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SCOW to review issues relating to line-ups, right to self-representation

State v. Nelson Garcia, Jr., 2016AP1276-CR, petition for review of an unpublished court of appeals decision granted 12/12/18; case activity (including briefs)

Issues (from the petition for review)

  1. Does the Sixth Amendment right to counsel attach upon the finding of probable cause and setting of bail by a court commissioner?
  2. Was the line-up impermissibly suggestive because it violated the Department of Justice’s Model Policy and Procedure for Eyewitness Identification and the viewing witnesses failed to follow the standard instructions given to them?
  3. Can a trial court at a pre-trial hearing decide that a defendant has waived the right to self-representation because the court believes the defendant will engage in disruptive behavior in front of the jury? If so, does the defendant have a right to redeem himself?

Three obviously interesting and important issues. Here’s the salient background on them, starting with the two lineup issues:

Within 48 hours of Garcia’s arrest for bank robbery a court commissioner reviewed a written probable cause statement and found probable cause to detain him for robbery (see Forms CR-215A and CR-215B). The commissioner also set cash bail. A few hours later police conducted an in-person line-up for the two tellers who were eyewitnesses and, after it was run a second time, one positively identified Garcia, while the other was not positive. Garcia didn’t make an initial appearance till three days after he was arrested. (¶¶4-5).

Relying on Rothgery v. Gillespie County, 554 U.S. 191 (2008), Garcia argued his Sixth Amendment right to counsel attached upon the commissioner’s finding of probable cause and setting of bail because that commenced adversary criminal proceedings; therefore, he had a right to counsel at the line-up under United States v. Wade, 388 U.S. 218 (1967), and doing the line-up without providing counsel requires the suppression of the identification evidence. The court of appeals found Rothgery distinguishable because it involved a defendant’s “first appearance” in court (Garcia didn’t do that till after the line-up) and a charging document (not just facts sufficient to continue to detain Garcia for a court appearance). (¶¶20-30).

But Garcia insists, rightly, that it isn’t that simple; at least two federal district courts in Wisconsin (in unpublished opinions) have found our method of probable cause determination commences adversary proceedings and is the point at which the Sixth Amendment attaches. United States v. West, 2009 WL 5217976 (E.D. Wis. Mar. 3, 2009) (Magistrate Judge’s Recommendation regarding Defendant’s Pretrial Motions); United States v. Mitchell, 2015 WL 5513075 (E.D. Wis. Sept. 17, 2015). As West put it:

The process in Milwaukee County may be less formal, and certainly less time consuming than that utilized in Gillespie County, but substantively, the results are the same. A judicial officer reviewed a sworn statement outlining the factual basis for the charges against the arrestee, the judicial officer found probable cause, the judicial officer established bail for the arrestee, and the arrestee was informed of the charges against him. Notably, the Court in Rothgery was careful to avoid creating a rule where a defendant’s constitutional rights varied from jurisdiction to jurisdiction based upon the procedures and sophistication of the participants in the criminal justice system. See id. at [204-05]. A conclusion regarding a defendant’s Sixth Amendment right to counsel based on form, i.e. the physical appearance before a judicial officer, rather than substance, i.e. a judicial officer finding probable cause, fixing bail, and the arrestee being informed of the preliminary charges against him, would lay the groundwork for absurd results that are antithetical to constitutional aims.

West, 2009 WL 5217976, at *9. (Now there’s something we should strive to avoid: “Absurd results antithetical to constitutional aims.”) While federal district court decisions aren’t binding on state courts, State v. Mechtel, 176 Wis. 2d 87, 94-95, 499 N.W.2d 662 (1993), the supreme court will have to resolve the clearly inconsistent applications of Rothgery by our court of appeals and the federal courts.

Regarding the suggestiveness of the lineup, Garcia complains the officer administering the lineup asked the two witnesses before accepting their lineup identification forms if they would like to see the lineup again, something  the Wisconsin DOJ’s Model Policy and Procedure for Eyewitness Identification says should be done only upon request of the witness, never on the suggestion of the lineup administrator. And the witnesses didn’t follow instructions during the first viewing by circling either “yes” or “no” for the person in Garcia’s position in the lineup. The court of appeals held Garcia didn’t meet his burden of showing a likelihood of misidentification under the factors in Neil v. Biggers, 409 U.S. 188, 199-200 (1972). (¶¶32-42). This case gives the court a chance to address the weight to be given to the apparently intentional departure from recommended practices for eyewitness identifications.

Finally, the self-representation issue: Garcia was on his sixth trial lawyer when he sought to proceed pro se. After going through a colloquy with Garcia the circuit court seemed inclined to grant his request, but that suddenly changed when, after the court corrected its initially erroneous advice about the penalty Garcia faced, Garcia didn’t give a crisp yes or no answer to the question of whether that changed his mind and then said he didn’t want to have his most recent lawyer as stand-by counsel. When Garcia persisted in trying to speak, the court cut him off, declared he was so “argumentative” that he’d likely be unable to conduct himself appropriately at trial, and denied him the right to represent himself. (¶¶9-18). The court of appeals found no problem with this hypothesized anticipation Garcia would be disruptive at trial. (¶¶43-49).

As Garcia’s petition notes, Wisconsin’s handling of defendants who want to represent themselves hasn’t fared well in federal court recently. See Imani v. Pollard, 826 F.3d 939 (7th Cir. 2016); Tatum v. Foster, 847 F.3d 459 (7th Cir. 2017); Washington v. Boughton, 884 F.3d 692 (2018). Again, state courts aren’t bound by federal court decisions, even federal circuit courts of appeal, Mechtel, 176 Wis. 2d at 94-95, but three habeas grants on the same issue in three years means its time for the court to revisit whether Wisconsin judges have been properly applying Faretta v. California, 422 U.S. 806 (1975).

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