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Right to be present at trial waived

State v. Michael L. Washington, 2017 WI App 6, petition for review granted 4/10/17, affirmed, 2018 WI 3; case activity (including briefs)

Michael Washington was set to go on trial for burglary and obstructing an officer. On the morning of the first day of trial, before voir dire, Washington began complaining about his attorney, engaged in a contentious dialogue with the judge, and then “semi was removed and semi left on his own.” Voir dire and trial went on without him; he was occasionally contacted in his jail cell and refused to come back to the courtroom. He was convicted, and on appeal argues that his statutory (as opposed to constitutional) right to presence was violated because the statutory conditions for waiving that right were not met.

The statute at issue is Wis. Stat. § 971.04. Paras. (1)(b) & (c) provide that a defendant “shall be present” at trial and voir dire. Subs. (3) provides an exception to this rule: “[i]f the defendant is present at the beginning of the trial and thereafter, during the progress of the trial or before the verdict of the jury has been returned into court, voluntarily absents himself or herself from the presence of the court without leave of the court,” then the trial may go on.

Washington relies principally on State v. Dwyer, 181 Wis. 2d 826, 832, 512 N.W.2d 233 (Ct. App. 1994), in which the defendant complained to the trial court during voir dire that she was unhappy with her lawyer and wanted time to hire a different one. The trial court denied her request and, after a brief recess, the defendant did not return. Voir dire was completed and the trial was held in her absence.

The court of appeals reversed, noting that § 971.04 permits trial in absentia only where the “defendant is present at the beginning of trial” and then “voluntarily absents himself or herself.” The court held that “beginning of trial” means the moment when the jury is sworn; since Dwyer departed before this occurred, her voluntary absence did not satisfy the statutory exception and a new trial was required. Dwyer, 181 Wis. 2d at 836-37. Washington argues that because he too left the courtroom before trial (and indeed before voir dire), the same rule applies.

The court of appeals responds as follows:

Dwyer is distinguished by the fact that Dwyer’s act of leaving was a forfeiture rather than a waiver of her right to be present. Dwyer did not make an affirmative intentional and voluntary relinquishment of her right to be present at trial; she engaged in avoidance, whereas Washington made an express, affirmative, intentional choice not to be present. Washington waived rather than forfeited his constitutional and statutory rights under WIS. STAT. § 971.04.


Perhaps the fact of Mr. Washington’s communications from jail is a fair distinction from Dwyer–though this sort of verbal “waiver” can be unfavorably compared with the sort of thorough colloquy the supreme court sanctioned in State v. Soto, 2012 WI 93, 343 Wis. 2d 43, 817 N.W.2d 848. It is a stretch, however, to call the absence in Dwyer a “forfeiture” rather than a “waiver.” The court here recites the usual formulation: “Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.”  State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612. The defendant in Dwyer left of her own accord; moreover the statute plainly contemplates “voluntary” absence. Further, the Dwyer opinion (like the other cases the court of appeals deems “forfeiture” cases in a footnote) uses the term “waiver,” not “forfeiture,” to describe the defendants’ absences.

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