On Point

Review of unpublished per curiam court of appeals decision; case activity

Issue (composed by On Point)

Does harmless error analysis apply when a trial judge erroneously denies a defendant the right to testify in her own defense?

Nelson wanted to testify in her child sexual assault trial, and the court engaged in a colloquy with her about waiving her right to remain silent, see State v. Denson, 2011 WI 70, 335 Wis. 2d 681, 779 N.W.2d 531 (recommending, but not requiring, a colloquy with a defendant who has decided to testify). During the colloquy the court asked what she would say on the stand. Nelson said she wouldn’t deny having sexual intercourse with the child or dispute the child’s age, but she insisted she wanted her side to be heard, essentially because she disputed details of the child’s versions of events. (¶2). The judge prohibited her from testifying, concluding it would be against counsel’s advice and was “completely irrelevant” to the elements the State had to prove. (¶3).

In the court of appeals the state did not defend the judge’s decision (though didn’t concede error, either) but simply argued that any error was harmless. Nelson essentially argued the denial of the right to testify is structural, and not subject to harmless error analysis. The court of appeals concluded harmless error analysis applies, relying on State v. Flynn, 190 Wis. 2d 31, 527 N.W.2d 343 (Ct. App. 1994). The defendant in Flynn brought an ineffective claim alleging his trial lawyer’s actions denied him the right to testify, and the court of appeals disposed of the case by concluding the lawyer’s actions were not prejudicial. Id. at 50-56. Flynn held that the prejudice analysis done when addressing ineffective assistance claims is “conceptually similar” to the harmless error test for constitutional violations, and the court in this case concluded it was bound by Flynn to apply harmless error analysis to the alleged error here. (¶7). Of course, the error was harmless, given the overwhelming evidence of her guilt and the fact she wasn’t going to dispute the elements of the offense. (¶¶9-12).

Wisconsin recognized the existence of the constitutional right of a defendant to testify in State v. Albright, 96 Wis. 2d 122, 291 N.W.2d 487 (1980). That decision implied that denial of the right could be harmless, for like Flynn, the case involved a claim that trial counsel hindered the defendant’s exercise of the right, and the court said the defendant could bring an ineffective claim if counsel’s actions result in loss of the right and “was prejudicial to the defendant,…” Id. at 133. In response the dissent cited State v. Rosillo, 281 N.W.2d 877, 879 (Minn. 1979), which holds the denial of the right cannot be treated as harmless error. Id. at 141 n.3 (Abrahamson, J., dissenting).

So the supreme court will now face head on whether denial of the right to testify is structural error or can be harmless. The U.S. Supreme Court has yet to decide the issue, but about a dozen lower courts have held denial of the right can be harmless. “A great weight of authority has held this type of error to be a ‘trial error,’ which may be ‘quantitatively assessed in the context of other evidence presented,’ … and thus susceptible to a harmless error analysis.” Quarels v. Commonwealth, 142 S.W.3d 73, 81 (Ky. 2004), quoting Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991), and citing state and federal cases. On the other hand, three states have concluded the error is structural: In addition to Rosillo, cited above, see State v. Dauzart, 769 So. 2d 1206 (La. 2000); and State v. Rivera, 741 S.E.2d 694 (S.C. 2013).

