Have you heard the legal joke about the man accused of murdering his parents who asked the judge for mercy on the grounds that he was an orphan?
Well, meet David Shanks. He’s the alleged drug dealer and criminal defendant who refused to attend his trial in Wisconsin federal court and then asked an appeals court to overturn his conviction because he wasn’t present for his trial.
Jailhouse lawyers like Shanks often think they knew more than they do and bite off more then they can chew.
For example, there was the defendant in Champaign County Circuit Court who was unhappy with how things were proceeding before then- Circuit Judge Robert Steigmann, whose courtroom was on the second floor. The defendant told Steigmann he was going to take his complaints to a higher court, meaning that of then-Circuit Judge Harold Jensen, whose courtroom was on the third floor.
But there’s sometimes a method to their madness. Given the bad facts they face, what’s the harm in trying to pull a fast one?
That’s apparently what Shanks thought because as his case was getting close to trial, he suddenly decided to fire his court-appointed lawyer, profess not to understand what was going on and announce that he saw no need to attend a trial.
Changing his tune
Shanks was charged with participating in a drug distribution conspiracy that led to drug overdoses and deaths.
Even more aggravating was the fact Shanks was on supervised release for a prior drug crime when he was arrested on new drug conspiracy charges.
He initially cooperated with the process, appearing at a February 2018 arraignment hearing with his lawyer.
But a couple months later, Shanks dismissed his lawyer and professed to have no clue as to what was happening or why.
Noting signs that Shanks was not cooperating, the judge issued a written order to him to appear at trial. Shanks “refused to accept” the order, a recent appellate court decision noted.
What was Shanks’ point?
Federal rule of criminal procedure 43 requires a defendant to be physically present at the beginning of the trial. If that doesn’t happen, a defendant might have a valid issue on appeal.
Aware of rule 43, the judge, a court reporter and a lawyer began Shanks’ trial outside Shanks’ cell.
Judge William Griesbach then proceeded to explain circumstances to Shanks, who continued to express a lack of awareness of what was going on.
“I don’t understand these proceedings.”
“I don’t understand what I have to come to trial for.”
“The magistrate judge read the indictment, but I did not understand it.”
The court record goes on at length on the issue of the judge’s question, “Are you willing to come to court to attend your own trial?”
“In total, the judge asked Shanks more than 10 times if he would attend trial cooperatively and received no reply. ... The judge found that by ‘disruptive conduct’ Shanks had waived his right to attend trial. To avoid harm to Shanks or others, the judge did not use force to extract Shanks,” the appeals court justices wrote.
The trial proceeded, and Shanks was convicted. That was followed by a sentencing hearing Shanks also declined to attend, and he was sentenced to life.
On appeal, Shanks argued that because he was not in the courtroom at the beginning of the trial his conviction must be overturned.
What’s a courtroom?
The appeals court found that the judge had, in effect, brought the courtroom to Shanks’ cell.
“After Shanks refused to come to court, the federal judge came to him, with counsel and a court reporter present. The judge thus created at the jail. ... the features of in-person presence in a federal courtroom,” the justices’ decision states.
A second Shanks claim was a variation of his rule 43 claim. He said the judge erred when he found that Shanks “impliedly waived his right to appear at trial.”
Indeed, Shanks was careful in his statements that he was preserving his rights.
“I have given up nothing,” he said when informed that by failing to attend his trial he was abandoning his right to testify on his own behalf.
But deeds can speak louder than words. Brands’ words about not waiving any rights were outweighed by his actions waiving his right to attend his trial.
Justices Diane Sykes, Michael Kanne and Michael Brennan had no trouble finding that the trial judge “permissibly began trial at the jail and reasonably found Shanks waived his right to attend the remainder of his trial.”
“....We affirm (Shanks’ convictions),” they wrote.
Jim Dey, a member of The News-Gazette staff, can be reached by email at firstname.lastname@example.org or by phone at 217-351-5369.