On Point: 5. Denial of right to defense

State v. Kenyon D. Grant, 2020AP785, 3/9/21, District 1 (not recommended for publication); case activity (including briefs)

McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500 (2018) held that trial counsel cannot concede guilt over his client’s express objection. This would deny the client his 6th Amendment right to determine the objective of his defense and require an automatic new trial. Grant raised a McCoy claim in this case. It failed because trial counsel testified that Grant did not oppose his concession strategy and objected only after hearing the State’s evidence against him.

State v. Decarlos K. Chambers, 2019AP411-CR, 2021 WI 13, 2/23/21, affirming a per curiam court of appeals opinion,  case activity (including briefs)

SCOTUS recently held that when a client expressly asserts that he wants to maintain his innocence, defense counsel cannot override that objective and concede guilt. If counsel does, a structural error occurs, and the client automatically gets a new trial. McCoy v. Louisiana, 584 U.S. ___, 138 S. Ct. 1500 (2018). This appeal had the potential to clarify whether McCoy altered Wisconsin law on this subject.  See our post on McCoy. Alas, this decision does not address Wisconsin law. Instead, SCOW unanimously affirms that defense counsel did not concede her client’s guilt.

State v. Decarlos K. Chambers, 2019AP411-CR, petition for review of per curiam opinion granted 9/16/20; case activity (including briefs)

Issue presented (derived from Cambers’ petition for review):

The State charged Chambers with 1st degree reckless homicide. He maintained that he had not committed the crimes and that was absolutely innocent. He refused all plea offers. Nevertheless, during closing arguments his lawyer told the jury they should consider convicting him of 2nd degree recklessly homicide, and they did.  The issues is whether trial counsel violated Chambers’ 6th Amendment right to determine his own defense under  McCoy v. Louisiana, 138 S Ct. 1500 (2018).

State v. Duanne D. Townsend, 2019AP787, 6/9/20, District 1 (not recommended for publication); case activity (including briefs)

Good news: the court of appeals reversed a circuit court decision denying Townsend’s §974.06 motion without a hearing. Townsend now gets a one on his claims for ineffective assistance of postconviction and trial counsel. Bad news: the court of appeals botched the issue of whether Townsend was denied his 6th Amendment right to determine his own defense under McCoy v. Louisiana, 138 S Ct. 1500 (2018). As noted in our post on McCoy, SCOW needs to square that decision with Wisconsin case law.

State v. C.L.K., 2019 WI 14, reversing an unpublished court of appeals opinion; 2/19/19; case activity (including briefs)

The State of Wisconsin petitioned the Milwaukee County Circuit Court to terminate C.L.K.’s parental rights, following which the matter went to trial in due course. After the State rested, the circuit court immediately  decided that Mr. K. was an unfit parent. That is, the circuit court decided the matter before giving Mr. K. an opportunity to present his case. The State concedes this was error, but says it is susceptible to a “harmless-error” review. It is not. 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. Opinion, ¶1.

State v. Kyle Lee Monahan, 2018 WI 80, affirming an unpublished court of appeals decision, 2014AP2187, case activity (including briefs)

You wouldn’t know it from the opinions, but the parties here briefed (and WACDL filed an amicus brief on) a question of harmless error doctrine. When trying to decide whether a trial error is harmless, the court is to ask whether “the jury would have arrived at the same verdict had the error not occurred.” Monahan contended that since a jury, as finder of fact, is free to draw any reasonable inference from the evidence, the reviewing court must view the trial evidence in the light most favorable to the defendant–that is, not declare an error harmless unless there is no reasonable set of inferences that would lead the jury to acquit. He argued that the court of appeals had not done this–that it had instead taken a conviction-friendly view of the evidence, effectively substituting its own views for that of the hypothetical “reasonable jury.” In so doing, he said, the court of appeals had effectively turned the (ostensibly stringent) harmless error test to the (extremely forgiving) standard for sufficiency of the evidence.

McCoy v. Louisiana, USSC No. 16 – 8255, 2018 WL 218-617, 5/14/18, reversing and remanding State v. McCoy, 2018 So.3d 535 (La. 2016); SCOTUSblog page (includes links to briefs and commentary).

In a 6-3 opinion written by Justice Ginsburg, SCOTUS holds that the Sixth Amendment guarantees a defendant the right to choose the objective of his defense and to insist that his lawyer refrain from admitting that he is guilty of a charged crime when he objects to that admission. It further holds that if a lawyer concedes guilt in this situation, Strickland and the harmless error rule do not apply. The defendant automatically gets a new trial.

This new law review article by Daniel Epps examine the subject in depth. Consider this excerpt from the abstract:

Judges and commentators sharply disagree about which (and even whether) constitutional errors can be harmless, how to conduct harmless-error when it  analysis applies, and, most fundamentally, what harmless constitutional error even is-what source of law generates it and enables the Supreme Court to require its use by state courts. This Article offers a new theory of harmless constitutional error,

For the 2015 SPD conference, Judge Sankovitz and Attorneys Rob Henak and Melinda Swartz prepared an excellent outline on a problem that plagues many defense lawyers on appeal.  They have a great issue. They win it, but then the court of appeals or supreme court finds the error harmless.  This detailed, well-researched outline walks you through the history of the “harmless error” doctrine and offers ideas for how to beat it in various situations.  

State v. Thomas G. Kramer, 2006 WI App 133, PFR filed 7/10
For Kramer: Timothy A. Provis

Issue/Holding: Any error in exclusion of evidence claimed necessary to support the theory of imperfect self-defense would have been harmless:

¶26      …  Our inquiry, therefore, is whether it is “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” Neder v.