April 28, 2017 – A criminal defendant forfeited his constitutional right to counsel when he failed to cooperate with three different lawyers appointed to represent him, the Wisconsin Supreme Court has ruled.

The U.S. and Wisconsin constitutions guarantee the right to counsel for criminal defendants who cannot afford an attorney. Most are appointed public defenders.

Jack Suriano obtained appointed counsel after he was arrested for obstructing an officer, including deputies and sanitation officials who came to his home with a warrant to collect soil samples. After the first appointed counsel withdrew, the State Public Defender (SPD) appointed another lawyer, then one more after that attorney withdrew.

All three successively moved to withdraw, citing conflicts and differences with Suriano. The third appointed lawyer filed a motion to withdraw after Suriano emailed the SPD office and accused the lawyer of lying and failing to legitimately represent him.

The record indicates Suriano made it increasingly difficult for his lawyers to adequately represent him based on his noncooperation and demands, and the court warned Suriano that he could forfeit his right to an attorney if he continued to play games.

Ultimately, the circuit court ruled that Suriano forfeited his right to public representation, concluding that his actions made it clear that he would not cooperate with any attorney.

The SPD denied Suriano’s request for a fourth SPD appointment. The circuit court also refused to give Suriano a court-appointed attorney and told Suriano he would have to hire an attorney for his upcoming trial or represent himself on the matter.

Representing himself in a one-day jury trial, the jury found him guilty of obstruction. He received a $100 fine and 10 days in jail, stayed if he paid the fine within 60 days.

Majority Rules

Suriano appealed with a SPD-appointed appellate lawyer, and the appeals court affirmed. In State v. Suriano, 2017 WI 42 (April 27, 2017), a 5-2 majority affirmed the appeals court, concluding Suriano forfeited his right to public representation.

The majority noted that indigent defendants can forfeit the right to counsel through manipulative or disruptive behavior, when multiple attorneys withdraw based on the client’s noncooperation, or if their own conduct delays or interferes with the process.

“[T]he triggering event for forfeiture is when the ‘court becomes convinced that the orderly and efficient progression of the case [is] is being frustrated,'” wrote Justice Rebecca Bradley, citing the court’s 1996 decision in State v. Cummings.

Suriano urged the court to adopt a different approach to the issue of waiving or forfeiting the right to public counsel, an approach adopted by the U.S. Court of Appeals for the Third Circuit in U.S. v. Goldberg. But the majority declined to do so, noting Goldberg was decided before Cummings and the supreme court, in 1996, declined to follow it.

“We acknowledge the substantial body of case law on this issue since our decision in Cummings, but we remain unconvinced that a switch to Goldberg’s three-tiered approach is warranted,” Justice R. Bradley wrote.

The majority opinion noted that the U.S. Supreme Court has not decided this issue, but U.S. Supreme Court Justice Sonia Sotomayor authored an opinion consistent with the Cummings approach when she was on the Second Circuit Court of Appeals bench.

“The Second Circuit’s analysis convinces us we got it right in Cummings,” wrote Justice R. Bradley, concluding Suriano forfeited his constitutional right to public counsel.

“The circuit court found that Suriano was playing games and manipulating the case to delay the trial,” Justice R. Bradley wrote. “Suriano did not say he wanted to represent himself, but his repeated dilatory tactics and abusive behavior expressed loudly and clearly that he would make it impossible for any attorney to represent him.”

Dissent

Justice Shirley Abrahamson dissented, joined by Justice Ann Walsh Bradley, concluding that when the relinquishment of the constitutional right to counsel is at stake, an in-court, on-the-record-colloquy should be required by the circuit court.

“I would require the circuit court record to reflect that the circuit court made the accused aware of the seriousness of the charges he or she faces, the potential penalties that may be imposed upon a finding of guilt, and the difficulties and disadvantages of self-representation,” wrote Justice Abrahamson, noting Suriano did not receive this warning.

She noted that former Wisconsin Supreme Court Justice Janine Geske held the same view when she dissented in Cummings, a dissent that Abrahamson joined.

When the court decided Cummings, Abrahamson noted, case law did not require a colloquy in order for a defendant to voluntarily waive the right to counsel. The colloquy became mandatory in 1997. Abrahamson said the colloquy should be required in all cases involving the relinquishment of the right to counsel, involuntary or not.

The circuit courts are already familiar with the colloquy process, she noted. “Requiring the colloquy in all cases involving the relinquishment of counsel is not too much of a burden on the circuit courts and might even be viewed as a simplification of process.”