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State’s high court: Defendant can forfeit right to testify

By: Erika Strebel, [email protected]//March 3, 2015//

State’s high court: Defendant can forfeit right to testify

By: Erika Strebel, [email protected]//March 3, 2015//

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The Wisconsin Supreme Court has ruled that a defendant’s right to testify can be forfeited.

The decision is significant because the U.S. Supreme Court has not addressed that issue, said Julius Kim, criminal defense attorney at Kim & LaVoy SC.

Kim said the ruling puts defense attorneys on notice that it is possible for a defendant to forfeit the right to testify.

“We need to be able to counsel our clients in a way that they understand that they need to follow the court’s rules,” he said, “and if they fail to do that, the court can deny that right.”

Madison criminal defense attorney Stephen Meyer agreed that the court’s decision was significant.

“It’s huge because I think it creates a slippery slope that allows trial judges to take one of the fundamental rights the accused has …. because they felt that a defendant was going to present irrelevant evidence,” said Meyer. “The accused was going to present at least some relevant evidence, and who knows what his behavior would have been on the witness stand.”

The decision upholds the conviction of Eddie Lee Anthony, of Milwaukee, who is serving a life sentence for killing his girlfriend, Sabrina Junior, with an ice pick.

Anthony claimed he acted in self-defense and planned to testify at trial. But the judge didn’t allow it. That formed the basis of his appeal.

Anthony was convicted in 2010 in the stabbing death of Junior. According to court records, he stabbed her 45 times during an argument in their Milwaukee home while their children hid in a closet in the other room.

The court ruled 6-1 to affirm the Court of Appeals’ decision.

Chief Justice Shirley Abrahamson, in her dissenting opinion, wrote that that the Court of Appeals erred in not allowing Anthony to testify and considering his testimony irrelevant to his self-defense. She also wrote that denial of a defendant’s right to testify is not subject to harmless error review.

Meyer said he agreed with Abrahamson. Whether a defendant has the right to testify, he said is one of the few decisions lawyers are not allowed to make.

“My concern is the impact statewide,” he said, “and the ability for trial court judges to engage in mischief in similar circumstances.”

He said the case reminded him of the 1969 trial of the Chicago Seven, in which one defendant was gagged and chained in front of the jury.

“My concern is that they see this opinion as giving them the green light to take away an accused’s right to testify in order to keep control of the proceedings,” Meyer said.

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