COUNSEL (For 7th Circuit 2254 habeas IAC cases, go here.) Updated 7/15/08

Conflict of Interest Prior Appearance by Prosecutor ("Reverse Representation") Waiver of

Ineffective Assistance Deficient Performance Appeal/Postconviction Closing Argument Conceding Guilt Examination of Witness (incl. deft.'s perjurious testimony) Failure to File Timely Appeal Failure to File Suppression Motion Failure to Investigate (Facts and Law) / Choice of Defense Theory Failure to Object/Seek Admissibility Guilty Pleas/Plea Bargains Jury Instructions Jury Selection Sentencing Prejudice

Litigating IAC Claims

Other IAC and Interest of Justice Sanctions Malpractice Claim

Right/Assertion/Waiver of Counsel

Conflict

Guardianship -- Dual Representation, Competing Interests  Guerrero v. Cavey, 2000 WI App 203, 238 Wis.2d 449, 617 N.W.2d 849  Issue: Whether an attorney's dual representation of the subject of a guardianship and her son worked a conflict of interest. Holding: The two clients had competing interests, including the son's desire to buy his mother's house at below market value, and the attorney therefore had a conflict of interest. ¶13-17.

Conflict of Interest – Representation of Defendant by Prosecutor in Prior Case – Generally

State v. Christopher M. Medina, 2006 WI App 76

For Medina: Daniel P. Ryan

Issue/Holding: A claim that the prosecutor represented the defendant in a prior case may be raised in a pretrial motion to disqualify the prosecutor, which requires a showing that “the subject matter of the two representations are ‘substantially related,’” ¶15, quoting State v. Tkacz, 2002 WI App 281, ¶13, 258 Wis. 2d 611, 654 N.W.2d 37. The “substantial relationship” test is based on SCR 20:1.9 (ethical rule: “Conflict of interest: former client”), ¶16, rather than the 6th amendment, ¶19 n. 5. The test is based on an irrebuttable presumption that a client discloses confidential information to counsel, and the aim is therefore to avoid a potential conflict before it actualizes, ¶17. However, such a disqualification is subject to waiver bar, including a requirement of timeliness, and where the motion is waived the defendant must then show an actual conflict of interest by clear and convincing evidence, ¶¶19-20, citing State v. Love, 227 Wis. 2d 60, 63, 594 N.W.2d 806 (1999).

The court proceeds to clarify the test: ¶37      While we see why there may be some confusion based on our summary in Tkacz of the circuit court’s findings, those findings do not define the substantial relationship standard. Medina is correct that under this standard a substantial relationship may exist even if there is no evidence that confidential information relevant to the later case was communicated to the attorney. We clearly say this in Tkacz when we state that the standard is whether “‘the lawyer could have obtained [relevant] confidential information.’” Id., ¶13 (citation omitted, emphasis added). And our more thorough discussion of the standard in Berg makes this even clearer: the point of the substantial relationship standard is to prevent the need for an attorney’s former client to have to disclose confidential information in order to have the attorney disqualified from representing an adverse party in the present case. See Berg, 141 Wis. 2d at 889-91 and n.5. That is why the existence of a substantial relationship depends on whether “the factual contexts of the two representations are similar or related.” Id. at 889 (citations omitted). By comparing the factual contexts of the two cases, we can determine whether there could have been confidential disclosures in the former case that are relevant to the later, without inquiring into the actual disclosures. What about recusal of the prosecutor qua prosecutor? It's neither common nor unheard of, even if it does take somewhat exotic facts, e.g., People v. Hollywood, Cal App No. B188550, 10/5/06 (prosecutor had hand in making film about pending case); People v. Haraguchi, Cal App No. B191161, 10/5/06 (prosecutor authored self-published book drawing on facts of pending case).

Conflict of Interest – Representation of Defendant by Prosecutor in Prior Case – Pretrial Motion to Disqualify, Timeliness

State v. Christopher M. Medina, 2006 WI App 76

For Medina: Daniel P. Ryan

Issue: Whether a motion to disqualify a prosecutor because of representation of defendant in a prior case, brought immediately before jury selection, may be deemed waived on timeliness grounds.

