On Point

State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate

Issue: The present convictions stemmed from Jorgensen showing up for an otherwise unrelated hearing intoxicated; without objection, the prosecutor obtained admission of that hearing’s transcript, which the trial court read to the jury: is Jorgensen entitled to relief on the ground of violation of right to confrontation, notwithstanding lack of objection?

Holding:

¶34      “‘The Confrontation Clause of the United States and Wisconsin Constitutions guarantee criminal defendants the right to confront witnesses against them.'” State v. Jensen, 2007 WI 26, ¶13, 299 Wis.  2d 267, 727 N.W.2d 518 (citation omitted); see also Crawford v. Washington, 541 U.S. 36, 42 (2004), U.S. Const. amend. VI; ^[10] Wis. Const. art. I, § 7. ^[11] By reading the November 10 hearing transcript at Jorgensen’s criminal trial, which essentially provided the jury with the judge’s and the prosecutor’s conclusions about Jorgensen’s guilt, the circuit court itself seemingly testified against the defendant, and the prosecutor essentially testified against the defendant by virtue of the judge reading the transcript from the November 10 hearing. This highly prejudicial and largely inadmissible evidence was not subject to cross-examination.¶35      Here, the circuit court seemed to testify against the defendant when it stated the following: (1) Jorgensen was having difficulty following simple instructions due to intoxication; and (2) Jorgensen violated the no alcohol provision of his bond. These statements directly related to Jorgensen’s alleged intoxication and the elements of the offenses charged for which Jorgensen was to be presumed innocent. …

¶36      The circuit court’s commentary essentially constituted unsworn testimony against the defendant, and it reached legal conclusions that should otherwise rest solely within the province of the jury. Jorgensen never had the opportunity to question the circuit court’s observations. …

¶37      Also, by virtue of the circuit court reading the November 10 hearing transcript, the prosecutor essentially “testified” against the defendant without being subject to confrontation. …

State v. Donald W. Jorgensen, 2008 WI 60, reversing unpublished decision
For Jorgensen: Martha K. Askins, SPD, Madison Appellate

Issue/Holding:

¶39      Jorgensen’s right to confrontation was also violated during the prosecutor’s closing argument. The prosecutor took what the jury had improperly heard during the trial a step further. She “testified” that Jorgensen was a “chronic alcoholic” who did not acknowledge his problem, that on November 10 she smelled a strong odor of intoxicants from him, and that she knew Jorgensen was drunk that day in court.

State v. David G. Straszkowski, 2008 WI 65, affirming summary order
For Straszkowski Philip J. Brehm

Issue/Holding: The sentencing court may consider uncharged and unproven offenses, ¶36; id n. 20:

State v. Leitner, 2002 WI 77, ¶45, 253 Wis.  2d 449, 646 N.W.2d 341. See also State v. McQuay , 154 Wis. 2d 116, 126, 452 N.W.2d 377 (1990) (“Evidence of unproven offenses involving the defendant may be considered by the court for” the purpose of “determining the character of the defendant and the need for his incarceration and rehabilitation.”); Elias v. State, 93 Wis. 2d 278, 284, 286 N.W.2d 559 (1980) (“[T]he trial court in imposing sentence for one crime can consider other unproven offenses, since those other offenses are evidence of a pattern of behavior which is an index of the defendant’s character, a critical factor in sentencing.”) (citations omitted).

Wright v. Joseph L. Van Patten,552 US 120 (2008)
Prior history: Joseph Van Patten v. Deppisch, 434 F.3d 1038 (7^th Cir. 2006), reinstated, 489 F. 3d 827, 2007, on remand from the Supreme Court for further consideration in light of Carey v. Musladin, 549 U. S. ___ (2006); on habeas review of, unpublished opinion of Wis COAFor Van Patten: Linda T. Coberly

Issue/Holding:

Our precedents do not clearly hold that counsel’s participation by speaker phone should be treated as a ‘complete denial of counsel,’ on par with total absence. … Because our cases give no clear answer to the question presented, let alone one in Van Patten’s favor, “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’ ” Musladin, 549 U. S.,at ___ (slip op., at 6) (quoting 28 U. S. C. §2254(d)(1)). Under the explicit terms of §2254(d)(1), therefore, relief is unauthorized.

