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State v. Eddie Lee Anthony, 2013AP467, petition for review granted 8/5/14

On review of an unpublished court of appeals decision; case activity

Issue (composed by Anthony’s PFR here ):

May a criminal defendant be stripped of his right to testify pursuant to Illinois v. Allen when his behavior is never so disruptive, obscene, or violent that he must be removed from his trial?

Anthony’s court of appeals briefs presented multiple issues, but his petition for review launches a surgical strike on the defendant’s right to testify at his own trial. See prior On Point post here. A few weeks ago SCOW decided a “right to testify case” called State v. Angelica Nelson (prior post here).  But the Nelson majority assumed, without deciding, that the trial court denied Nelson her constitutional right to testify in her own defense.  The majority then held that a trial court’s erroneous denial of this right is subject to a harmless error analysis and that the error here was harmless.

Anthony’s case is different.  Illinois v. Allen, 397 U.S. 337 (1970) holds that a defendant has the constitutional right to be present at every stage of his trial.  A few courts around the country have used Allen to deny a defendant who is disruptive the right to testify at his own trial.  The issue here is not whether Wisconsin should join their clique. As Anthony’s PFR puts it, the issue is “whether Wisconsin wants to go further than any other court has gone, allowing displeased trial judges to strip away a defendant’s right to testify as a preemptive and protective measure, when the Allen standard for disruptiveness has not even been met.” (PFR at 8).  The PFR surveys state and federal decisions on the circumstances when a trial court may deny a defendant’s right to testify, and it proposes a standard to guide trial courts in future cases.

Shunning this rather sexy legal issue, the court of appeals assumed, without deciding, that the trial court erred and ruled against Anthony based on “harmless error.”  One hopes that SCOW took this case in order to decide the constitutional issue and not to affirm or reverse the court of appeals’ unpublished application of the “harmless error” doctrine to the facts of this case.  But SCOW has dashed similar hopes so many times in the 2013-2104 term that one is not holding one’s breath. That would be most unwise.  Congratulations to Attorney Kim Alderman on getting this petition granted.


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