Holding: ¶24        We conclude the circuit court may, in the proper exercise of its discretion, deny a motion to disqualify a prosecutor under the substantial relationship standard if the motion is untimely. The circuit court properly exercises its discretion when it applies the correct legal standard to the relevant facts of record and reaches a reasonable result using a rational process. State v. Watson, 227 Wis. 2d 167, 186, 595 N.W.2d 403 (1999) (citations omitted). In the context of a motion to disqualify a prosecutor under the substantial relationship standard, a non-exclusive list of factors to consider in deciding if the motion is timely brought include: when the defendant knew who the prosecutor was and that the prosecutor had previously represented the defendant; whether and when the prosecutor realized he or she had previously represented the defendant; applicable time periods established in scheduling orders; at what stage in the proceeding the motion is brought; reasons why the motion was not brought sooner; prejudice to the State because of the timing of the motion if the motion is granted; and prejudice to the defendant if the motion is denied. See Batchelor, 213 Wis. 2d at 256-60. ¶25      Applying this standard here, we conclude the circuit court properly exercised its discretion in denying Medina’s disqualification motion on the ground of untimeliness. Although defense counsel had just learned of the prior representation a few days earlier, the court could reasonably infer that Medina knew much earlier in this case who the district attorney was and knew he was the same person who represented Medina at a sentencing three years earlier. In the absence of any explanation why Medina did not bring this to the attention of his attorney earlier, the court could reasonably infer that Medina was raising it just before jury selection for purposes of delay. The court implicitly credited the district attorney’s statement that he had not remembered the prior representation before defense counsel told him, which the court could properly do. The court also properly considered the scheduling orders it had entered and that the jury panel had been called. Finally, nothing presented to the circuit court indicated that there would be any prejudice to Medina in denying the motion: the district attorney could not remember anything from the prior representation and Medina presented little detail about the prior case. We recognize that, as we have described paragraph 17, the substantial relationship standard inquires into the relationship between the two cases, and not into whether confidential information was actually given to the attorney and whether the attorney remembers that information. Nonetheless, the likelihood of an actual conflict of interest is an appropriate factor to take into account in deciding whether to deny as untimely a disqualification motion against a prosecutor based on the substantial relationship standard. Where “a disqualification motion against a prosecutor based on the substantial relationship standard is properly denied as untimely, the ‘actual conflict of interest’ standard of Love and Kalk applies to a postconviction motion claiming a conflict of interest,” which requires that the defendant “show by clear and convincing evidence that the district attorney had an actual conflict of interest, that is, that the district attorney had a competing loyalty that adversely affected Medina’s interests,” ¶¶30-31. The court, however, reserves the possibility of a different showing where counsel knowingly fails to disclose prior representation, ¶31 n. 9. Judge Lundsten, concurring, discusses an issue that he concedes is gratuitous, ¶40 n. 11, namely whether “a fair and error-free trial” cures an improperly denied pretrial disqualification motion. He would “liken this situation to the rule we apply when an error-free trial follows an erroneous bindover decision. In State v. Webb, 160 Wis. 2d 622, 467 N.W.2d 108 (1991), the court held … that, after an error-free trial, reversing a conviction and returning the parties to the preliminary hearing stage serves no sensible purpose. Id. at 628-31, ¶43. But this analogy assumes that the institutional interests are the same in both contexts—that safeguarding client confidentiality and ethical rules is the same as making sure that a summary proceeding has done its job. The argument need not be joined, at this point anyway, given that the concurrence is not binding. Indeed, Judge Lundsten “acknowledge(s) that there are differences between the Webb situation and the conflict of interest issue we address today,” and cryptically adds that he would actually explain those differences if only he were writing the majority opinion, ¶46. He isn’t and so he doesn’t. However, his concurrence does highlight the need to seriously consider interlocutory review of a denied disqualification motion. Merely preserving the issue may not be enough in the end.

Conflict of Interest – Representation of Defendant by Prosecutor in Prior Case – Postconviction Motion to Disqualify – Actual Conflict Required

State v. Christopher M. Medina, 2006 WI App 76

For Medina: Daniel P. Ryan

Issue/Holding: ¶33      The circuit court here accepted the district attorney’s testimony that he did not remember any conversation with Medina during the prior representation. It also found that the district attorney did not refer to any information at sentencing from the prior representation that was not a matter of public record. There is no basis for disturbing these findings. Medina points to no other evidence that might arguably show his interests were adversely affected because the district attorney, having previously represented him at sentencing in the misdemeanor theft case in 2001, is now prosecuting him for these different charges of burglary. We conclude Medina has failed to show by clear and convincing evidence that the district attorney had a competing loyalty that adversely affected Medina’s interests in this case. The circuit court therefore correctly denied his motion for a new trial. Counsel pointed out that “the presentence report referred to the earlier misdemeanor theft, and at sentencing the prosecutor referred the court to Medina’s prior record, pointed out that Medina had been convicted of the misdemeanor theft, and referred to prior probation revocations, which included that for the misdemeanor theft,” ¶7. Thus, the court’s observation that the prosecutor relied only on matters of public record is probably crucial to the holding. Had the prosecutor done more than simply “refer” to these matters – had he instead revealed some client confidence – then the outcome might have been different.