The 7th Circuit had held that counsel’s appearance by speaker phone at a plea proceeding was tantamount to denial of counsel, hence was tantamount to denial of counsel altogether. (“Physical presence is necessary not only so that counsel can keep an eye on the client and the prosecutor, but so the court can keep an eye on counsel. … Because the physical absence of counsel from a hearing where a defendant gives up his most valuable constitutional rights and admits his guilt to a serious charge is a structural defect, the district court erred in finding that the error could be analyzed under a harmless standard.”) The Supreme Court reversal of this holding was not on the merits but, rather, on the procedural ground that in the absence of controlling authority by the Court on this precise issue a habeas court lacks authority to review it. Van Patten, then, and anyone else who has litigated and lost a state court appeal on this issue is simply out of luck. Future litigants, though, are something else, though plainly the thrust must now be on state litigation rather than federal review.

Van Patten’s state court appellate opinion held that remote appearance by counsel at a guilty plea proceeding violated § 967.08, but was harmless error. However, the decision wasn’t published, and therefore isn’t binding. Net outcome: the issue will have to be raised in state court (on direct appeal, most likely) and if relief is denied the remedy will be limited to certiorari to the Supreme Court. You’re starting out, then, with an audience presumably receptive to condemning this process as erroneous. Perhaps in the individual case there may be some basis for assigning fact-specific harm. And, if nothing else, the purely legal question of whether counsel’s “remote” appearance isn’t susceptible to harmless error analysis because it is a “structural” defect will always be present. Again: the state court opinion isn’t binding on this point. The argument might be a tough sell, to be sure, although the 7th Circuit opinion – reversed only on the procedural ground discussed above – can be cited for at least persuasive effect. At a minimum, given the court of appeals’ apparent inclination (albeit in non-precedential form) to regard counsel’s remote appearance as error, counsel might be well-advised to avoid making a “remote” appearance.

State v. Pablo Ruiz-Velez, 2008 WI App 169
For Ruiz-Velez: Melnda A. Swartz, SPD, Milwaukee Appellate

Issue: Whether audiovisual recordings of statements made by alleged victims and admitted into evidence under § 908.08(1) must be transcribed by the official court reporter.

Holding:

¶4        Wisconsin Stat. Rule 885.42(4) provides: “At trial, videotape depositions and other testimony presented by videotape shall be reported.” As we have seen, the postconviction circuit court determined that this Rule did not apply because the recordings were received as “exhibits” and were not “sworn testimony.” ^[3] We disagree.

¶5        The recorded “oral statement of a child who is available to testify,” made admissible by Wis. Stat. Rule 908.08, is the testimony of that child, supplemented by in-court testimony as provided for by Rule 908.08(5), irrespective of whether that “oral statement” is “sworn.” … See also State v. Anderson, 2006 WI 77, ¶103, 291 Wis. 2d 673, 720, 717 N.W.2d 74, 98 (Statements made and admitted under Rule 908.08 have “the effect of a direct examination.”) (“[T]he videotape [admitted under Rule 908.08] was the testimony of a single witness.”). …

¶6        Significantly, and reinforcing our analysis, SCR 71.01(2) requires that “[ a] ll proceedings in the circuit court shall be reported,” with exceptions not material. ^[6]  (Emphasis added.) “‘Reporting’ means making a verbatim record.” SCR 71.01(1). Supreme Court Rule 71.01(2)’s all-encompassing command ends our analysis.  The postconviction circuit court erred in denying Ruiz-Velez’s motion to have the official court reporter transcribe the audiovisual recordings received into evidence under Wis. Stat. Rule 908.08. We reverse and remand with directions that the recordings be transcribed by the official court reporter.

