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State v. Erick O. Magett, 2010AP1639-CR, petition for review granted, 3/13/13

Review of unpublished court of appeals decision; case activity

Issues (from the Petition for Review):

1.  Where a defendant has entered a plea of not guilty by reason of mental disease or defect, may a court summarily refuse to hold a jury trial on the defense if it determines that the defendant will not present sufficient evidence to create a jury question?

2. Did the court of appeals err in holding any error harmless where we do not know precisely what Mr. Magett’s testimony would have been because he was not allowed to testify?

The first issue requires elaboration of the holding in State v. Leach, 124 Wis. 2d 648, 370 N.W.2d 240 (1984), that a trial court may direct a verdict against a defendant in the second phase of an NGI trial. Ordinarily, a directed verdict comes after the presentation of evidence by the party with the burden of proof (the defendant in the second phase of an NGI case, Wis. Stat. § 971.15(3)), and that’s what happened in Leach, 124 Wis. 2d at 656-68. The judge in this case, though, didn’t allow Magett to put on evidence in the second phase. Instead, after asking defense counsel what evidence she would put on, the judge “dismissed” the NGI claim because he decided the evidence described by counsel didn’t provide a basis to find Magett had a mental disease or defect. Magett didn’t have an expert to call, but no matter: Leach, 124 Wis. 2d at 666, makes it clear an expert isn’t required; what Leach doesn’t specifically address is the propriety of dismissal before any evidence is presented. This case will settle that question—and may mean NGI cases will see more motions to dismiss or direct a verdict.

The second issue arises because, rather than deciding what is allowed under Leach, the court of appeals assumed the trial court erred and then declared the error harmless. In a way this approach just repeats the trial court’s error of deciding the proposed evidence as described by defense counsel would not have convinced a reasonable jury Magett had a mental disease or defect. It’s not clear whether the supreme court is going to use this case to say something new about the harmless error test or to talk about the propriety of the court of appeals’ assuming error and finding it harmless. Clearly, though, the  primary issue in this case is the propriety of dismissing an NGI without taking any evidence.

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