There are sound reasons to conclude that violation of the right to testify in one’s defense is structural error. When recognizing the right to testify the Court said “an accused’s right to present his own version of events in his own words” is “[e]ven more fundamental to a personal defense than the right of self-representation” and that “[a] defendant’s opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness.” Rock v. Arkansas, 483 U.S. 44, 52 (1987). If so, violation of the right should be treated like a violation of the right to represent oneself, which is a structural error. McKaskle v. Wiggins, 465 U.S. 168 (1984). The language in Rock even echos the Court’s observation in McKaskle, 465 U.S. at 177, that “[t]he right to appear pro se exists to affirm the dignity and autonomy of the accused and to allow the presentation of what may, at least occasionally, be the accused’s best possible defense.” Further, we can’t know the impact on the jury of the defendant’s willingness to take the stand instead of availing himself of the shelter of the Fifth Amendment, his candor and courtesy (or lack of them), his persuasiveness, his respect for court processes. “Because we cannot truly judge the effect of the defendant’s being denied the right to take the stand, and because we should be concerned with protecting both the right to choose whether to testify and the substance of the testimony,” harmlessness analysis is inappropriate: “To apply such an outcome-determinative analysis at worst denigrates the position of the individual with respect to his own defense and trial and at best exhibits an unthinking paternalism toward criminal defendants.” Wright v. Estelle, 572 F.2d 1071, 1082 (5th Cir. 1978) (Godbold, J., dissenting). See also Arthur v. United States, 986 A.2d 398, 414-15 (D.C. 2009). Whether our supreme court will be impressed with this reasoning remains to be seen.

Review of 2 unpublished per curiam court of appeals decisions in 2 unrelated cases now joined for purposes of oral argument.

State v. Carlos A. Cummings, District 4 court of appeals decision, case activity

State v. Adrean L. Smith, District 1 court of appeals decision, case activity

Cummings and Smith both present the question of whether defendants invoked their 5th Amendment right to cut off police interrogations.  State v. Markwardt, 2007 WI App 242, 306 Wis. 2d 420, 742 N.W.2d 546 and State v. Ross, 203 Wis. 2d 66, 552 N.W.2d 428 (Ct. App. 1996) hold that a suspect must invoke his right to remain silent unequivocally. The issue here seems to be whether certain statements were equivocal or unequivocal.

Over-simplifying for the sake of brevity, Cummings asked his interrogator what other witnesses were saying about the events at issue.  The interrogator responded: “I’m not gonna fuckin’ lay all of my cards out in front of you Carlos and say, ‘This is everything I know.'”  Cummings replied:  “Well then take me to my cell.  Why waste your time? Ya know.”  Meanwhile, Smith repeatedly told his interrogator:  “See, I don’t want to talk about, I don’t want to talk about this.  I don’t know nothing about this.”  In both cases, interrogators continued the interviews on the theory that there was more than one way to interpret what the defendants really meant by their words.  In both cases, the court of appeals found the defendants’ words to be equivocal invocations of the right to remain silent.

Six weeks after the court of appeals decided Cummings and Smith, the Eastern District of Wisconsin issued a writ of habeas corpus in a similar case.  Saeger v. Avila, 930 F.Supp.2d 1009 (E.D. Wis. 2013).  During interrogation, Saeger told police: “You . . . ain’t listening to what I’m telling you.  You don’t want to hear what I’m saying.  You want me to admit to something I didn’t . . . do . . .and I got nothin[g] more to say to you.  I’m done.  This is over.” Id. at 1011 (citing State v. Saeger, 2010 WI App 135, 329 Wis. 2d 711, 790 N.W.2d 543.)  The state court of appeals found Saeger’s words to be equivocal because there were reasonable competing inferences that might be drawn from them and, let’s face it, Saeger kept talking.  The Eastern District, disagreeing, found this decision to be an unreasonable application of SCOTUS precedent (namely,  Davis v. U.S., 512 U.S. 452 (1994) and Berghuis v. Thompkins, 560 U.S. 370 (2010)) because Saeger’s words were clear; the police just didn’t believe that he meant them.  The Eastern District explained:

[I]f this reasoning  were accepted, then it is difficult to imagine a situation where a suspect could meaningfully invoke the right to remain silent no matter what words he used. In an interrogation setting, one could always imagine plausible alternative motives for stating a desire for interrogation to end. The law does not require that a suspect unambiguously invoke the right to remain silent and also explain why they are doing so.  Id. at 1015-1016.

In short, according to Saeger, neither the police nor the courts may infer that a defendant who said “no” really meant “yes,” which seems to be just what the court of appeals did in Cummings and Smith.  Id. at 1017.  All of this calls to mind what Humpty Dumpty told Alice:  “When I use a word it means just what I choose it to mean–neither more nor less.”  Alice responded: “The question is whether you can make words mean so many different things.”  To which Humpy replied: “The question is which is to be master–that’s all.”  Has the supreme court passed through the looking glass to resolve this debate?  We’ll find out at the consolidated oral arguments.