Walworth Co. DHHS v. Andrea L.O., 2008 WI 46, on Certification

TPR – Elements, Ground of Continuing Need of Protection and Services, Generally

Issue/Holding:

¶6 There are four elements to this ground for termination. First, the child must have been placed out of the home for a cumulative total of more than six months pursuant to court orders containing the termination of parental rights notice. Second, the County Department of Social Services must have made a reasonable effort to provide services ordered by the court. Third, the parent must fail to meet the conditions established in the order for the safe return of the child to the parent’s home. Fourth, there must be a substantial likelihood that the parent will not meet the conditions of safe return of the child within the 12-month period following the conclusion of the termination hearing. [3]

TPR – Stipulation to Element: Does Not Amount to Withdrawal of Jury Demand, Where Jury Instructed on That Element

Issue/Holding: Stipulation to a TPR elements did not constitute withdrawal of the demand for a jury trial, where the element was submitted to, and found by, the jury under the instructions and special verdict form, ¶¶18-24.

The court approvingly analogizes to State v. Charles J. Benoit, 229 Wis.2d 630, 600 N.W.2d 193 (Ct. App. 1999) (stipulation to burglary element of nonconsent didn’t amount to waiver of right to jury determination of the element where jury instructed to accept any stipulation as conclusively proven, but also instructed that guilt required finding nonconsent beyond a reasonable doubt).

TPR – Stipulation to Element: Does Not Amount to Withdrawal of Jury Demand, Personal Colloquy with Parent not Required (Under Specific Facts of Case)

Issue: Whether stipulation to a TPR element amounted to withdrawal of jury demand such that personal colloquy with the parent was necessary to effectuate the stipulation.

Holding:

¶34 Although N.E. and S.B. concern withdrawal of the demand for a jury trial, they are distinguishable from the facts presented here. In each of those cases, a party’s attorney withdrew a prior demand for a jury trial while the defendant was not present. In N.E., the attorney did not consult with the juvenile before withdrawing the demand, and in S.B., the attorney withdrew the demand without S.B.’s knowledge or consent. Here, however, the stipulation between the parties took place in Andrea’s presence. Moreover, Andrea’s attorney asked her in open court whether she understood the issue and whether she was willing to stipulate that Junior was adjudged in need of protection or services and that he had been placed out of her home for six months or more. Andrea answered yes.

¶35 A second important difference between the present case and N.E. and S.B. is that this case does not involve a complete withdrawal of the demand for a jury trial. The parties agreed to stipulate to one element of the ground for termination, but the demand for a jury trial on the other three elements was unaffected. Importantly, Andrea’s focus in the case was not on the first element. Her attorney admitted that the first element was “not seriously in dispute.” Rather, he explained that the focus was on the fourth element, that is, whether there was a substantial likelihood that Andrea would not meet the conditions for return within a year. In contrast, N.E. and S.B. involved the withdrawal of the demand for a jury trial on all elements, rather than a stipulation regarding a single element that was not in dispute.

The court also stresses, ¶¶34-41, that the stipulation was not only on an uncontested point but a “paper ground,” that is, “expressly provable by official documentary evidence.” The court rejects any suggestion, though, that the holding “allows circuit courts to decide paper elements that go to a jury independent of a stipulation,” ¶41 n. 6. When all is said and done, the following factors seem to inform the result: the stipulation addressed a “paper element,” ¶46; TPRs being civil, the right to jury is purely statutory, ¶ 47; any error in removing the element form jury consideration would have been harmless, ¶48; in any event, the element in question was submitted to the jury, ¶53. The case, then, appears to be fact-specific, as the court indeed suggests:

¶51 We do not decide, however, the effect of Villareal and Hauk beyond the facts presented here. Thus, we do not address how courts should use criminal cases involving stipulations to shape decisions concerning stipulations in TPR proceedings.

