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State v. Michael L. Washington, 2016AP238-CR, petition for review granted 4/10/17

Review of a published court of appeals decision; case activity (including briefs)

Issue:

Whether a defendant may, by voluntary absence or other conduct, waive the statutory right to be present at trial before the trial has begun?

As explained in our post on the court of appeals decision, Washington complained to the trial court about his lawyer before voir dire began. Then, according to the court, he “semi was removed and semi left on his own.” Voir dire and the trial proceeded without him, and he was  convicted. He argues that the court violated his statutory (not his constitutional) right to be present at trial per §971.04.  The court of appeals held that Washington “made an express, affirmative, intentional choice” to be absent. ¶18.  He allegedly “waived” his statutory right to be present even though the court did not perform the colloquy for a waiver.  In contrast, the defendants in similar, prior cases “forfeited” their statutory right to be present at various proceedings. See State v. Dwyer, 181 Wis. 2d 826, 832, 512 N.W.2d 233 (Ct. App. 1994); State v. Koopmans, 210 Wis. 2d 670, 563 N.W.2d 528 (1997); State v. Miller, 197 Wis. 2d 518, 541 N.W.2d 153 (Ct. App 1995). None of those cases used the terms “forfeit” or “forfeiture,” which means SCOW will once again revisit the difference between waiver and forfeiture.

 

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