Any closure of a suppression hearing must advance an overriding interest likely to be prejudiced. Closure must be no broader than necessary to protect that interest. The court must consider alternatives and make a finding adequate to support closure. Waller v. Georgia, 467 U.S. 39, 104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984). The time during which defendants are neither under indictment nor subjected to any official restraint does not weigh toward the defendants’ speedy trial claims. United States v. Loud Hawk, 474 U.S. 302, 106 S. Ct. 648, 88 L. Ed. 2d 640 (1986). The speedy-trial right is amorphous, slippery, and necessarily relative. There is a balancing test in which the conduct of both the prosecution and the defendant are weighed. Some of the factors that courts should weigh include length of delay, the reason for the delay, the defendant’s assertion of the right, and prejudice to the defendant. The attorney is the defendant’s agent when acting, or failing to act, in furtherance of the litigation, and delay caused by the defendant’s counsel is charged against the defendant. The same principle applies whether counsel is privately retained or publicly assigned. Assigned counsel’s failure to move the case forward does not warrant attribution of delay to the state. However, delay resulting from a systemic breakdown in the public defender system could be charged to the state. Vermont v. Brillon, 556 U.S. 81, 129 S. Ct. 1283, 173 L. Ed. 2d 231 (2009). The speedy trial guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges. For inordinate delay in sentencing, although the speedy trial clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the due process clauses of the 5th and 14th amendments. Betterman v. Montana, 578 U.S. 437, 136 S. Ct. 1609, 194 L. Ed. 2d 723 (2016). A violation of the right to a public trial is a structural error. In the case of a structural error when there is an objection at trial and the issue is raised on direct appeal, the defendant generally is entitled to automatic reversal regardless of the error’s actual effect on the outcome. When a defendant raises a public-trial violation via an ineffective-assistance-of-counsel claim, Strickland, 466 U.S. 668 (1984), prejudice is not shown automatically. Instead, the burden is on the defendant to show either a reasonable probability of a different outcome in the defendant’s case or to show that the particular public-trial violation was so serious as to render the trial fundamentally unfair. Weaver v. Massachusetts, 582 U.S. 286, 137 S. Ct. 1899, 198 L. Ed. 2d 420 (2017). Following a guilty plea, the defendant could not raise a speedy trial issue. United States v. Gaertner, 583 F.2d 308 (1978). Constitutional Law—Closure of Trials—The Press and the Public Have a First Amendment Right of Access to Attend Criminal Trials, Which Cannot Be Closed Absent an Overriding Interest. Richmond Newspapers, Inc. v. Virginia, 100 S. Ct. 2814 (1980). Morris. 64 MLR 717 (1981). miscellaneous
A defendant may waive the right to be present at a proceeding when the court orders the defendant’s case consolidated with another. It is not error at the start of a trial to revoke bail and remand the defendant to the custody of the sheriff. Beverly v. State, 47 Wis. 2d 725, 177 N.W.2d 870 (1970). A prisoner held in Dodge County, who escaped from a hospital in another county while being treated there, could be tried for the escape in Dodge County. Dolan v. State, 48 Wis. 2d 696, 180 N.W.2d 623 (1970). A defendant is not prejudiced when the court amends the charge against the defendant to charge a lesser included offense without informing the defendant of the nature of the amended charge or allowing the defendant to plead to it. Moore v. State, 55 Wis. 2d 1, 197 N.W.2d 820 (1972). It is not a violation of a defendant’s rights if the defendant is prosecuted by information and not by grand jury indictment. State v. Lehtola, 55 Wis. 2d 494, 198 N.W.2d 354 (1972). A defendant is not entitled to be present at a conference in chambers if only questions of law or preliminary matters of procedure are discussed. Leroux v. State, 58 Wis. 2d 671, 207 N.W.2d 589 (1973). Participation of the state in promulgating adverse publicity is relevant in determining whether the trial court abused its discretion in not granting a venue change. Briggs v. State, 76 Wis. 2d 313, 251 N.W.2d 12 (1977). If a defendant acquiesces in counsel’s decision that the defendant not testify, the defendant’s right to