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Defense win: Circuit court failed to properly exercise discretion in denying defense request for remote testimony

State v. Gregory F. Atwater, 2021 WI App 16; case activity (including briefs)

The circuit court denied Atwater’s request to have trial counsel testify at a Machner hearing by telephone rather than in person, as trial counsel had moved out of state and returning to testify would be onerous and logistically difficult. The court then denied Atwater’s postconviction motion because he couldn’t get trial counsel to the hearing and couldn’t prevail without trial counsel’s testimony. The court of appeals holds the circuit court erroneously exercised its discretion by rejecting Atwater’s request for remote testimony by trial counsel.

Atwater requested trial counsel testify by telephone, citing § 807.13(2), but apparently didn’t suggest that audio-visual means under ch. 885 could be used in the  alternative. (Atwood’s postconviction motion was being litigated in the circuit court in the world before COVID, so the use of audio-visual means wasn’t the first thing everyone would think of when considering alternatives to in-person appearances.) Without addressing the statutory authority Atwater cited, the state objected to having trial counsel testify by telephone, saying that wouldn’t allow the state to use documents to refresh counsels recollection. The circuit court agreed with the state, though without any real elaboration—and without considering the use of audio-visual appearance under ch. 885, given that neither the parties nor the circuit court brought up that possibility. (¶¶3-10).

The state now argues that §§ 885.56 and 885.60, rather than § 807.13(2), govern remote testimony in postconviction proceedings, and the court of appeals agrees. Nothing in § 807.13(2) suggests it applies to criminal cases, while § 885.60(1) specifically applies to “fact-finding” and “post-trial” proceedings in “any criminal case” and refers to the criteria in § 885.56. (¶¶16-22).

Having reached this conclusion, the court then rejects the state’s argument that Atwater can’t appeal the circuit court’s decision regarding remote testimony because § 885.56(2) says the denial of the use of videoconferencing is not appealable. Citing a comment from the supreme court order that promulgated § 885.56, the court agrees with Atwater that § 885.56(2) precludes only interlocutory appeals of orders addressing remote testimony; a defendant may still challenge a denial of the use of remote testimony as part of proceedings leading to a final order being appealed under § 809.30. (¶¶25-28).

Finally, while recognizing the circuit court’s consideration of the issue was “hampered” because no one cited the governing statute, the court of appeals holds the circuit court erroneously exercised its discretion in addressing Atwater’s request for remote testimony by trial counsel:

¶30     Here, the circuit court’s order provides little explanation for its decision. The sole explanation provided is that the court agreed with the State’s objection. And the only concrete objection articulated by the State is a hypothetical one: that the prosecutor might need to use documents to impeach counsel or to refresh her recollection, and if so, it would be challenging to do so effectively over the telephone. Notably, the prosecutor’s concerns may have been resolved by the use of videoconferencing technology, which, as discussed above, is the available means under the applicable statute, Wis. Stat. § 885.60.

¶31     At the same time, however, the parties appeared to have come to a consensus that Atwater’s claim for relief was potentially meritorious, and that Atwater would be entitled to withdraw his plea if his allegations about counsel’s ineffectiveness were true. We do not see any indication in the record that the circuit court considered the reality that, by denying Atwater’s motion, it was effectively foreclosing Atwater’s only option to prove his allegations and obtain relief. The record does not demonstrate whether the court gave any consideration to the fact that trial counsel lived out of state. And, at the time the court denied Atwater’s motion for remote testimony, the court could not have known that trial counsel would offer additional factual support regarding the particular difficulties posed by traveling to Wisconsin. Nor could the court have known that counsel would ultimately decline to appear in person for a Machner hearing. Although these facts are not necessarily dispositive, they were undoubtedly germane to a reasoned, supported determination of whether to permit Atwater’s trial counsel to testify by remote means.

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