State v. Daniel R. Folkman, 2013AP1363-CR, District 3, 12/17/13; court of appeals decision (1-judge; ineligible for publication); case activity

A deputy on patrol checked the license plate of an oncoming car. The check showed the car belonged to Folkman. The deputy then checked Folkman’s license status, which was expired, so the deputy stopped the car, ultimately resulting in Folkman’s arrest for OWI. (¶2). The court of appeals rejects Folkman’s claim the deputy needed some valid reason to initiate the registration and license checks.

Folkman has the burden to show he has reasonable expectation of privacy in registration and license information, State v. Rewolinski, 159 Wis. 2d 1, 12-16, 464 N.W.2d 401 (1990). Instead of directly undertaking to satisfy that burden he cites three cases—Delaware v. Prouse, 440 U.S. 648 (1979); State v. Lord, 2006 WI 122, 297 Wis. 2d 592, 723 N.W.2d 425; and State v. Newer, 2007 WI App 236, 306 Wis. 2d 193, 742 N.W.2d 923—for the proposition that police need “exigent circumstances” before they can check license and registration information. The court distinguishes all three.

Prouse and Lord involved stops for the purpose of checking or verifying registration, when the officer had no reasonable basis for believing there was a problem with the registration. “There is a considerable difference between an officer stopping, or seizing, a vehicle to check the registration and license information and an officer running registration and license queries in a law enforcement database.” (¶12). Thus, neither Prouse nor Lord establish a person has a reasonable expectation of privacy in his registration and driver’s license information. Newer doesn’t apply because the issue in that case was whether an officer has reasonable suspicion to stop a vehicle if the officer knows the vehicle’s owner has a revoked license, but does not know who is actually driving; thus, the case did not address whether individuals have a reasonable expectation of privacy in registration and license information contained a law enforcement database. (¶15).

The court also rejects Folkman’s claim that the state’s collection of registration and license information is like the NSA’s collection of personal email and telephone communications, which are supposed to be examined only if the government has a valid reason. “That individuals have an expectation of privacy in personal emails and telephone conversations that were collected through ‘hacking’ does not mean individuals have the same expectation of privacy in vehicle registration and licensing information, which, as the circuit court observed, is information that individuals are required to submit to the state.” (¶17).

Question Presented:

Whether the government must prove that the defendant intended to defraud a bank and expose it to risk of loss in every prosecution under 18 U.S.C. § 1344.

Lower court decision: United States v. Loughrin, 710 F.3d 1111 (10th Cir. 2013)

Docket

Scotusblog page

Are you defending someone charged with federal bank fraud under 18 U.S.C. § 1344? If you are, you’ll want to keep an eye on this case. It will settle a split between the federal circuit courts about how to interpret the two different subsections of the statute, which reads:

Bank Fraud  Whoever knowingly executes, or attempts to execute, a scheme or artifice

(1) to defraud a financial institution; or

(2) to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises.

Some circuits say that regardless of whether the defendant is charged under subsection (1) or (2), § 1344’s intent element imposes two requirements: First, the defendant intended to defraud a covered financial institution–which means it is not enough the defendant intended to defraud a non-bank victim even if a bank was involved in the scheme in some way; second, the defendant’s scheme exposed the bank to a risk of loss of its property or property under its custody or control (e.g, customer deposits)–which means it is insufficient that a defendant lied in some way to a bank if he did not intend to expose the bank (as opposed to some other victim) to a risk of financial harm. See, e.g., United States v. Kenrick, 221 F.3d 19, 29 (1st Cir. 2000). The Seventh Circuit seems to have adopted this approach. Bressner v. Ambroziak, 379 F.3d 478, 482 (2004) (“An essential element of bank fraud is ‘intent to deceive a bank in order to obtain from it money or other property’” (quoting United States v. Lane, 323 F.3d 568, 583 (7th Cir. 2003) (citing Kenrick, 221 F.3d at 545))).

