BENCH BLOG: Client behavior: Enough to draw a tier

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The Wisconsin Supreme Court recently reaffirmed its two-tiered framework for loss of the Sixth Amendment right to counsel. It overruled another case requiring a finding of intentionality and once again declined to mandate warnings to a defendant before forfeiture.

The invitation to revisit the two-tiered system came in State v. Suriano. Jack Suriano, who holds two college degrees and is one credit short of a graduate degree, was arrested and charged with misdemeanor obstructing an officer based on his conduct when the Door County Sheriff’s Department and sanitation officials came to his home with a warrant to take a soil sample.

Fully half of the court’s decision, written by Justice Rebecca Bradley, was devoted to detailing Suriano’s conduct with the court and counsel leading up to forfeiture. That behavior can only be summarized here.

Serial counsel

Because Suriano was indigent, he was represented by an appointed state public defender. Less than a month later, the attorney moved to withdraw. Suriano insisted on calling the attorney to the stand to testify.

In startling testimony in response to Suriano’s own questions, the attorney stated that although his goal was to resolve the case, Suriano’s goals included taking depositions from all parties, exploring every legal and non-legal aspect of the case to make things difficult and frustrating the legal system, and being “an ass.”

Door County Circuit Judge Todd Ehlers granted the attorney’s motion to withdraw. Another SPD was appointed and she, too, quickly moved to withdraw after finding “significant conflict.”

A third SPD was then appointed. Suriano’s pattern of gamesmanship with the court and counsel continued, as did his chronic complaining about counsel and abusive behavior toward counsel. At one point, the third attorney intimated fear of physical assault when he said he would only meet with his client in a place with a metal detector.

Forfeiture

Ehlers eventually granted the third attorney’s motion to withdraw. Ehlers also ruled that Suriano had forfeited his right to counsel.

Ehlers clarified: “By saying that you forfeited your right to have an attorney, that doesn’t mean you can’t get an attorney, but I’m finding your actions have made it clear that you will not cooperate with any attorney.”

Ehlers emphasized that the trial date would not be postponed. He noted it had already been delayed because of the defendant’s behavior toward his attorneys.

Two weeks before the scheduled trial, Suriano told Ehlers he’d found an attorney who would accept a court appointment as his counsel, but the attorney couldn’t appear in court on the trial date. Ehlers denied the request to appoint this attorney.

Suriano went to trial pro se and was found guilty. The Court of Appeals affirmed his conviction.

Two tiers for loss of counsel

Twenty years ago in State v. Cummings, the Supreme Court adopted a two-tier system governing when a criminal defendant’s Sixth Amendment right to counsel can be relinquished. The first tier or method is a defendant’s knowing and voluntary waiver.

The second tier or method is forfeiture, an involuntary loss of the right to counsel due to a defendant’s disruptive and defiant behavior. Forfeiture is triggered when a defendant’s conduct is such that “the court becomes convinced that the orderly and efficient progression of the case is being frustrated.”

Illustrative examples include “(1) a defendant’s manipulative and disruptive behavior; (2) withdrawal of multiple attorneys based on a defendant’s consistent refusal to cooperate with any of them and constant complaints about the attorneys’ performance; (3) a defendant whose attitude is defiant and whose choices repeatedly result in delay, interfering with the process of justice, and (4) physical or verbal abuse directed at counsel or the court.”

Three-tiered system

Suriano, however, asked the court to adopt a three-tiered system using the Goldberg case out of the 3rd Circuit.

In this system, the second tier, forfeiture, is based on a defendant’s bad behavior, and the third tier, waiver by conduct, is premised on a defendant’s dilatory conduct.

One key difference between them is that the second tier does not require any warnings to the defendant before forfeiture, whereas the third tier does.

Analysis

In opting to reaffirm its two-tiered approach, the Supreme Court observed that it is often difficult to discern whether conduct falls under the second or third tier. Suriano’s conduct is a case in point. Was his conduct merely dilatory or was it defiant and menacing?

The court also noted that the Goldberg case pre-dates the Cummings decision, so Cummings was decided with full knowledge of Goldberg’s three-tier system. Moreover, the U.S. Supreme Court “has not rejected” Wisconsin’s two-tiered approach in the 20 years it has been the rule.

Without elaboration, the court declared its two-tiered approach “sound in principle.”

Other holdings

The court went on to overrule State v. Coleman, a Court of Appeals case which required a finding that a defendant intentionally delayed proceedings before a court could order forfeiture of counsel.

It reasoned that a defendant’s purpose might not be readily discernible, and actions that are merely dilatory can nonetheless reach the level of frustrating the orderly and efficient progress of a case.

Lastly, the court rejected Suriano’s argument to adopt the procedure for forfeiture explicated in Justice Janine Geske’s dissent in Cummings.

“In forfeiture cases, loss of the right to counsel occurs by operation of law without the need to ensure a defendant knows he is losing his right and regardless of whether he intends to do so. This is precisely why no warnings are required.”

Dissent

Justice Shirley Abrahamson dissented. She would require the forfeiture procedure outlined in Geske’s dissent in Cummings.

Commentary

Suriano’s pattern of misconduct is precisely the type of behavior that causes attorneys and judges untold frustration. Without a doubt, it seriously impaired “the orderly and efficient progression of the case.” Judge Ehlers correctly found forfeiture of his right to counsel.

While the purpose of Suriano’s conduct was clear from his first attorney’s testimony, it’s more often the case that the motive for such behavior cannot be deciphered. Thus, the court’s overruling of the Coleman case is an important development, one welcomed by trial judges contending with obstructionists.

Although not adopted by the court, the procedure laid out in the Cummings dissent and repeated in Abrahamson’s dissent in this case is worthy of consideration, particularly in felony cases, when the stakes are higher than in misdemeanor matters.