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State v. Jack M. Suriano, 2015AP959-CR, petition for review granted 9/13/16

Review of an unpublished court of appeals decision; case activity (including briefs)

Issue (composed by On Point)

Did the circuit court err in holding that Suriano forfeited his Sixth Amendment right to counsel after three appointed attorneys withdrew from representing him because the court did not warn Suriano that forfeiture was a possibility and did not advise Suriano of the difficulties and dangers of self-representation?

For a full discussion of the basic facts of the case and the flaws in the court of appeals’ decision, see our prior post. The basic problem is this: forfeiture of counsel is “a drastic remedy,” State v. Coleman, 2002 WI App 100, ¶25, 253 Wis. 2d 693, 644 N.W.2d 283, and a defendant shouldn’t be deemed to have forfeited the right to counsel by conduct without an intent to frustrate the orderly and efficient progress of the case; however, there’s no mandate that the circuit court take specific steps that will establish that intent. In particular, the case law doesn’t require a circuit court to warn a defendant that the consequences of obstructive conduct will be forfeiture of the right to counsel. Instead, prior cases have only “recommended” the circuit court warn the defendant and explain the difficulties and dangers of self-representation. Coleman, 253 Wis. 2d 693, ¶22; State v. Cummings, 199 Wis. 2d 721, 756 n. 18, 546 N.W.2d 406 (1996). A warning is required before a defendant forfeits the right to be present at trial based on disruptive behavior, Illinois v. Allen, 397 U.S. 337, 343 (1970), so it ought to be required before the forfeiture of the right to counsel, which is surely just as important as the right to be present. We’ll see if the supreme court takes this opportunity to mandate the procedure hitherto only “recommended,” and thereby better protect a defendant’s right to counsel.

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