Right to Testify
The trial court held that Anthony, charged with first degree intentional homicide, forfeited his right to testify based on Anthony’s “incessant” refusal to accept the trial court’s ruling that he was to answer “two” if asked about the number of his prior convictions and Anthony’s physical agitation and irrelevant rants. (¶¶5-6, 9, 14). While noting that a defendant may forfeit fundamental rights because of his conduct, the court of appeals doesn’t decide whether Anthony forfeited his right to testify. (¶16). Instead, the court holds that even if the trial court should have permitted Anthony to testify, the court’s refusal to do so was harmless. After the court precluded Anthony from taking the stand his lawyer provided an offer of proof that Anthony acted in self-defense, but the state’s evidence detailing the victim’s physical condition prior to the stabbing, the autopsy results, and Anthony’s behavior before and after the stabbing constituted “an overwhelming amount of evidence would have undermined [Anthony’s] theory” even if he had testified about his self-defense claim. (¶¶18-24).
As a matter of general principle it may be unobjectionable that, under certain circumstance, a defendant could forfeit the right to testify. The almost complete lack of case law on the issue, however, makes it unclear what those circumstances are and what trial judges must do when faced with the issue. Compare the case law developed regarding forfeiture of the right to counsel, e.g., State v. Cummings, 199 Wis. 2d 721, 752-53, 756-57, 546 N.W.2d 406 (1996); State v. Coleman, 2002 WI App 100, ¶¶22, 34, 253 Wis. 2d 693, 644 N.W.2d 283, which might in fact offer some guidance in this situation.
As to whether denial of the right to testify can be harmless, or whether the error is structural, that very issue is now pending in the Wisconsin Supreme Court in State v. Angelica Nelson, 2012AP2140-CR. For more on the topic see our post on the grant of review here. (UPDATE 7/17/14: The supreme court held the error is not structural; our discussion is here.)
Applying the three-part, burden shifting test for Batson claims, see State v. Lamon, 2003 WI 78, ¶28, 262 Wis. 2d 747, 664 N.W.2d 607, the court of appeals rejects Anthony’s claim that the prosecutor’s strike of the only African-American male on the jury was discriminatory because it was based on the juror’s religion. Assuming that Batson‘s analysis applies to peremptory strikes based on religion, the circuit court properly found the prosecutor offered a non-discriminatory reason for striking the juror:
¶29 Anthony correctly notes that courts around the country are divided over whether Batson may be expanded to prevent the use of juror strikes on the basis of religion. However, this is a question that we need not address because the trial court thoroughly explained that Juror Number 34 was not struck because of the faith he practiced—something the record is silent about—but rather, because Juror Number 34’s occupation required him to apply his faith to his daily interactions, decisions, and activities. Thus, the trial court reasoned, there existed a significant possibility that Juror Number 34 would rely more on his faith than on the evidence in deciding this case. As such, we conclude that the trial court did not erroneously exercise its discretion.
For more on the split regarding the application of Batson to religion, see 6 LaFave, et al., Criminal Procedure § 22.3(d) at nn. 198 & 199 (3rd ed. 2007) (“…the better view ban[s] challenges based on membership alone but allow[s] challenges based on activities or articulated beliefs.”).