obtain incriminating information from people. Of course, this ignores time-honored respect for the role of counsel during this process, a role that not only protects the right of the uninformed and inexperienced individual against a powerful and well-informed adversary, the government, but protects against false or inaccurate evidence resulting from that setting. This decision greatly expands the role of the government at the expense of the individual, and unnecessarily abolishes a system that provided accurate information through fair process, for one that provides any information, whether true or not. In this sense, Montejo represents an act of judicial activism by the U.S. Supreme Court, reversing clear, simple, and highly functional precedent, and moving to a new constitutional position previously unseen in this area of law.

Several challenges to the Montejo ruling have been brought in various state appellate courts, requesting relief from the Montejo decision in favor of citizen rights afforded by state constitutions. The Wisconsin Supreme Court is the only Court to rule in favor of a criminal defendant on this issue thus far. In State vs. Forbush, Mastantuono Law Office successfully argued that our State should not simply follow lock-step with the U.S. Supreme Court on this issue, a move which would have over-turned over 150 years of legal precedent protecting the sanctity of the attorney client privilege in Wisconsin.

Chief Justice Abrahamson, joined by Justice Bradley, agreed with the defense argument that Wisconsin’s long history honoring the right to counsel in criminal justice cases, our state autonomy under principles of federalism, and the right to counsel in the Wisconsin Constitution all favored the Court suppressing the statement and barring the police conduct under Wisconsin constitutional authority. Justices Roggensack and Prosser each wrote separate opinions joining in the result, but not on the basis of state constitutional authority. While the decision is a plurality and lacks a clear majority basing the decision to suppress on the Wisconsin State Constitution, the four plurality justices are clear in their disapproval of the police conduct challenged by the defense in this case.

The decision has implications for prosecutors, police, defense lawyers, and defendants involved in all Wisconsin criminal justice cases, and the relevant issue appears likely to be reviewed in scholarly examination and revisited in future Wisconsin court cases. See, for example,  Wisconsin State Bar review, Wisconsin Law Journal review. Mastantuono Law Office will continue to be a voice in that discussion.