SCOW relies on deferential standard of review to reject allegation that Zoom procedure violated defendant’s due process rights

State v. Kordell Grady, 2025 WI 22, 6/13/25, affirming COA’s summary disposition order; case activity

Although SCOW presumably took this case to clarify the rules of Zoom court–and the oral argument focused intensely on such questions–SCOW ultimately opts to issue a decision which makes no substantive law and denies relief based on what it claims is a deferential review of the circuit court’s factual findings.

Following his plea and sentencing, Grady appeared via Zoom for a restitution hearing, at which the only contested issue was his ability to pay. (¶8). This was the first time he had ever appeared on Zoom during the lifespan of the case. (¶39). He was the only participant appearing virtually. (Id.). At one point, Grady interrupted the proceedings. (¶9). The circuit court asked him if he wanted to speak with his lawyer, and Grady answered in the affirmative. (Id.). The court then went “off the record.” (Id.). When the parties reconvened, the district attorney referenced statements made by Grady while speaking to his lawyer, which were prejudicial to his ability to pay argument. (Id.). The court clarified that Grady’s communication with his lawyer occurred in open court and that while everyone could hear him–and apparently no steps were taken to ensure a confidential line of communication–it had warned Grady (at some unknown point in the off the record exchange) that he could be overheard. (Id.).

Grady filed a postconviction motion, asserting that the circuit court’s failure to facilitate a truly confidential line of communication–and to allow the State to not only listen in, but to use his comments to counsel against him–violated his due process rights.  (¶10). The circuit disagreed, and concluded that Grady did not intend for his communications with counsel to be confidential because “Grady must have recognized that when he spoke over Zoom, his voice would be broadcast to the entire courtroom.” (¶12).

While SCOW outlines the contours of Grady’s due process claim in a summary of his arguments to the Court, resolution of this case is actually straightforward for SCOW and requires only a few paragraphs of analysis. In the Court’s view, the circuit court’s finding that Grady did not intend for his “off the record” conversation with his lawyer to be confidential is a factual finding and Grady has not proven that factual finding is clearly erroneous. (¶22). The Court flatly rejects any reliance on the fact that Grady’s conversation occurred after the circuit court told him it was going “off the record,” as in SCOW’s view, courts “go on and off the record for a variety of reasons.”  (¶23).

And. while Grady also presented another issue for review–whether it was appropriate for an insurer to be reimbursed for their insured’s deductible in a restitution proceeding where the insured has not requested restitution–that issue is disposed of summarily in a single footnote and COA’s order affirmed. (¶19 n.5).

Justices Dallet and Ann Walsh Bradley concur, explaining that they agree with the majority’s conclusion that Grady is not entitled to relief under the standard of review. (¶26). However, they write separately to set forth “best practices” that should have been followed in this case. (Id.).

First, the concurrence faults the circuit court for not doing “enough to ensure that Grady could speak with his attorney privately.” (¶27). The circuit court “did not explain to Grady at the start of the hearing that he could communicate with his attorney privately or how that would happen.” (Id.). Although the concurrence credits the court for going off the record in response to Grady’s request (and, despite concurring in a result based on a finding that Grady did not intend for his statements to be confidential nonetheless observes that Grady could have “understood that to mean that his statements would be treated as confidential”), it faults the court for not pausing the proceedings to implement a better solution once Grady began making “obviously” prejudicial comments. (Id.). It also faults defense counsel for not proactively protecting Grady’s right to confer confidentially and, in a glancing aside coupled with a citation to the ethical rules, also dings the prosecutor for both standing by and then using the situation to his advantage later in the hearing. (¶28).

The concurrence outlines the following best practices that should therefore be implemented moving forward:

In order to prevent a situation like this from happening again, the following are a few straightforward best practices designed to ensure that parties in remote or partially remote proceedings are given the opportunity to communicate with counsel privately. In criminal cases and some other matters, the statutes already require that “a separate private voice communication facility shall be available so that the defendant or respondent and his or her attorney are able to communicate privately during the entire proceeding.” WIS. STAT. § 855.54(1)(g). The same can and should be done for any other type of case. But even where private avenues of communication are available, circuit courts cannot assume that a party or even their attorney knows how to use them. Thus, circuit courts should be proactive and state on the record at the beginning of a proceeding that a means of private communication with counsel is available and explain how such communication would occur. If a party does avail themselves of that option, the circuit court should assume that the communication is meant to be private unless told otherwise. Finally, during longer proceedings such as evidentiary hearings or trials, circuit courts should periodically inquire about whether parties need a chance to consult with their attorneys privately. See, e.g., Vazquez Diaz v. Commonwealth, 167 N.E.3d 822, 842 (Mass. 2021); see also WIS. STAT. § 885.60 (allowing for proceedings to be held remotely or partially remotely pursuant to the procedures set forth in that statute).

(¶29).

Justice Protasiewicz is the only dissenting justice. She points out that the statutes already require the circuit court to provide a confidential line of communication for parties appearing remotely, a statutory mandate which was not followed in this case. (¶34). It also failed to adequately advise Grady, who was mentally ill, as to how Zoom court would work and that he would be afforded a confidential line of communication if he needed to speak with his lawyer. (¶36). Because the court failed to protect Grady’s ability to confidentially consult with his lawyer, and because that violation harmed his property interests (the disputed restitution), Justice Protasiewicz would find a due process violation in this case. (¶73). She also disagrees with the majority’s holding that Grady did not intend his communications to be confidential, as the everyday understanding of going “off the record” conveys that the statements made “off the record” are, in fact, confidential. (¶69).