Defense has right to put on case, State Supreme Court rules – two justices disagree

Kelly

By Gretchen Schuldt 

A defendant has the right to present a case at trial even if a judge thinks there is enough evidence to decide without it, the State Supreme Court ruled last week.

“We hold that denying a defendant the opportunity to present his case-in-chief is a structural error, the consequence of which is an automatic new trial,” Justice Daniel Kelly wrote in a 4-2 decision.

Chief Justice Patience D. Roggensack and Justice Annette Kingsland Ziegler dissented, saying that Milwaukee County Circuit Judge Christopher Foley committed only a “harmless error” when he did not allow Mr. K a chance to present a case to contest the state's contention that he was an unfit parent.

Justice Rebecca Dallet did not participate in the case.

Mr. K testified under direct examination by the district attorney’s office and under cross examination by his own lawyer, Roggensack wrote. There is not a reasonable probability that the outcome of the case would have been different if Mr. K had been allowed to put on his own case, she said.

The court’s ruling reverses both Foley and District 1 Court of Appeals Judge Timothy G. Dugan, who upheld Foley’s decision.

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Roggensack

The state, in seeking to terminate Mr. K parental rights to two children, alleged that he abandoned them and failed to assume parental responsibility. Mr. K disputed the allegations and the case went to trial.

There is a two-phase process in termination of parental rights (TPR) trials: the first determines whether the parent is unfit; the second occurs when the parent is found to be unfit and determines whether the best solution is to permanently end the parents rights regarding that child.

In this case, during the first phase, Mr. K was the only person to testify in the first phase, Kelly wrote in his 26-page majority opinion. (Roggensack beat him by a page – the dissent is 27 pages long.) Mr. K testified that he hadn’t seen his children for a couple of months, and wasn’t involved in their lives.

“He testified that he didn't visit his children, speak to them, write to them, text them, or contact their foster home from July 2015 to September 2016. … Mr. K. admits that he didn't make any effort to contact his children and was hardly involved in their lives for three years. When pressed as to whether he had a good reason for not contacting them, he said: ‘There's no reason at all. There's no excuse,’“ Kelly wrote.

On cross examination by his own attorney, Mr. K said a social worker told him he was not allowed to contact his children or have the foster home’s number. Mr. K also testified that he did not visit his children although he had visitation rights because he moved out of town for a better job.

After the state finished, Mr. K’s lawyer asked that he be allowed to put Mr. K on the stand to “finish our side of the case.”

Instead, Foley granted the state’s motion for a directed verdict finding Mr. K unfit.

Foley erred, Kelly wrote, and “the error so permeates the proceeding that it is incapable of producing a constitutionally-sound result.”

He continued later: “This matter was presented to the circuit court according to only the State's theory of the case. This lack of mutuality made the hearing less like an adversarial contest between the parties and more like a continental-European inquisitorial proceeding.”

Kelly rejected Roggensack’s contention that there was sufficient evidence to uphold Foley’s ruling.

The procedural error itself can hide important evidence from the court, he said.

"The whole point of the structural error doctrine is that some errors so undermine the proceeding's integrity that we cannot know what we do not know," Kelly wrote. 

Kelly took a final shot at the two dissenters’ concern that the majority decision does not have  precedent in either the State or U.S. Supreme Courts.

“Perhaps...neither of these courts have had occasion to address this issue because the proposition that a state-centric half-trial can produce a structurally sound result is so astonishing that no one has thought to make the argument before,” he wrote.