June 16, 2025 – A 6-1 Wisconsin Supreme Court majority in State v. Grady, 2025 WI 22 recently agreed that Waukesha County Circuit Court did not deprive the defendant of due process when it alerted the defendant, appearing by Zoom, that the courtroom would hear his conversation with his lawyer.

“We defer to the circuit court’s factual finding that [Kordell L.] Grady did not intend for his conversation with his counsel during the restitution hearing to be confidential because that factual finding is not clearly erroneous,” Justice Annette Kingsland Ziegler wrote for the majority. “Therefore, Grady’s due process argument must be rejected.”

Three justices thought the circuit court should have done more to help Grady ensure a confidential conversation.

Justice Rebecca Frank Dallet – a former prosecutor – joined by Chief Justice Ann Walsh Bradley, concurred to highlight best practices.

Although the concurrence agreed that both “the circuit court did not do enough” and the “attorney also did not do enough” to keep Grady’s conversation private, “I cannot find that what happened here was so ‘shocking to the universal sense of justice’ that it is fundamentally unfair, and thus a violation of due process.”

Looking to the standard due process test in Mathews v. Eldridge, 424 U.S. 319 (1976), Justice Janet C. Protasiewicz dissented.

Under Wisconsin videoconferencing requirements, Protasiewicz concluded “[t]he circuit court failed to provide Grady this basic information at the start of his Zoom restitution hearing.”

“Then it allowed the State to use Grady’s ‘off the record’ disclosures to counsel ‘on the record’ to win a restitution award for $19,571.28 against an indigent person who was obligated to help support a six-month-old baby. Grady’s Zoom restitution hearing violated due process.”

Zoom Hearing

Grady stole a car belonging to the City of Milwaukee on Sept. 4, 2021, and engaged in a high-speed chase with law enforcement. Twice the stolen car struck a City of Muskego law enforcement vehicle.

Under a plea agreement, Grady pled no contest to three charges. The City of Muskego’s insurer sought restitution for the $19,071.28 in damages.

At the May 5, 2022 restitution hearing, Grady appeared for the first time via Zoom from Dodge Correctional Institution.

During his lawyer’s argument that Grady would be unable to pay the amount, Grady interrupted.

The circuit court asked Grady if he needed to speak with his attorney. Grady said yes. The court then said it would be “off the record.”

After going back on the record, the Assistant District Attorney (ADA) argued that “it sounds like there’s some ability to pay. … Sounds like, if I heard him correctly, he’s paid over $3,000 in tickets in his past.”

The circuit court then noted that it had “warned [Grady] – or told him that everybody could hear him obviously.”

The circuit court ordered full restitution.

Postconviction

Grady raised three arguments seeking postconviction relief for a new restitution hearing. In addition to claiming ineffective counsel, Grady argued that the circuit court violated due process by preventing him from having a confidential conversation with his attorney and allowing the ADA to hear his conversation.

The circuit court “found that Grady did not intend for his conversation with his attorney to be confidential” because he “must have recognized that when he spoke over Zoom, his voice would be broadcast to the entire courtroom” where the ADA was.

The court of appeals summarily affirmed on effectiveness of counsel but split 2-1 on whether the circuit court deprived Grady of due process.

Dissenting, Judge Maria S. Lazar wrote, “[t]he circuit court allowed Grady to be placed in the untenable position of not being able to communicate confidentially with his attorney at any point during the restitution hearing.”

Confidential?

Although a constitutional issue such as due process presents a question of law, the supreme court reviews whether the circuit court’s findings of fact areclearly erroneous – whether it is “against the great weight and clear preponderance of the evidence.”

The standard of review answered the question before the supreme court, the majority said.

“The circuit court found that Grady did not intend for his conversation with his attorney during the restitution hearing to be confidential. The record adequately supports the circuit court’s factual finding,” the majority explained.

Limited only to the record, the majority said, “nothing in the record indicates that Grady or his attorney requested a private conversation in response to the circuit court’s warning.”

Although the circuit court went off the record, courts do so for any number of reasons that don’t involve confidential attorney-client conversations, the majority said.

“The constitutional requirement of fundamental fairness did not call for the circuit court to facilitate a confidential communication that Grady did not seek or request.”

Best Practices

Justice Dallet’s concurrence noted that, under Wis. Stat. section 855.54(1)(g) in criminal cases and specified other matters, “a separate private voice communication shall be available” for private communications between attorney and defendant or respondent. “The same can and should be done for any other type of case.”

Availability is not enough. “[C]ircuit courts should be proactive and state on the record at the beginning of a proceeding that a means of private communication with counsel is available and explain how such communication would occur,” the concurrence said.

If the proceeding is lengthy, the circuit court “should periodically inquire” whether the party wants a confidential conference with the lawyer.

The record here, the concurrence found, did not violate due process. “Even when the [ADA] began referencing Grady’s statements, Grady’s attorney did not object and argue that their conversation was intended to be confidential.”

‘Unacceptable Risk’

Justice Protasiewicz’s dissent departed from the majority into constitutional analysis. “Grady’s intent is beside the point. The issue is whether the circuit court used constitutionally adequate procedures during the restitution hearing.”

Using the Mathews v. Eldridge three-part test, Protasiewicz began by finding that a restitution hearing implicates a “substantial property interest.”

Because the circuit court failed to inform Grady at the start of the Zoom hearing of a means of private communication with counsel, the circuit court “created an unacceptable risk of erroneous deprivation,” Protasiewicz wrote.

Attorney-client privilege is critical to due process – and to effectiveness of counsel, Protasiewicz explained. Its importance appears in the videoconferencing rules. “Providing a means for private communication with counsel during the entire hearing is mandatory, unless waived or agreed otherwise,” Protasiewicz wrote.

In Adoption of Patty, 489 Mass. 630, 186 N.E.3d 184 (Mass. 2022), Protasiewicz noted that a Zoom hearing violated due process because the trial court failed to tell the respondent of available private communication.

“[D]ue process requires the circuit court to state that a means for private communication with counsel is available and explain how to request it,” Protasiewicz said.

Merely saying the court was “‘off the record’ only made matters worse,” Protasiewicz explained. “For a layperson, ‘off-the-record’ means ‘given or made in confidence and not for publication.’”

Finally, “The State has no interest in obtaining a restitution order exceeding a defendant’s ability to pay,” Protasiewicz noted, which reduces the significance of restitution.

“Nor does the State have an interest in preventing, minimizing, or attending conversations between a defendant during videoconference proceedings in order to move them along.”