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 of that right. Also, the erroneous denial of the right to testify is subject to a harmless error analysis–even where the record shows the defendant would testify to both relevant and irrelevant matters.
This is a 1st-degree homicide case, and Anthony, who is African-American, claimed self-defense. He wanted the jury to know that Milwaukee is one of the most racist cities in the country and that in 1966 he had been wrongfully convicted based on his race. The trial judge deemed this evidence irrelevant and repeatedly explained why he would not let it in. “With each explanation, Anthony became more agitated, to the point where additional sheriff’s deputies were called into the courtroom (a total of eight were present).” Slip op. ¶5. Ultimately, the judge held that Anthony had forfeited his right to testify. This occurred before Anthony ever took the stand and before he actually became disruptive. His lawyer objected and explained what Anthony would say to show that he killed the victim in self-defense. Slip op. ¶31.
A defendant may, of course, “waive” his right to testify, but this case holds that he may also forfeit it if it seems likely he will engage in disruptive conduct. Slip op. ¶56. SCOW predicts that SCOTUS will agree on this point based on Illinois v. Allen, 397 U.S. 337 (1970), which holds that a criminal defendant may forfeit his right to be present at trial by misbehaving. Slip op. ¶60.
Waiver is the intentional relinquishment of a known right. State v. Soto, 2012 WI 93, ¶37, 343 Wis. 2d 43, 817 N.W.2d 848. Forfeiture, in contrast, involves either failing to assert a right or doing something incompatible with the assertion of the right. State v. Vaughn, 2012 WI App 129, 344 Wis. 2d 764, 823 N.W.2d 543.
Here, Anthony allegedly forfeited his right to testify based for 2 reasons. According to SCOW:
It is clear from our review of the record that Anthony’s proposed testimony likely would have confused or misled the jury, thereby presenting an obstacle to the ascertainment of truth. As the circuit court acknowledged, the jury had “a difficult decision to make,” and irrelevant matters such as Anthony’s alleged wrongful conviction; Anthony’s status as an African-American male; Anthony’s religious beliefs; and Anthony’s memories “all the way back to when [he] was five years old” would not have helped the jury make its decision. Slip op. ¶77.
The circuit court observed that Anthony was “quite animated” when insisting to testify to irrelevant matters, i.e., he was “speaking very forcefully” with “a good deal of anger in his voice.” The circuit court noted how “enraged” and “tensely coiled” Anthony became and “how close he seemed to a breaking point.” Based on Anthony’s demeanor, the circuit court expressed concern that Anthony would cause “a ruckus on the stand” and pose a threat to the security of the jury. Slip op. ¶81.
Postconviction, Anthony argued that the court should have considered less drastic measures, like allowing him to testify and then instructing the jury to ignore the irrelevant parts. But the circuit court held, and SCOW agreed, that the instruction could have provoked an outburst from Anthony. It was thus better to prohibit him from testifying at all. Slip op. ¶89.
No doubt SCOW felt comfortable denying Anthony the right to testify altogether (thus excluding all evidence of self-defense) because it was pretty convinced of his guilt. Following State v. Nelson, 2014 WI 70, 355 Wis. 2d 722, 849 N.W.2d 317, it reconfirmed that a trial court’s violation of a defendant’s right to testify is not structural error. It is subject to a harmless error analysis–even where the defendant plans to testify that he acted in self-defense and no other witness can provide that testimony. Why? According to SCOW:
[T]he evidence of Anthony’s guilt was substantial. The majority of evidence presented at trial contradicted Anthony’s self-defense theory, thereby contributing to the overall strength of the State’s case. The gruesome nature and extent of S.J.’s injuries completely undermine Anthony’s claim of self-defense. Moreover, at least three witnesses testified that Anthony threatened to kill S.J. with an ice pick, either on the day in question or two days earlier. In addition, one witness testified that Anthony admitted to stabbing S.J. “forty to fifty times” because he thought S.J. was cheating on him, not because he was acting in self-defense. The evidence also showed that S.J. was a sickly woman who suffered from rheumatoid arthritis, particularly in the hands, and that she was likely incapable of holding a knife. Slip op¶89.
Nelson filed a petition for writ of certiorari on the issue of whether the complete denial of the right to testify is structural error or subject to a harmless error analysis. The petition is pending in SCOTUS. You can see it here.