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Defense win! Denying TPR defendant the right to present his case-in-chief is structural error

State v. C.L.K., 2017AP1413-1414, reversing an unpublished court of appeals opinion; 2/19/19; case activity (including briefs)

The State of Wisconsin petitioned the Milwaukee County Circuit Court to terminate C.L.K.’s parental rights, following which the matter went to trial in due course. After the State rested, the circuit court immediately  decided that Mr. K. was an unfit parent. That is, the circuit court decided the matter before giving Mr. K. an opportunity to present his case. The State concedes this was error, but says it is susceptible to a “harmless-error” review. It is not. We hold that denying a defendant the opportunity to present his case-in-chief is a structural error, the consequence of which is an automatic new trial. Opinion, ¶1.

At the grounds phase for this TPR proceeding, the State called C.L.K. as its sole witness. During direct, cross, and re-direct, he admitted that he hadn’t seen his kids in months and had not been involved in their lives. He said that he did not contact his kids at their foster home because he didn’t have a phone and the social worker told him he was not permitted to contact them, Opinion, ¶¶4-7.

The State rested. Defense counsel asked to put his client on the stand to finish the case but then the GAL moved for and won a directed verdict that C.L.K. was an unfit parent. Later that day the circuit court proceeded to the disposition phase of the trial and terminated C.L.K.’s parental rights. On appeal, the State conceded that the circuit court erred in entering the directed verdict but argued that given all of the evidence against him, the error was harmless.

In a 5-2 opinion, written–colorfully–by Kelly, the majority held that the error was not harmless; it was structural. An error qualifies as harmless when it occurs during the presentation of the case to the jury and can be quantitatively assessed in the context of other evidence.  In contrast, a structural error affects the framework within which the trial proceeds. It permeates the entire process and requires automatic reversal. Opinion, ¶¶14-15 (citing United States v. Gonzales-Lopez, 547 U.S. 140, 148 (2006); Arizona v. Fulminante, 499 U.S. 279, 307-308 (1991); State v. Nelson, 2014 WI 70, ¶ 29, 355 Wis. 2d 722, 849 N.W.2d 317 (among other cases). To get around this distinction, the State noted that the erroneous exclusion of one piece of the defense evidence is a harmless error and argued that the erroneous exclusion of all of the defense’s evidence should be viewed similarly. The majority took State to task:

¶28 The error in this case did not affect just the quantity of evidence presented, such as in Nelson, Kramer, and Crane. It was, instead, an error affecting the adversarial nature of the trial. This matter was presented to the circuit  court according to only the State’s theory of the case. This lack of mutuality made the hearing less like an adversarial contest between the parties and more like a continental-European inquisitorial proceeding. The State might be more likely to see the permeating flaw this introduces into the very framework of the trial if the defense controlled the sequence of the State’s witnesses and their direct examination, or if the State could present its case only through the cross-examination of its own witnesses.

The dissent, written by Roggensack and joined by Ziegler, agreed with the majority that the circuit court erred in “shortening C.L.K.’s presentation at the fact finding hearing.” Dissent, ¶39. (Emphasis supplied). It then presented 15 pages of bad evidence against C.L.K. in order to prove just how harmless the error was. The majority pounced:

The dissent’s approach depends on the belief that a state-centric half-trial in which the defendant was not allowed to present his case-in-chief could not have deprived the court of any instructive information. Based on that assumption, it totted up the information that is in the record and declared it good enough. Nowhere, however, does it explore the actual question presented by this case, to wit, whether the circuit court’s proceedings had enough structural integrity to adduce the information necessary to decide whether Mr. K. was an unfit parent. So the dissent proceeded as if the error was not structural without ever inquiring into whether it actually was. Opinion, ¶32.

Ouch. There are two reasons to read full opinion. First, if you are a defense lawyer working on a “harmless versus structural” error problem, the majority opinion contains significant history and analysis of these doctrines that you may adapt to your case–whether it’s a TPR or a criminal matter. Second, watching Kelly and Roggensack duke it out is, well, highly entertaining. 🙂

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