Tuesday, October 1, 2013

Government Shutdowns: A Modest Proposal

All of this federal government shutdown business got me thinking about a possible state of Wisconsin government shutdown.  If that ever happens, which government services would be considered essential, and which would be nonessential and, therefore, suspended or even eliminated?  My modest proposal (for a hypothetical state-government shutdown) is that we could do without the services of many of our appellate courts.  Why?  The story begins with a recent Wisconsin criminal case, where the trial judge prevented the defendant from testifying in her own defense.  If that sounds shocking to you, it should.  Few things (if any) are more fundamental than a defendant’s constitutional right to testify at her own trial.  So why wouldn’t the trial judge let the defendant—here, an eighteen year old girl—take the witness stand?

  1. For some reason, the judge demanded that the defendant tell him and the prosecutor what she was going to say before she was allowed to testify.
  2. The judge then determined that the defendant’s testimony would be irrelevant to the issues in the case.    
  3. The judge also determined that the defendant’s testifying, if permitted, would be against her lawyer’s advice.
The defendant was convicted, and she appealed.  First, here’s what the appellate court should have said:
  1. Dear trial judge: you cannot demand that a defendant (whether directly or through her attorney) provide you and the prosecutor with the substance of her anticipated testimony before you allow her to testify.  (Your actions were so clearly wrong, and violated so many different constitutional rights, that we’re not even going to bother with citations to legal authority for this one.) 
  2. Dear trial judge: the defendant’s testimony was, in fact, relevant.  Even the limited, ill-prepared, off-the-cuff summary of her testimony (that you forced her to produce) proved that.  Also, the defendant asked to testify three different times, and said that “she wanted her side to be heard.”  So, even if you determined that the defendant’s relevant testimony would have hurt her more than it would have helped her, the phrase “jury nullification” should have been ringing in your head.  (If your next thought is that you aren’t obligated to instruct the jury on its power to nullify, that’s not the point.  Please reread this entire paragraph—closely—and think about it some more.)
  3. Dear trial judge: you should know that defense lawyers cannot tell their clients whether they can or cannot testify.  In fact, even you have probably conducted dozens (or even hundreds) of mid-trial colloquies warning defendants that while they can consider their attorney’s advice about whether they should testify, the decision is the defendant's and the defendant's alone.  No one, not the defense lawyer or even the mighty judge, can make a defendant testify or prevent her from testifying.  These very words have, or at least should have, flown from your mouth dozens of times before.  (Again, this is so basic that we're not going to bother with citations to legal authority.)    
Instead, what did the appellate court do?  Relying on an obviously distinguishable case, it blessed the trial judge’s blatant (and probably multiple) violations of the defendant’s constitutional rights as—wait for it—“harmless error.”  Convictions affirmed.  Not even the usual, hollow warning about how “we caution trial judges in the future not to prevent defendants from testifying in their own defense.”  Nothing!

So what does this have to do with closing down the Wisconsin appellate courts—or at least this particular appellate court—in a hypothetical state-government shutdown?  Well, rubberstamping blatant constitutional errors as “harmless” is a government “service” we can all live without.


  1. At this point, is the defendant stuck? Does the defendant have any other course of action?

    Do you think the judge is knowingly doing something that is unconstitutional and is hoping to get away with it? I would think that these kinds of things are spelled out pretty clearly.

    Thanks, I appreciate your posts

  2. Brad, these are great questions.

    Sometimes judges don't understand the law; conversely, sometimes I've even had them tell me "I know the law is X, but I don't like it so I'm going to do Y." But, before I read this case (the topic of the post) I never would have guessed that a judge would pull what this judge pulled. (That's why criminal defense gets harder, not easier, over time: the more crazy things I see and read, the more I have to anticipate and prepare for. On the other hand, when I first started out, I operated under the delusion that judges know and follow the law, which at least made my trial preparation much easier.)

    This judge did violate an incredibly basic law -- one that's spelled out in his judicial bench book and elsewhere. Even the prosecutor should have been begging the judge to let the defendant testify at trial for two reasons: (1) the testimony probably would have helped the prosecutor, and (2) the prosecutor should have smelled an appeal coming if the defendant was barred from testifying.

    Finally, is the defendant stuck? She has a right to petition the Wisconsin Supreme Court to hear the case, but there are no guarantees. (After that, it might be possible to "jump" into the federal system because this case involves a fundamental, constitutional right, rather than something more mundane like whether, say, a minor piece of evidence was improperly admitted.) But this seems like a case that the Wisconsin Supreme Court would want to take, as it's so fundamental. A blatant judicial error like this should be cause for instant reversal, rather than the "harmless error" analysis -- at least in my opinion.