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July 14, 2013

A COMMENT FROM JUDGE ROBERT STEIGMANN:

Conservative commentators (like Mark Levin) and bloggers are completely wrong to criticize the trial judge in the Zimmerman case for questioning the defendant to ensure his decision not to testify is knowingly made. Here’s why.

A defendant’s decision whether to testify is personal to him, just like his decisions whether (1) to plead guilty or not guilty and (2) to have a jury trial or a bench trial. His attorney can and should advise him about his decision to testify, but that decision remains the defendant’s to make.

Many cases have arisen in which convicted defendants have filed postconviction petitions claiming their rights were violated because they wanted to testify and their attorneys wouldn’t let them. Similarly, many other cases have arisen in which convicted defendants claim that they never wanted to testify but their lawyers forced them to. An often troubling aspect of these cases is that what the defendants allege is true because their lawyers, out of ignorance, did not know that the decision about testifying is personal to the defendant.

As a judge on the Illinois Fourth District Appellate Court, I wrote a decision 14 years ago urging trial judges to make a record regarding a defendant’s decision to testify precisely as the trial judge did with George Zimmerman, which, of course, must take place out of the presence of the jury. (See People v. Frieberg, 305 Ill. App. 3d 840, 852, 238 Ill. Dec. 964, 973, 713 N.E.2d 210, 219 (4th Dist. 1999).) I’m gratified to report that trial judges throughout Illinois are following my advice and admonishing defendants accordingly.

Happily, it doesn’t matter.

UPDATE: Prof. Seth Barrett Tillman writes:

Fourteen years ago, in People v. Frieberg, 305 Ill. App. 3d 840, 852 (4th Dist. 1999), Judge Steigman wrote:

To defuse this explosive situation [involving post-conviction collateral attack on a conviction for ineffective assistance of counsel involving the defendant’s right to testify or not to do so], we urge trial courts in every criminal case to take the few seconds needed, after the State has rested its case in chief and before the presentation of the defense case, to admonish the defendant personally that he alone possesses the right to choose whether to testify on his own behalf, and that he should make that decision after consulting with counsel. Trial courts should emphasize to the defendant that whatever trial counsel’s advice on this point may be, counsel cannot force the defendant to testify, nor can counsel prevent the defendant from testifying. For good measure, the court should once again inquire of the defendant before he testifies (or the defense rests without his testimony) to ensure that his decision about this matter was his alone and not coerced.

Had Judge Nelson followed Judge Steigman’s wise set of precautions no one would have had cause to complain. But Judge Nelson did not do that.

Judge Nelson did not merely admonish Zimmerman to the effect that he “personally … possesses the right to choose whether to testify”. Frieberg’s point is to make sure that the Defendant acts intelligently, knowingly, and voluntarily when the defendant avails himself of his right to testify or not to testify, and to make sure that the decision is ultimately made by the Defendant not the lawyer. But Nelson was not merely giving Zimmerman information about his rights: Nelson pressed Zimmerman as to what choice he was going to make in regard to testifying. Nelson specifically pressed Zimmerman for an answer as to whether he would testify or not. When a cautious Zimmerman told Judge Nelson that he had not yet made up his mind, Judge Nelson then pressed Zimmerman for a specific date & time as to when he would make up his mind. All this happened before the defense rested its case. The obvious time to waive the right to testify, if Zimmerman was to choose to waive it, was at the end of the trial (as Judge Steigman specifically indicated in Frieberg). Why? Because a decision to testify or not is primarily contingent on what the defense’s remaining witnesses say on direct and on cross-examination, and on what the State’s remaining rebuttal witnesses will say. Pressing Zimmerman for an answer involving his right to testify before that last witness comes in was inconsistent with Steigman’s position in Frieberg. At least that is my reading of Frieberg. But if I have read Frieberg incorrectly, I am certainly open to being corrected (and admonished) by its author.

Also, Zimmerman’s lawyers did more than object: they tried to put the reasons for their objection on the record. They were denied a full and fair opportunity to do so. That too seems odd. Very odd.

Perhaps Judge Steigmann will view the actual colloquy (http://nation.foxnews.com/2013/07/11/greta-zimmerman-judge-was-way-out-line), and let us know if he still thinks Judge Nelson’s decision to press Zimmerman — at that time and in that way and in that tone — was consistent with best practices, his prior Frieberg opinion, and, indeed, consistent with anything he has seen or heard before in any court of record. Judges are loathe to publicly criticize one another. But if one state judge is going to defend another state judge in order, ostensibly, to facilitate the public’s (and the bar’s) education, than Judge Steigmann should make clear if he actually heard the Nelson-Zimmerman colloquy in full.

Well, the good news, as I say, is that it turned out not to matter. But it certainly did seem as if the judge was in the prosecution’s corner.

MORE: Judge Steigmann responds: “Prof. Tillman makes some good points, particularly regarding the timing and tone of the judge’s admonitions to Zimmerman. Best practices would be for the trial judge to engage in this discussion after the defense has called all its witnesses except for the defendant. The point of my initial message was to emphasize that trial judges should always question defendants to ensure that they understand the personal nature of this decision, even if the admonitions in this case were hardly ideal.”

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