Probationer
can refuse
to participate in treatment
By
David Ziemer
Wisconsin Law Journal
Nov.
27, 2002
The
state may not revoke probation because the defendant refuses to
admit his crime in court-ordered sex offender treatment, until
the time for a direct appeal has expired or an appeal has been
denied, the Wisconsin Supreme Court held on Nov. 21.
The
court also held that the defendant need not challenge the condition
of probation on direct appeal or waive the challenge, but can
collaterally attack the condition in the revocation proceeding.
Gary
Tate was convicted of repeated sexual assault of a child after
a jury trial in which he testified and denied the offense. He
was placed on probation and ordered into sex offender treatment.
As
a part of the treatment program, he was required to admit the
offense. He refused, however, asserting his Fifth Amendment right
against self-incrimination.
As
a result, he was terminated from the program. He then moved to
modify the conditions of probation, requesting that his treatment
be stayed until after his appeal. The motion was denied, and he
did not appeal this denial to the court of appeals.
In
the meantime, his probation was revoked for failure to cooperate
with treatment. On certiorari review of the probation revocation,
Washington County Circuit Court Judge Leo F. Schlaefer upheld
the revocation.
On
appeal, the court of appeals affirmed the revocation in a published
decision, State of Wisconsin ex rel. Tate v. Schwarz, 2001 WI
App 131, 246 Wis.2d 293, 630 N.W.2d 761.
The
court of appeals agreed with Tate that his Fifth Amendment rights
were violated, but held that the objection had been waived, because
he had not appealed the denial of his motion to modify the conditions
of probation.
The
Supreme Court granted review, the State conceded error, and the
court reversed in a unanimous decision by Justice Diane S. Sykes.
Self-incrimination
The
court concluded that its previous holding in State v. Evans, 77
Wis. 2d 225, 234, 252 N.W.2d 664 (1976) - that a probationer cannot
be revoked for invoking his privilege against self-incrimination
absent a grant of immunity - compels a holding that the revocation
of Tate’s probation was unconstitutional.
In
Evans, the court held that compelled admissions about particular
instances of criminal activity by a probationer given in response
to questions by a probation agent or at a probation revocation
hearing are inadmissible against the probationer in subsequent
criminal proceedings. Evans, 77 Wis.2d at 235-36.
|
What
the court held
Case:
State ex rel. Tate v. Schwarz, No. 00-1635.
Issue:
Can a probationer whose appeal rights are still intact be
compelled to incriminate himself in court-ordered sexual
offender treatment? Can a probationer make a collateral
challenge to the constitutionality of a condition of probation
when he did not preserve a challenge to the conditions via
direct appeal of the criminal conviction?
Holding:
No. The probationer must be given use immunity for such
statements. Yes. Failure to appeal the conditions in the
criminal case does not waive objections to the conditions
in a revocation proceeding.
Counsel:
Jerome F. Buting, Pamela S. Moorshead, Brookfield, for appellant;
William C. Wolford, James E. Doyle, Madison, for respondent.
|
In
Evans, the court determined that the state could compel a probationer
to answer self-incriminating questions from his probation or parole
agent only if he is protected by a grant of immunity that renders
the compelled testimony inadmissible in a criminal prosecution.
Applying
Evans, the court concluded that Tate’s Fifth Amendment rights
were violated. The court reasoned, "Tate’s right to
appeal had not yet lapsed at the time he was required to admit,
during sex offender treatment, to the crime of which he was convicted.
The DOC had required him to sign a release allowing all of his
statements during treatment to be used in ‘any court proceeding.’
Future criminal proceedings were possible in his case, as well
as the potential for a perjury prosecution arising out of his
trial testimony. The price of remaining silent was probation revocation.
Accordingly,
the admissions demanded of him by his treatment program were both
self-incriminating and compulsory. Revocation of Tate’s probation
for refusing to admit his crime of conviction under these circumstances
violated his Fifth Amendment right against self-incrimination."
Rebuttal
and Impeachment
The
court then expanded the holding in Evans to encompass rebuttal
and impeachment evidence, as well, consistent with U.S. Supreme
Court jurisprudence.
In
Evans, the court expressly limited the immunity rule to direct
evidence, and held that it would not apply to use of the probationer’s
self-incriminating statements in rebuttal or impeachment of inconsistent
testimony in a criminal proceeding.
Subsequent
to Evans, however, the U.S. Supreme Court held in Minnesota v.
Murphy, 465 U.S. 420, 435 (1984), that, if a probationer is required
to choose between making incriminating statements and jeopardizing
his conditional liberty by remaining silent, his statement cannot
be used for any evidentiary purpose in a criminal prosecution.
Accordingly,
the court held that any statements a probationer in Tate’s
position makes under a grant of immunity are forbidden from being
used in any way.
Waiver
The
court then held that Tate did not waive the Fifth Amendment challenge
by failing to appeal its denial by the sentencing court.
Rejecting
the court of appeals’ reasoning, the court concluded, "The
court of appeals’ waiver rule creates a strange procedural
anomaly in which a probationer must seek modification, in the
circuit and appellate courts, of any condition of probation that
he is alleged to have violated in order to avoid waiving the right
to argue against revocation based upon that violation. And the
probationer is required, under such a rule, to pursue the modification
in the circuit and appellate courts while simultaneously undergoing
revocation and pursuing certiorari review once revoked."
The
court noted that the court of appeals cited no authority for its
conclusion on waiver, and the parties agreed that none exists.
Further,
the court noted that the procedure used by Tate was identical
to that in Evans - he contested probation revocation by filing
a petition for a writ of certiorari in the circuit court and then
appealed the circuit court’s denial of his petition.
The
court decided, "We did not require in Evans that the defendant
first seek relief from the conditions of his probation in the
circuit and appellate courts before his constitutional challenge
to his revocation would be entertained. We decline to impose such
a requirement now." Accordingly, the court reversed.
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here for Case Analysis.
David
Ziemer can be reached by email.
