State v. Michael L. Washington, 2016AP000238-CR

Michael L. Washington was charged with burglary and obstructing an officer; repeated breakdowns with appointed counsel produced several withdrawal motions.
On the eve of a scheduled jury trial Washington behaved disruptively, told the court his attorney "is not representing me," and left the courtroom; he was returned to jail and refused repeated offers to come to court for trial.
The circuit court determined Washington had waived his right to be present and proceeded with jury selection and a one-day trial in his absence; Washington was offered opportunities to consult counsel and to return at least five times and refused each.
The jury convicted Washington on both counts; he was later sentenced in person and moved for postconviction relief claiming a statutory violation under Wis. Stat. § 971.04(3).
The circuit court and court of appeals rejected Washington’s statutory argument; the Wisconsin Supreme Court affirmed, holding § 971.04(3) does not limit other means of waiver and that Washington waived his statutory right by conduct.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Wis. Stat. § 971.04(3) bars trying a defendant who was not present when the jury was sworn	State: Court may proceed when defendant voluntarily absents after trial begins under § 971.04(3) and constitutional waiver doctrine	Washington: § 971.04(3) requires the defendant to be present at the beginning of trial (jury sworn) and only then permits waiver; he was not present then, so trial violated statute	Court: § 971.04(3) is aimed at absconding after the trial begins but does not limit a defendant’s ability to waive presence by conduct; § 971.04(3) not controlling here
Whether Washington’s absence was a waiver (knowing, voluntary) or merely forfeiture (unintentional), making the trial invalid	State: Washington repeatedly refused to participate after being informed of his rights and offered opportunities to return; his conduct constitutes waiver	Washington: his absence occurred before the jury was sworn and thus cannot be treated as a permissible post-commencement absence under § 971.04(3)	Court: Washington knowingly and voluntarily waived the statutory right under § 971.04(1) by conduct; best practice is an on-the-record colloquy but one was not required here due to safety and manifest manipulation

State v. Divanovic, 200 Wis. 2d 210 (Ct. App. 1996) (waiver of right to be present may be found from disruptive conduct and repeated warnings/offers)
State v. Dwyer, 181 Wis. 2d 826 (Ct. App. 1994) (defendant tried in absentia after failing to return from recess; court of appeals granted new trial under § 971.04(3))
State v. Koopmans, 210 Wis. 2d 670 (1997) (defendant absent for sentencing; statute requires presence at sentencing)
State v. Miller, 197 Wis. 2d 518 (Ct. App. 1995) ("beginning of trial" defined as when jury is sworn for purposes of § 971.04(3))
Illinois v. Allen, 397 U.S. 337 (1970) (a defendant may lose right to be present by disruptive or obstructive conduct)
United States v. Benabe, 654 F.3d 753 (7th Cir. 2011) (federal rule interpreted to treat the day jury selection begins as the commencement for presence rules)