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SCOW: Defendant waived, rather than forfeited, right to be present for trial

State v. Michael L. Washington, 2018 WI 3, 1/9/18, affirming a published court of appeals decision; case activity (including briefs)

The supreme court determines that, despite the absence of any colloquy, a defendant who was not present for his trial waived his statutory right to be there.

As we noted in our prior post on the case:

Michael Washington was set to go on trial for burglary and obstructing an officer. On the morning of the first day of trial, before voir dire, Washington began complaining about his attorney, engaged in a contentious dialogue with the judge, and then “semi was removed and semi left on his own.” Voir dire and trial went on without him; he was occasionally contacted in his jail cell and refused to come back to the courtroom. He was convicted, and on appeal argues that his statutory (as opposed to constitutional) right to presence was violated because the statutory conditions for waiving that right were not met.

Washington has argued throughout the appeal that Wis. Stat. § 971.04 did not permit the trial to go on without him. That statute allows trial in absentia, but only where the defendant “voluntarily absents himself or herself” after “the beginning of trial.” Several cases, including  State v. Dwyer, 181 Wis. 2d 826, 832, 512 N.W.2d 233 (Ct. App. 1994), have held that a jury trial “begins” under this statute at the same time it “begins” for double jeopardy purposes: when the jury is sworn. Since Washington was escorted from the courtroom before voir dire even began, he argues, the statute was not complied with and the trial was unlawful.

The supreme court concludes, as did the court of appeals, that § 971.04 does not govern. It holds that the statute merely provides a mechanism for a defendant to forfeit the statutory right to presence, while Mr. Washington waived his right. It reaches this conclusion despite the lack of any colloquy with Mr. Washington, observing that the trial court found Mr. Washington to be physically threatening and that it repeatedly sent intermediaries to the cell where Mr. Washington was held to explain what was happening and ask whether he wanted to return. The court stresses, however, that the better practice in most cases would be an on-the-record colloquy. (¶¶52-57).

Justice Gableman, joined by Justices Kelly and Rebecca Bradley, concurs, arguing that Wisconsin should abandon its precedent and join various federal circuits in holding that a defendant is present for “the beginning of trial” where he or she is in court on the day voir dire begins, rather than at the swearing of the jury.

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