Other circuits–including the Tenth Circuit in this case–hold that a charge under subsection (2) requires only intent to defraud someone and a connection between the fraudulent scheme and a financial institution. The defendant here was convicted based on a scheme in which he stole checks from other persons’ outgoing mail, altered the payee on the checks so they appeared to be made out to Target, purchased merchandise using the altered checks, and then returned the merchandise for cash. This scheme defrauded Target, not a bank, but under Tenth Circuit precedent that was good enough.

The Supreme Court will now resolve whether § 1344 is violated when a defendant defrauds a third party using a scheme that has a nexus to a financial institution but doesn’t create a risk of loss for the institution. In so doing the Court will either affirm or overturn Seventh Circuit law. Federal practitioners, stay tuned.

Kansas v. Cheever, USSC No. 12-609, 12/11/13

United States Supreme Court decision, reversing Kansas v. Cheever, 284 P.3d 1007 (Kan. 2012).

The Supreme Court unanimously holds that “where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, the prosecution may offer evidence from a court-ordered psychological examination for the limited purpose of rebutting the defendant’s evidence.” (Slip op. at 10).

Cheever was originally charged with homicide in federal court, where he asserted his intoxication on methamphetamine negated his ability to form specific intent. Raising this defense resulted in a court-ordered psychiatric evaluation, which included hours of interviews with a forensic psychiatrist. After the federal case was dismissed (for reasons not relevant here) Cheever was charged in state court. Once again he asserted a voluntary intoxication defense, arguing his meth use rendered him incapable of premeditation. To support the defense he presented an expert who testified that Cheever’s long-term meth use had damaged his brain. In rebuttal, the state was allowed to call the psychiatrist who evaluated Cheever in the federal prosecution, who opined that Cheever acted based on his antisocial personality, not because he was impaired by drug use. (Slip op. at 2-3). The Kansas Supreme Court held that allowing the federal psychiatrist to testify about the statements Cheever made during his court-ordered federal evaluation violated his Fifth Amendment rights.

The Supreme Court reverses. “The rule of Buchanan [v. Kentucky, 483 U.S. 402 (1987)], which we reaffirm today, is that where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit an offense, the prosecution may present psychiatric evidence in rebuttal.” (Slip op. at 5). This rule, the Court says,

harmonizes with the principle that when a defendant chooses to testify in a criminal case, the Fifth Amendment does not allow him to refuse to answer related questions on cross-examination. A defendant “has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.” Fitzpatrick v. United States, 178 U.S. 304, 315, 20 S.Ct. 944, 44 L.Ed. 1078 (1900). We explained in Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958), which involved a witness’s refusal to answer questions in a civil case, that where a party provides testimony and then refuses to answer potentially incriminating questions, “[t]he interests of the other party and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination.” Id., at 156 78 S.Ct. 622. When a defendant presents evidence through a psychological expert who has examined him, the government likewise is permitted to use the only effective means of challenging that evidence: testimony from an expert who has also examined him. (Slip op. at 6).

Buchanan rested in large part on Estelle v. Smith, 451 U.S. 454 (1981), where a defendant who had not placed his mental status in issue was subjected to a psychiatric examination ordered sua sponte by the court, without notice to defense counsel. Under these circumstances the defendant’s Fifth Amendment right against compelled self-incrimination precluded use of the statements made during the examination. But the Court also noted that if the defendant presented psychiatric evidence, the prosecution may rebut this presentation with evidence from the reports of the examination that the defendant requested. 451 U.S. at 465.

