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23. Structural error

McCoy v. Louisiana, USSC No. 16 – 8255, 2018 WL 218-617, 5/14/18, reversing and remanding State v. McCoy, 2018 So.3d 535 (La. 2016); SCOTUSblog page (includes links to briefs and commentary). In a 6-3 opinion written by Justice Ginsburg, SCOTUS holds that the Sixth Amendment guarantees a defendant the right to choose the objective of his… Read More

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This new law review article by Daniel Epps examine the subject in depth. Consider this excerpt from the abstract: Judges and commentators sharply disagree about which (and even whether) constitutional errors can be harmless, how to conduct harmless-error when it  analysis applies, and, most fundamentally, what harmless constitutional error even is-what source of law generates… Read More

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State v. C.L.K., 2017AP1414, petition for review of an unpublished court of appeals opinion granted 3/14/18; case activity Issues: 1. Where, during the grounds phase of a TPR trial, the circuit court errs by directing a verdict in favor of the State without giving the respondent an opportunity to present evidence, has the court committed… Read More

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SCOTUS delves into structural error

Weaver v. Massachusetts, USSC No. 16-240, 2017 WL 2674153 (June 22, 2017); affirming Commonwealth v. Weaver, 54 N.E.3d 495 (Mass. 2016); Scotusblog page (including links to briefs and commentary) Members of the public–specifically, Kentel Weaver’s family–were excluded from the overcrowded courtroom during jury selection for his trial. Violations of the Sixth Amendment right to public… Read More

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Question presented: Whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel’s ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits… Read More

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How to beat the “harmless error” rap

For the 2015 SPD conference, Judge Sankovitz and Attorneys Rob Henak and Melinda Swartz prepared an excellent outline on a problem that plagues many defense lawyers on appeal.  They have a great issue. They win it, but then the court of appeals or supreme court finds the error harmless.  This detailed, well-researched outline walks you… Read More

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State v. Eddie Lee Anthony, 2015 WI 20, affirming unpublished COA decision; click here for docket and briefs Resolving an issue of first impression, SCOW has decided that a defendant may forfeit his constitutional right to testify by stating an intent to bring up irrelevant matters or by engaging in conduct incompatible with the assertion… Read More

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State v. Angelica Nelson, 2014 WI 70, 7/16/14, affirming an unpublished per curiam court of appeals decision; majority decision by Justice Roggensack; case activity Nelson wanted to testify at her trial on child sexual assault charges, but after a colloquy with her about waiving her right to remain silent the trial judge wouldn’t let her because he… Read More

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