testify is waived. State v. Albright, 96 Wis. 2d 122, 291 N.W.2d 487 (1980). When the defendant was not relying on an alibi defense and did not file a notice of alibi, the court did not abuse its discretion in barring alibi testimony. State v. Burroughs, 117 Wis. 2d 293, 344 N.W.2d 149 (1984). Constitutional error is harmless if the court can declare its belief that it is harmless beyond a reasonable doubt because there is no reasonable possibility the error contributed to the conviction. State v. Brecht, 143 Wis. 2d 297, 421 N.W.2d 96 (1988). Two factors determine the sufficiency of a criminal charge: 1) whether it states an offense to which the defendant can plead; and 2) whether disposition will bar future prosecution for the same offense. Discussing additional factors. State v. Fawcett, 145 Wis. 2d 244, 426 N.W.2d 91 (Ct. App. 1988). A judge’s bias against counsel must be severe to translate into unconstitutional partiality against a litigant. State v. Hollingsworth, 160 Wis. 2d 883, 467 N.W.2d 555 (Ct. App. 1991). Rules for pleadings in criminal obscenity cases are the same as for all other criminal cases. If a pleading fails to set forth all elements of a crime but includes correct citations, all elements are sufficiently alleged. State v. Petrone, 161 Wis. 2d 530, 468 N.W.2d 676 (1991). Notice of the nature and cause of the accusations is a key factor in determining whether an amendment at trial prejudices a defendant. The inquiry is whether the new charge is so related to the transaction and facts adduced at the preliminary hearing that a defendant cannot be surprised by the new charge since the preparation for the new charge would be no different than the preparation for the old charge. State v. Neudorff, 170 Wis. 2d 608, 489 N.W.2d 689 (Ct. App. 1992). A criminal defendant’s right to testify is fundamental. In order to determine whether a criminal defendant is waiving the right to testify, a circuit court should conduct an on-the-record colloquy with the defendant outside the presence of the jury consisting of a basic inquiry to ensure that the defendant is aware of the defendant’s right to testify, and the defendant has discussed this right with counsel. State v. Weed, 2003 WI 85, 263 Wis. 2d 434, 666 N.W.2d 485, 01-1476. Following an unchallenged colloquy wherein the defendant knowingly, voluntarily, and intelligently waived the defendant’s right to testify, the defendant’s failure to seek an offer of proof at the time of trial or in the postconviction motion operated as a waiver of the right to have decided the issue of whether the waiver to testify could be withdrawn. State v. Winters, 2009 WI App 48, 317 Wis. 2d 401, 766 N.W.2d 754, 08-0910. When a trial court fails to satisfy the Weed, 2003 WI 85, mandate to conduct an on-the-record colloquy to determine if the defendant knowingly waived the right to testify, an evidentiary hearing to determine whether the waiver was knowingly, voluntarily, and intelligently made is the proper procedural response. The state carries the burden to show that the defendant’s waiver was knowing and voluntary and must do so by clear and convincing evidence. State v. Garcia, 2010 WI App 26, 323 Wis. 2d 531, 779 N.W.2d 718, 09-0516. Weed, 2003 WI 85, does not address the situation here, in which a defendant prevented the trial court from conducting the on-the-record colloquy it required. By refusing to come to court so the trial court could personally explain what Weed requires must be explained, the defendant made it, as a practical matter consistent with safety, impossible for the trial court to explain the defendant’s right to testify and determine whether the decision to not testify was knowing, intelligent, and voluntary. State v. Vaughn, 2012 WI App 129, 344 Wis. 2d 764, 823 N.W.2d 543, 12-0094. Harmless error review applies to the circuit court’s alleged denial of a defendant’s right to testify because its effect on the outcome of the trial is capable of assessment. State v. Nelson, 2014 WI 70, 355 Wis. 2d 722, 849 N.W.2d 317, 12-2140. A criminal defendant’s right to testify may, in appropriate cases, be subject to forfeiture when conduct incompatible with the assertion of the right is at issue. A forfeiture determination may not be arbitrary or disproportionate to the purposes it is designed to serve. Stated differently, a complete denial of the right to testify must be reasonable under the circumstances of the case. State v. Anthony, 2015 WI 20, 361 Wis. 2d 116, 860 N.W.2d 10, 13-0467.