Jury Trial Issues -- The Right to a Public Trial

By John DiMotto

Every criminal defendant is entitled to a public trial from jury selection through the verdict. This right is guaranteed by the Sixth Amendment Right to a Public Trial -- "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...in the State and district wherein the crime shall have been committed..." as well as Article I, Section 7 of the Wisconsin Constitution -- "In all criminal prosecutions the accused shall enjoy the right to a speedy public trial by an impartial jury..."

The Right to a Public Trial promotes the presumption of openness that attends court proceedings. The values served are to:

1) ensure a fair trial.

2) remind the court and the prosecutor of their responsibilities toward the criminal defendant.

3) encourage witnesses to come forward.

4) discourage perjury.

Where values are implicated and closure is not trivial, exclusions must be justified. In order to justify closure:

1) The party seeking closure must show an overriding interest which is likely to be prejudiced by a public trial.

2) Closure must be carefully tailored to protect that interest.

3) Alternatives to closure must be considered by the court, and

4) The court must make findings sufficient to justify closure.

Closure of the entire courthouse, thereby denying the public access to a courtroom during a trial, violates a defendant's right to a public trial. The Right to a Public Trial is a basic tenet of our judicial system. The principle is that justice cannot survive behind walls of silence. However, where the unjustified closure is trivial there may not be a constitutional violation. Each case must viewed individually -- case by case.

It is important to note that the Right to a Public Trial is not only tested when the entire proceedings are closed to everyone. It is also tested when there is exclusion of just certain people (ie. family members of the defendant) and if only for part of the trial.

In Wisconsin, two recent cases that have addressed the Right to a Public Trial are State v. Vanness, 304 Wis.2d 692 (Ct. App. 2007) and State v. Ndina, 315 Wis.2d 653 (2009).

In the final analysis, the public has not just a right to know but a right to be present in order to know.

Jury Trial Issues -- Polling the Jury in a Criminal Case

By John DiMotto

One of the most important rights that any party involved in litigation has is the right to a jury trial. The beauty of the American system of justice is the right to have one's case decided by one's peers. 6 or 12 people from one's community are empanelled to:

1) hear all the evidence;

2) decide what the fact actually are by assessing the credibility of witnesses and the weight of the evidence;

3) apply the law, the legal principles applicable to the facts;

4) render a verdict by answering a question or questions on a Verdict/Special Verdict form.

The American Jury System is the envy of the world. Judges in other jurisdictions "thirst" for our system of justice. (Many judges from Wisconsin, including myself and my wife, Judge Jean DiMotto, have gone to countries throughout the world to discuss our justice system. In every country their judges have been on the edge of their seats taking in what it really means to "do justice.")

Today, I want to start on the "back end" of a jury trial -- taking the verdict in a criminal case.

When a jury arrives a a verdict, the jury is brought into the courtroom and the verdict is read in open court either by either the Court Clerk, the Judge or the Jury Foreperson. After it is read, it is customary for the judge to collectively ask the jury if what was read is their verdict. After the collective polling, a defendant has the right to have the jurors individually polled - although he has no right to cross examine them on their verdict. see State v. Cartagena, 140 Wis.2d 59 (Ct. App. 1987). Collective polling is not sufficient if the defendant wants individual polling. see State v. Wojtalewicz, 127 Wis.2d 344 (Ct. App. 1985).

The purpose of polling a jury is to ensure that the verdict, as read, is the verdict of each and every one of the twelve jurors - to test uncoerced unanimity of the verdict. see State v. Kircher, 189 Wis.2d 392 (Ct. App. 1994). An ancillary purpose of individual polling is to allow jurors to change their mind. see U.S. v. Shepard, 576 F.2d 719 (7th Cir. 1978). The act of polling the jury safeguards the right to a unanimous verdict by giving each jury the opportunity to dissent although previously agreeing or to state that assent was merely an accommodation. A juror may dissent at any time before the verdict is received and properly recorded.

The right to poll a jury is a corollary to the right to a unanimous verdict. see State v. Weise, 162 Wis.2d 507 (Ct. App. 1991). It is a significant right. see State v. Behnke, 155 Wis.2d 796 (1990). Because the return of a verdict is a critical stage of the proceedings, a defendant has the right to counsel at that time. In fact, where defense counsel's absence cause a defendant to lose the right to poll a jury, the conviction must be reversed. see State v. Smith, 51 Wis. 615 (1881).

The decision whether to poll is one that is delegated to defense counsel. However, the failure to request polling the jury will almost always result in a claim of ineffective assistance of counsel. Most judges will sua sponte poll the jury to ensure unanimity.

The trial court should carefully and delicately question a juror who during polling creates some doubt as to his/her vote to see if there is, in fact, doubt. If there is doubt, the court has three options:

1) Direct jury to retire to jury room and resume deliberations.

2) Declare a mistrial.

3) Carefully interrogate the juror about ambiguous or ambivalent assent.