…

¶55 Nonetheless, while we do not require it, we urge that circuit courts in TPR proceedings consider personally engaging the parent in a colloquy explaining that a stipulation to an element withdraws that element from the jury’s consideration and determining that the withdrawal of that element from the jury is knowing and voluntary. Although no personal colloquy is required here because Andrea received a jury trial, we have not addressed whether it would be required in other contexts.

¶56 Termination of parental rights proceedings are “among the most severe forms of state action” that involve the “‘awesome authority of the State to destroy permanently all legal recognition.'” Evelyn C.R. v. Tykila S., 2001 WI 110, ¶20, 246 Wis. 2d 1, 629 N.W.2d 768 (quoting M.L.B. v. S.L.J., 519 U.S. 102, 127-28 (1996). We have previously determined that such proceedings may “require heightened legal safeguards against erroneous decisions.” Oneida County Dep’t of Soc. Servs. v. Nicole W., 2007 WI 30, ¶32, 299 Wis. 2d 637, 728 N.W.2d 652 (quoting Evelyn C.R., 246 Wis. 2d 1, ¶21)).

The court thus explicitly declines to address the “broad question posed by the court of appeals” in its certification request, which is as follows (¶¶27-28): <“Does the rationale and holding of N.E. v. DHSS, a juvenile case arising out of Wis. Stat. ch. 48 (2003-04), govern a termination of parental rights (TPR) case such that a parent must personally withdraw his or her prior demand for a jury trial?”

Waukesha Co. DHHS v. Teodoro E., 2008 WI App 16, District 2 (published)

Issue/Holding: A deported father’s participation in the TPR proceeding by a webcam system was “meaningful,” given that he could see and hear witnesses, be seen by the court, and communicate privately with counsel and with aid of an interpreter, ¶¶10-19.

State v. Lavelle W., 2005 WI App 266 (telephone hookup not functional equivalent of personal presence, therefore participation by phone not meaningful), distinguished:

¶15 Further, the system that the trial court used here is plainly and significantly different from the simple telephone setup at issue in Lavelle W. One obvious distinction is that Teodoro was able to see both the witness and a wider view of the entire courtroom. Further, Teodoro’s attorney was able to communicate with him privately which, as we noted in Lavelle W., is a key component of meaningful participation. Lavelle W., 288 Wis. 2d 504, ¶8. In fact, in Rhonda R.D., a case unacknowledged by Teodoro, we held that a telephone setup that allowed the parent to consult privately with his lawyer afforded the parent meaningful participation in the termination proceedings. Rhonda, 191 Wis. 2d at 701-03.

¶16 … If the circuit court had insisted on Teodoro’s physical presence, which was apparently impossible, there is no telling how long things would have continued in the posture that they were in: Teodoro in Mexico and the children in foster care and in legal limbo, their future unknown. This would have been grossly unfair to the children, as well as contrary to the legislative directive that TPR cases proceed in a timely fashion. See Rhonda R.D., 191 Wis. 2d at 698-99.

Joseph Van Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006), reinstated, Van Patten v. Endicott, 489 F.3d 827 (7th Cir. 2007) (counsel’s remote appearance by phone at defendant’s guilty plea proceeding amounted to denial of counsel altogether) also distinguished:

¶19 Just as with Lavelle W., the procedures adopted by the circuit court in this case distinguish it from Deppisch. The record shows that Teodoro could consult privately with his attorney. Moreover, his attorney was physically present in the courtroom. Thus, unlike in Deppisch, there was nothing preventing the court from keeping an eye on either Teodoro or his counsel. [4] We reject Teodoro’s ineffective assistance argument.

Think this case won’t be cited in future criminal cases where the defendant must make a “remote” appearance? Or that local facilities won’t eventually go to webcam instead of phone hookups?