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Justices uphold conviction where defendant was not allowed to testify

By: Eric Heisig//July 16, 2014//

Justices uphold conviction where defendant was not allowed to testify

By: Eric Heisig//July 16, 2014//

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Angelica Nelson
Angelica Nelson

A judge’s decision not to allow a defendant to testify at her own trial can be considered a harmless error that would not have affected the outcome, the Wisconsin Supreme Court ruled Wednesday.

The court, in a 5-2 decision, upheld Angelica Nelson’s 2012 conviction of three counts of sexual assault of a child. Nelson, 21, is serving five years of probation for her convictions.

According to the decision, authored by Justice Pat Roggensack, Nelson was 18 years old when she had sex with D.M., who was then a 14-year-old boy. She admitted to this in a text message to D.M.’s mother, adding that “I know there [are] laws, but he’s hot and I’m sorry.” She also admitted to it in interviews with police.

Early in the court case, Nelson pleaded not guilty by mental disease or defect. Eau Claire County Circuit Judge William Gabler found that Nelson could appreciate the wrongfulness of her conduct, despite some mental limitations, and Nelson changed her plea to not guilty.

During the trial, Nelson, against the advice of her attorney, said she wanted to testify. She would not dispute that she had sex with D.M., but wanted “to tell what actually happened,” according to court documents, and dispute a few nonessential facts of the case. Gabler denied her the ability to testify by reasoning that Nelson wasn’t knowingly waiving her right against self-incrimination.

The state Supreme Court, in its ruling, noted that both sides said Gabler made an error in not allowing Nelson to testify. The majority did not rule on whether the decision was an error, but said that if it was, it would not have resulted in a different verdict.

“The only facts the jury needed to find were that Nelson had sexual intercourse with a person who had not attained the age of 16 on three occasions,” according to the opinion. “Even if the jury believed Nelson’s version of the events, or could not decide whether to believe Nelson or D.M., Nelson’s testimony still would have made it more likely that those facts were true.”

The majority also noted “the overwhelming strength of the prosecutor’s case.”

Chief Justice Shirley Abrahamson, in a dissent joined by Justice Ann Walsh Bradley, said that she would have found that Gabler made an error and that it should not be subject to a harmless error analysis.

“Taking the stand is a defendant‘s opportunity to face his or her accusers, to tell his or her story, and to attempt to persuade those who will make a decision that will have a profound effect on his or her life and liberty,” Abrahamson wrote. “A defendant’s opportunity to conduct his or her own defense by calling witnesses is incomplete if the defendant may not present himself or herself as a witness.”

Nelson was found guilty of two additional counts of sexual assault of a child in 2013. In February, she was sentenced to six months in jail and eight years of probation.

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