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SCOW grants review in case regarding due process procedures applicable to Zoom hearings

State v. Grady, 2023AP1464-CR, petition for review of a summary disposition order, granted 1/16/25; case activity

With an increasingly rare review grant, SCOW signals its willingness to address the mechanics by which Zoom hearings are conducted so as ensure due process guarantees are observed.

Grady’s PFR presents the following issues for review:

1. The circuit court chose to conduct a contested restitution hearing as a “hybrid” procedure: Mr. Grady, the mentally ill criminal defendant, appeared via Zoom from prison. His lawyer, the assistant district attorney, and the judge all appeared in-person. During the hearing, Mr. Grady asked to speak to his lawyer. The court went “off the record” to facilitate that request, but made no attempt to ensure a confidential line of communication. The State, after listening in on Mr. Grady’s conversation with his attorney, used his comments to support its restitution argument.

Does this procedure necessitate a remand for a new restitution hearing?

2. May an insurance company be awarded restitution equivalent to the deductible paid by an insured when that insured has not filed a request for restitution?

The first issue appears to be motivating the grant of review, especially given Judge Maria Lazar’s rare decision to dissent from COA’s summary dispo. She uses her dissent to address the problems with what happened in the circuit court at length. In essence, Judge Lazar would hold that because Grady’s due process rights include the right to meaningfully consult with his appointed counsel, then the circuit court violated that right when it failed to facilitate a truly private line of communication between lawyer and client. In her view, the due process right was further violated when the State used what it had learned after listening in on the conversation against Grady. (Summary Dispo, p. 8). The dissent contains a lengthy discussion of how due process rights can be protected in the age of Zoom and offers a number of suggestions to avoid a similar problem in future cases.

Although not as meaty as this first issue, Grady’s second restitution issue is also along for the ride. Focusing on State v. Holmgren, Grady argues that restitution must be limited to “actual pecuniary losses.” Here, it would appear that the insurance company was reimbursed a deductible actually paid by the insured. Although the circuit court and court of appeals were comfortable inferring the existence of a contractual relationship permitting this arrangement, Grady argues that only the person who bore a loss can request and be reimbursed for that loss. 

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