Wisconsin Supreme Court rules too late for defendant to testify.

• Author: Ziemer, David

Byline: David Ziemer

A recent federal court decision requires state courts to exercise more caution when a defendant who has waived the right to testify changes his mind after the defense has rested. David Arredondo was charged and tried in Wisconsin state court with first-degree intentional homicide and second-degree sexual assault. In a lengthy colloquy, he waived his right to testify. After the defense rested, and after the state dismissed its rebuttal witnesses, Arredondo informed the court that he wanted to testify. The trial court did not allow him to revoke his waiver, and he was found guilty. He appealed, but the Wisconsin Court of Appeals affirmed, in a published decision. State v. Arredondo, 2004 WI App 7, 269 Wis.2d 369, 674 N.W.2d 647, and the Wisconsin Supreme Court denied review. Turned to Federal Court Arredondo sought relief in federal court, but U.S. District Court Judge Lynn Adelman denied his petition for habeas corpus. However, Judge Adelman was critical of the analysis of the court of appeals. Relying on Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), and Ortega v. O'Leary, 843 F.2d 258 (7th Cir. 1988), Adelman found several of the state court's considerations to be inappropriate. The court of appeals gave the following reasons for upholding the trial court's denial of Arredondo's request to testify: courts have discretion as to whether to reopen the evidentiary phase of a case; substantial prejudice would exist to the state and the system and the jury in order to reopen the case; Arredondo voluntarily decided not to testify; the trial court's finding that Arredondo was attempting "to manipulate the system"; and Arredondo failed to establish that his testimony had value but "simply told the court that he wanted to testify because 'the only one that can defend David Arredondo is David Arredondo.'" Adelman first noted that, while a court has discretion in whether to allow the evidence to be reopened, that discretion is limited by Rock, and the court should allow the defendant to testify "unless doing so would prejudice the prosecution or interfere with the orderly flow of the trial." Earlier Decision Adelman also found it irrelevant that Arredondo had earlier decided not to testify, and that Arredondo was attempting to manipulate the system. Adelman wrote, "Under Rock, the right to testify is no less fundamental when the defendant is contumacious (or mendacious) as when he is sympathetic." Finally...