The threshold question in polling is whether there was assent. If not, court then must determine whether further deliberations are necessary. see State v. Duke, 303 Wis.2d 175 (Ct. App. 2007). The court is only to question regarding whether the juror agrees or not. The court cannot go beyond the issue of "assent." see State v. Raye, 281 Wis.2d 339 (2005).

The right to poll a jury is an absolute right. It must be honored by the trial court!

Termination of Parental Rights Law in Wisconsin - Adoption and Safe Families Act

By John DiMotto

In October, 1997 the United State Congress passed the Adoption and Safe Families Act (ASFA). One month later, President Bill Clinton signed the legislation into law.

ASFA was enacted to address problems in the foster care system. It changed how child welfare was viewed. It focused on the health and safety of children as opposed to reuniting children with birth parents. ASFA puts children first and the needs and rights of birth parents second.

In all cases involving children who are placed out of their parental home -- CHIPS and TPR cases -- there are certain obligations and duties that must be undertaken by Child Welfare Agencies. In Milwaukee County that agency is the Bureau of Milwaukee Child Welfare (BMCW). Anytime a child is placed out of the parental home, the Court is required to undertake an ASFA analysis to ensure that the interests of the child and parents are fully protected in light of the potential for TPR. The analysis requires the Court to determine if:

1) Reasonable efforts have been made by the BMCW to prevent the removal of the child from the parental home, while assuring that the child's health and safety were the paramount concerns.

2) Reasonable efforts have been made by the BMCW to permit the return of the child safely to the parental home.

3) Placement in the child's parental home is contrary to the welfare of the child.

4) Reasonable efforts have been made by the BMCW to provide services and involve appropriate service providers in meeting the needs of the child and the parents.

5) Reasonable efforts have been made by the BMCW to place the child safely with other out of home siblings.

6) Reasonable efforts have been made by the BMCW to facilitate safe visitation among siblings where they are not placed together.

7) Reasonable efforts have been made by the BMCW to achieve the permanency plan goals, including through out of state placement if appropriate.

ASFA puts the onus on both the parents and the Child Welfare Agency to make every reasonable effort to work together in the best interest of the child.

Termination of Parental Rights Law in Wisconsin - Permanency Planning

By John DiMotto

Whenever a child is removed from the parental home, federal and state law requires that a Permanency Plan be created and implemented to ensure that a child is reunified with the child's family whenever appropriate, or that the child quickly attain a placement or home providing long term stability.

The first Permanency Plan must be prepared and filed with the court within 60 days after the child is removed from the parental home. Furthermore, the plan must be updated and reviewed by the court every six months until the child is returned to the parental home or until permanency is achieved by an adoption following the termination of parental rights.

The Permanency Plan must address:

1) The names of all of the interested parties.

2) Date of removal.

3) Description of services offered and provided to address the circumstances.

4) Basis for the current placement.

5) Statement as to availability of a safe and appropriate family placement.

6) Statement of reasonable efforts to reunite family.

7) Educational information.

8) Medical information.

9) Plan for future.

10) Goals of the Permanency Plan.

11) Conditions that must be met to ensure safe return to parental home.

12) Statement as to ability of child to consult with court regarding the Permanency Plan.

At the Permanency Plan Review Hearing, the court must consider the following:

1) Continuing necessity for and the safety and appropriateness of the out of home placement.

2) Extent of compliance with the most recent plan by agency, service providers and family.

3) Efforts of Agency to provide appropriate services.

4) Progress towards eliminating causes that prevent return of child to parental home.

5) Potential date by which child can be returned to parental home.

6) Appropriateness of Permanency Plan if child has been out of parental home for 15 of the most recent 22 months.

7) Whether reasonable efforts have been made to achieve the most recent Permanency Plan goals, including through out of state placement if appropriate.

At the hearing, the court will hear from:

1) Attorney for State.

2) Social worker from Agency.

3) Parents.

4) Parents attorneys.

5) Guardian ad Litem.

6) Child, if age appropriate.

What is of the utmost importance is that the Agency involved in monitoring the case, in Milwaukee County it is the Bureau of Milwaukee Child Welfare (BMCW), must make reasonable efforts towards reunification or, if not viable, a permanent placement to provide stability for the child. If the court determines that the Agency has not done "reasonable efforts", their failure to comply with their duties will result in the loss of federal funds which is provided to the states to achieve permanency.

The Permanency Plan Review Process ensures that "no stone is left unturned" in the drive to provide safe permanency for vulnerable children.

In my next blog, I will discuss the Adoption and Safe Families Act (ASFA) and its role in TPR cases.

Termination of Parental Rights Law in Wisconsin -- The Dispositional Phase

By John DiMotto

If the trier of fact (jury or judge) in the Fact Finding Phase of a TPR action, finds that involuntary grounds have been proven by clear, convincing and satisfactory evidence, the case then proceeds to a Dispositional Phase. In the Dispositional Phase, the judge alone evaluates all of the evidence submitted and determines whether the Best Interests of the child warrants termination as the disposition. "Best Interests of the Child" is the "polestar" in the Dispositional Phase.

