Craig Mastantuono also had an opportunity to practice his amateur photography skills on the art deco details of the Sheboygan County Courthouse, which you can see here.

Jury returns not guilty verdict in sexual assault case

A 51-year-old Whitefish Bay businessman accused of attempting to rape a teenage babysitter four years ago was found not guilty by a jury late Tuesday.

Brad Forbush was arrested in Michigan shortly after the May 2008 incident at his Town of Holland vacation home, and a series of appeals culminated this week in a two-day trial that included testimony from Forbush and the alleged victim, who is now 22. He had been charged with attempted second-degree sexual assault and false imprisonment.

The jury deliberated four hours before returning the verdicts, court records show.

Prosecutors said Forbush invited the woman into his home under the auspice of showing her a video of his triplets. He then showed the woman a pornographic DVD instead and told her that’s what they were going to do, a criminal complaint said.

Forbush blocked the woman’s path to the door when she refused, but she was able to drag him outside and escape after a struggle, the complaint said.

But Forbush testified at trial that the wrong DVD was played inadvertently and that he never mentioned sex, according to his attorney, Craig Mastantuono said. Forbush grabbed the woman because she was leaving and he wanted to explain himself, the attorney said.

“The jury found him not guilty because they didn’t think that amounted to false imprisonment,” Mastantuono said. “They got to gauge the testimony of both Mr. Forbush and (the victim).

He said the jury decided “what we can reasonably surmise happened from the testimony is not what the prosecution said it is.”

The case went to trial after a lengthy series of appeals culminated in the Wisconsin Supreme Court ruling that statements Forbush made to a detective after his arrest could not be introduced at trial. A Court of Appeals opinion said Forbush admitted in that interview that he suggested sexual intercourse and attempting to restrain the woman, but Mastantuono said Forbush never admitted suggesting sex.

“It was not what you would characterize as a classic confession,” Mastantuono said.

During the interview — which took place May 16, 2008, after Forbush was brought back from Michigan — Forbush gave a verbal and written waiver of his right to have an attorney present. But Forbush had been represented by an attorney while making a court appearance in Michigan days before, and he argued that should make his later waiver invalid.

Judge Terence Bourke, who oversaw the trial, ruled in November 2008 that the statements were not admissible. The Wisconsin Court of Appeals District II in Waukesha reversed Bourke’s ruling in December 2009, but the Wisconsin Supreme Court — in a 4-3 decision — sided with Bourke in April 2011.

Mastantuono noted that the final ruling still would have allowed the prosecution to introduce Forbush’s May 16, 2008, statement at trial if Forbush’s testimony contradicted statements to investigators, but that did not occur.

Our office has extensive experience with clients who have gun-related legal problems. Most recently, Attorney Craig Mastantuono was asked by the NRA Institute for Legislative Action to speak as a guest at the NRA’s 2011 “Firearms Law & The Second Amendment Symposium” on October 15th, 2011 in San Diego, California. Attorney Mastantuono addressed the symposium attendees and was a panel member regarding police/citizen encounters and investigative stops in situations where a firearm may be present. His remarks also included reference to this office’s prior representation of a pizza delivery driver who successfully defended himself with a firearm against armed robbers, only to be subject to criminal prosecution for CCW and seizure of his weapon. Mastantuono Law Office successfully got the criminal charge dismissed and obtained a court order for return of his firearms.

At Mastantuono Law Office, we have received many inquiries from those who wish to avail themselves of the license privilege effective November 1st, and would like to also have a relationship with an attorney in case difficulties arise.  We have also learned that some training courses are advising attendees to have an attorney’s contact information with them for the same reason. Our attorneys are available 24 hours a day in case of an emergency. Our office voice mail provides an emergency number for use after hours if the situation requires immediate attention.

Will Missing Video Leave Justice Blind by Darryl Enriquez, The Freeman (5/25/11)

Police Chief Releases Report on Deleted Video by Sarah Pryor, The Freeman (7/22/11)

Police Chief Responds to Column in Freeman by (Chief) Russell P. Jack, Opinion (7/22/11)

Letter to the Editor: Witness to Incident Says Police Never Talked to Her by Christine McLaughlin, Opinion (7/23/11)

Chief’s Response Leaves Once Feeling Blue by Darryl Enriquez, The Freeman (7/27/11)

Mark Belling Opinion, The Freeman (7/27/11)

In Wisconsin, individuals who are subject to a domestic abuse civil injunction automatically lose their constitutional right to possess a firearm, under any circumstances, for any reason. A domestic abuse injunction is granted if a Court finds “reasonable grounds to believe” that the respondent has engaged in, or may engage in, domestic abuse of the petitioner. If a court grants the injunction, the statute automatically requires a respondent to surrender any firearms. This automatic ban does not contain any exceptions, other than for law enforcement officials, including no exceptions allowing an individual to possess a firearm for protection or self-defense in his or her home. The statute also does not make available any argument by a respondent, or finding by a court official, that the particular individual should not be subject to the automatic prohibition. Mastantuono Law Office has argued that this automatic ban of a fundamental constitutional right following a civil proceeding, violates our client’s right under the U.S. and Wisconsin Constitutions to keep and bear arms for self-defense and protection, a right recently re-affirmed by the United States Supreme Court in District of Columbia v. Heller, 128 S. Ct. 2783 (2008).

The case is currently pending before the trial court in Milwaukee. This blog will be updated with the result of the case.

In the days leading up to the decision hearing on June 3rd, 2011, Darryl Enriquez of the Waukesha Freeman wrote an editorial piece describing the unique situation and fate of the video evidence, which is available here. Given columnist Enriquez’ headline question, our answer to his query would be: “No.”

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.