The lower court held Buchanan applies only when the defendant alleges a “mental disease or defect” impaired his ability to form the mental state required for the crime, not when he asserts he was affected only by a temporary mental condition, such as intoxication. The Supreme Court rejects this reasoning, because Buchanan itself involved a defense based on a temporary condition (extreme emotional disturbance), and its rule is not premised on a semantic difference between “mental disease or defect” and “mental status”:

…. Although Kansas law defines “mental disease or defect” narrowly, to exclude voluntary intoxication, that phrase is actually not the salient one under our precedents. In Buchanan, we permitted rebuttal testimony where the defendant presented evidence of “the ‘mental status’ defense of extreme emotional disturbance.” 483 U.S., at 423. And “mental status” is a broader term than “mental disease or defect,” at least to the extent that Kansas law excludes voluntary intoxication from that definition. Mental-status defenses include those based on psychological expert evidence as to a defendant’s mens rea, mental capacity to commit the crime, or ability to premeditate. Defendants need not assert a “mental disease or defect” in order to assert a defense based on mental status.” (Slip op. at 7-8).

The Court does note, however, that rebuttal testimony based on a court-ordered psychiatric evaluation is admissible for the limited purpose of answering the defense actually raised. (Slip op. at 9). Cheever argued that the rebuttal testimony presented by the state in his case exceeded this limit, though the lower court didn’t address the argument; accordingly, the Court remanded the case for consideration of that issue. (Slip op. at 9-10).

This decision should not have much impact on state practice. First, Wisconsin precludes a defendant from presenting expert psychiatric testimony about the capacity to form intent if that expert testimony rests in whole or in part on the defendant’s mental health history. State v. Morgan, 195 Wis. 2d 388, 403-13, 536 N.W.2d 425 (Ct. App. 1995); Steele v. State, 97 Wis. 2d 72, 294 N.W.2d 2 (1980). The issue presented in Cheever could arise in some cases, however, for a defendant who (like Cheever) raises a defense of voluntary intoxication, § 939.42(2), may present expert testimony about his or her capacity to form intent to commit an offense if the expert’s opinion is based solely on intoxication, without any admixture of mental health history. State v. Flattum, 122 Wis. 2d 282, 361 N.W2d 705 (1985); State v. Repp, 122 Wis. 2d 246, 362 N.W.2d 415 (1985). A defendant can also present expert testimony in support of a defense of involuntary intoxication, § 939.42(1), because that defense is akin to NGI and doesn’t raise the issue of lack of capacity to form intent. State v. Gardner, 230 Wis. 2d 32, 36-39, 601 N.W.2d 670 (Ct. App. 1999).

Moreover, the few Wisconsin cases applying Buchanan or Estelle (or both) seem to have anticipated the result. “After Buchanan, a defendant who initiates a psychiatric evaluation and places mental status in controversy waives the right to remain silent,…” State v. Slagoski, 2001 WI App 112, ¶14, 244 Wis. 2d 49, 629 N.W.2d 50 (use of NGI evaluation at sentencing did not violate Fifth Amendment because entry of NGI plea waived privilege). See also State v. Lindh, 161 Wis. 2d 324, 365-69, 468 N.W.2d 168 (1991) (defendant who raised NGI defense did not have Fifth Amendment right to exclude statements made to state-retained psychiatrist from the responsibility phase of bifurcated trial, even though he made the statements well before he formally raised the defense), denial of habeas petition reversed on other grounds, Lindh v. Murphy, 521 U.S. 320 (1997); habeas relief granted on remand on other grounds, Lindh v. Murphy, 124 F.3d 899 (7th Cir. 1997). (Waiver of the privilege with respect to statements made during the mandatory evaluations under § 971.16 does not allow use of the examination at the guilt phase of the bifurcated trial, State ex rel. LaFollette v. Raskin, 34 Wis. 2d 607, 150 N.W.2d 318 (1967); nor does it allow the state to call the defendant as a witness during the responsibility phase, State v. Langenbach, 2001 WI App 222, 247 Wis. 2d 933, 634 N.W.2d 916.)