In the Dispositional Phase, the Court (ie. judge) must make findings of fact from the evidence submitted in determining what is in the best interest of the child. In the Dispositional Phase:

1) The Court may take judicial notice of the evidence offered in the Fact Finding Phase.

2) An Agency Court Report should be introduced.

3) The Rules of Evidence are relaxed -- not unlike at sentencing in a criminal case.

The Agency Court Report address:

1) The social and medical history of the child, including prior court involvement.

2) Statement of services needed.

3) Likelihood of adoption.

4) Plans for permanency.

Relevant evidence may include:

1) Expert testimony.

2) Other evidence having probative value regarding disposition.

3) Foster parent input.

In considering the Best Interest Standard, the Court looks at the "egregiousness" of the parent's conduct and must consider the following factors:

1) Likelihood of adoption after TPR.

2) Age and health of child.

3) Time child has been removed from the parental home.

4) Whether child has a substantial relationship with parents.

5) Whether child has a substantial relationship with other family members.

6) Whether it will be harmful to sever substantial relationships.

7) Wishes of the child.

8) Duration of separation of child from parents.

9) Whether child will be able to enter into more stable and permanent family relationship as result of the termination considering results of prior placements, current conditions of placement and likelihood of future placements.

In light of the above, the Court determines whether Best Interests dictates termination or some alternative such as:

1) Guardianship.

2) Dismissal with continuation of CHIPS order.

There is a debate as to whether there is a specific burden of proof (ie. preponderance, clear and convincing or beyond a reasonable doubt) in the Dispositional Phase. In the Fact Finding Phase, by statute, the burden of proof is clear, convincing and satisfactory evidence. However, no where in the statutes or in case law is there a reference to a specific burden of proof in the Dispositional Phase. There are those who say "Best Interests" governs, and that there is no specific burden of proof. While that seems to make sense, in CHIPS cases, where Best Interests drives the Disposition, case law states that there IS a burden of proof -- preponderance of the evidence. If there is a specific burden of proof in a CHIPS case, it would seem that there should be one in a TPR case. If there is, given the severe consequence of termination -- a civil death penalty, an argument can be made that it should be clear and convincing just as it is in the Fact Finding Phase. However, this is an unanswered question.

In my next blog, I will look at Permanency Plan Reviews -- hearings that are mandated by federal law to ensure that permanency is obtained for children whose parental rights have been terminated.

Blog Will Resume Next Week

By John DiMotto

I was on vacation the week of 9/6 and at a juvenile law judicial seminar this week and have not been able to blog. I will "return to action" the week of 9/20.

Termination of Parental Rights Law in Wisconsin -- The Fact Finding Phase

By John DiMotto

There are two phases to a termination of parental rights (TPR) action;

1) The fact finding phase, where a jury or a judge determines whether "grounds" exist for termination. The key consideration in this phase is on the conduct of the parents. and,

2) The dispositional phase, where, if "grounds" are found, a judge determines whether to terminate or consider an alternative such as guardianship or continued CHIPS (child in need of protection or services) jurisdiction. The key consideration in this phase is on the best interests of the child.

In today's blog, I will discuss the fact finding phase.

The fact finding phase is a "trial." The rules that govern the trial are as follows:

1) The parents and the child have a right to request a jury trial. (The request on behalf of the child is made by the child's Guardian ad Litem -- a lawyer appointed by the court to represent the best interests of the child.) If either of the parents or the GAL request a jury, the grounds will be determined by a jury of 12. Since a TPR action is a civil case, the jury does not have to be unanimous in its decision to return a verdict. A "5/6 verdict" is acceptable; that is only 10 of the 12 jurors need agree to all questions on the verdict. If the right to a jury trial is waived, then the judge will be the trier of fact and decide whether "grounds" exist.

2) The burden of proof in the fact finding phase is on the petitioner, usually the assistant district attorney who brings the case. The middle burden of proof -- clear, convincing and satisfactory evidence -- applies.

3) While there are multiple grounds that a TPR action can be based upon, most cases proceed on the ground of "continuing CHIPS" -- that is, there has been in place a court order in a CHIPS case that the parents have not complied with or on the ground of "failing to assume parental responsibility." When these are the grounds alleged, proof usually entails a broad spectrum of evidence of the life of the parents. It can involve criminal conduct, drug use and a lack of commitment towards one's family. Because of this broad spectrum, the fact finding phase can take 4 or 5 days.

4) The rules of evidence apply in the fact finding phase.

5) The rules regarding jury selection in Chapter 757 and 805 apply in a TPR action.

6) Evidence regarding what is in the best interest of the child is not the consideration in this phase. The focus is on the parents. If grounds are found, then in the dispositional phase the focus in on the child.

In a fact finding phase, the trier of fact - either a jury or the judge - is presented with evidence that focuses on the good and the bad of a person as a parent. It is not pretty.

In my next blog, I will discuss the dispositional phase of a TPR case.