Be aware that even if you are not raising a “mental status” defense, putting the defendant’s version of the offense into issue through testimony of a psychological expert waives the defendant’s Fifth Amendment privilege. See State v. Davis, 2002 WI 75, 254 Wis. 2d 1, 645 N.W.2d 913 (character trait evidence under State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998), did not turn expert in “conduit” for defendant’s version of offense, so privilege not waived); State v. Kleser, 2010 WI 88, ¶¶108-17, 328 Wis. 2d 42, 786 N.W.2d 144 (applying Davis, and citing Estelle, to hold that defendant waived privilege during reverse waiver proceeding by telling his psychological expert the facts of the case, thus putting “his account of the offense into issue through his expert”). If the privilege is waived the state can compel an examination of the defendant by its own expert, though Davis, ¶45, cites Buchanan to hold that the evidence from the compelled exam may only be used in rebuttal.

The Third Circuit plans to rehear en banc a case limiting the scope of the Davis good faith exception to the exclusionary rule.  Read Orin Kerr’s analysis of the problem on The Volokh Conspiracy.

Is there a national epidemic of Brady violations?  Ninth Circuit Judge Alex Kozinski thinks so, and he wants to see prosecutors penalized for them.  Read about it here.

How do you use a brain scan to defeat the death penalty (or, perhaps, other harsh sentences).  Click here for one defense team’s strategy.

Suppose a judge schedules a pretrial conference in your case at the same time as your office holiday party.  What should you do?  Hint:  Don’t file a motion arguing that “defendants and their counsel should not be made to be at the beck and call of the court” and that forcing counsel to miss the firm’s pre-planned Christmas party is “patently unfair.”  The judge’s reply:  Too bad.  “The court will trust that there will be no long-term emotional damage.”  Above the Law presents this saucy take on the story.

Just 12 shopping days left before the big holiday! You can take care of that lovable lawyer on your list here and now with the ABA Journal’s guide to the best 2013 holiday gifts for lawyers.    How about the shark sleeping bag with removable dorsal fin pillow for snoozing in the office or the Dine Ink Utensil set for lunching at your desk?  Click here.   If you don’t like the ABA’s guide, then try Above the Law’s 2013 Holiday gift guide here.  The free legal advice grenade paperweight or the “approach the bench” chess set might be just the ticket!

State v. Tina M. Jacobsen, 2014 WI App 13; case activity

Jacobsen was charged with 8 offenses for stealing $500,000 from her employer, and she was convicted on 3 counts.  The charges were based on 289 individual thefts occurring over 3 years.  On appeal she claimed her trial lawyer was ineffective for failing advise her that, and for failing to seek dismissal because, the charges were duplicitous or multiplicitous.  In her view, the State had to charge her with either a single offense for her entire course of conduct or separate offenses for each of the 289 thefts.  The court of appeals held that the charges were neither duplicitous, nor multiplicitous. Slip op. ¶¶ 17, 32-35.

Both parties requested publication of the court’s decision The State specifically sought clarification that “discrete acts that may be aggregated to form a single continuing offense may be subdivided into multiple continuing offenses without violating the multiplicity doctrine. (Resp. Br. 1).  The court of appeals’ decision rests on § 971.36(3)(a) (“all thefts may be prosecuted as a single crime if . . . [t]he property belonged to the same owner and the thefts were committed pursuant to a single intent and design or in execution of a single deceptive scheme”).

The court of appeals also expends considerable energy distinguishing State v. George, 69 Wis. 2d 92, 99-100, 230 N.W.2d 253 (1975)(examining §945.03 re commercial gambling), which held: “The defendant, at the election of the state, can be charged with one continuous offense but only one, or with one or more specific individual offenses but not both . . .”  And to further support its reasoning, the court reaches over (and pretty far back) to United States v. Carter, 804 F.2d 508, 511 (9th Cir. 1986), which holds that the government may group acts by date so that each count meets the statute’s jurisdictional requirement.  The Carter dissent at 518 offers a more vivid description of the problem: “According to the majority, every time the total value of a series of shipments of stolen property passes a multiple of $5,000, a bell rings and a new federal crime is committed. I believe the majority confuses jurisdictional requirements with the substantive elements of an offense.”

Ask not for whom the bell tolls.  Given the dearth of authority on § 971.36(3)(a) as applied to thefts, this case may live to see another appellate court.