Prior Representation by Prosecutor: Unrelated Civil Forfeiture State v. Peter G. Tkacz, 2002 WI App 281, PFR filed 11/14/02 For Tkacz: Mark S. Rosen Issue: Whether the prosecutor's prior representation of the defendant in a civil forfeiture worked a disqualifying conflict of interest. Holding: The standard for analyzing the existence of a conflict of interest (raised before trial) in serial representation is the "substantial relationship" test. ¶15 ( State v. Love, 227 Wis. 2d 60, 82, 594 N.W.2d 806 (1999) distinguished, on necessity of showing "actual prejudice" when issue raised after trial). That is, disqualification is required "if the two representations are 'substantially related," as measured by whether the attorney could have obtained confidential information in the first representation that would have been relevant to the second. ¶13. In this case, the trial court's findings -- principally, that the prosecutor and his former client "did not exchange any meaningful confidential information" -- is upheld and leads to denial of relief. ¶17.

Prior Representation by Prosecutor: "Reverse Representation"

State v. David Kalk, 2000 WI App 62, 234 Wis. 2d 98, 608 N.W.2d 428

For Kalk: John A. Pray, UW Law School

Issue: Whether the defendant satisfied his burden of showing an actual conflict of interest stemming from his prior representation by the prosecutor on an unrelated charge.

Holding: Given the trial court's findings of historical fact, defendant did not show that his prosecution was influenced by the prior representation.

Analysis: Kalk's prosecutor had previously represented him on an unrelated charge. Kalk didn't object until a postconviciton motion asserting conflict of interest. Though Kalk asserted that during this prior case he revealed to the prosecutor damaging information about himself, the trial court found that he hadn't, and also that the current prosecution wasn't influenced by the prior representation. The court of appeals says that this "reverse representation" case, though novel, is similar to any other conflict of interest situation: where no objection is lodged, the defendant must show by clear and convincing evidence an actual conflict, which in this context would be that the prosecutor had a competing loyalty which adversely affected Kalk's interests. ¶16. The trial court's findings are entitled to deference, and given those findings, along with the absence of any connection between the prior and present cases, the court discerns no competing loyalties. ¶¶19-21.

UPDATE: What happens when counsel for a defendant on a pending case lands a job with the prosecutor? See Johnson v. State, 2003 WY 9, 61 P.3d 1234, setting down the following guidelines "which must be followed": 1. Oral and written directions must be given to all staff members that the attorney will not participate in any matter in which the attorney participated as a public defender or criminal defense attorney. A written screening policy must be put in place to ensure this requirement is met. 2. A letter should be directed to every former client of the attorney announcing the new employment relationship. This letter may be sent to the client, care of the client’s current attorney. Ideally, this letter should appear in the court record of an affected criminal case. 3. The prosecuting attorney’s screening policy should be sent to every judge in the district, circuit, and/or county affected. 4. A copy of the screening policy should be placed in every active case file in which the attorney participated. 5. All office employees should be advised both orally and in writing that any violation of the screening process must be reported immediately and that inattention to the screening policy will result in discipline. 6. In a prominent location near case files, post a list of all cases from which the attorney is to be screened.

Prior Appearance as Prosecutor State v. Michael Love, 227 Wis.2d 60, 594 N.W.2d 806 (1999), reversing State v. Love 218 Wis.2d 1, 579 N.W.2d 277 (Ct. App. 1999)  For Love: Philip J. Brehm.  Holding/Analysis: Love was represented at sentencing after revocation by an attorney who had been the prosecutor at the original sentencing, 20 months earlier. The attorney later that he couldn't remember appearing for the state at the original sentencing. The supreme court holds that Love may not obtain relief without showing an actual conflict of interest, something he failed to do. Prior cases establish the need to show an "actual" conflict ("adverse" effect on representation) stemming from unobjected-to representation of multiple defendants. Cuyler v. Sullivan, 446 U.S. 335 (1980); State v. Kaye, 106 Wis. 2d 1, 315 N.W.2d 337 (1982). No exception, the court now holds, exists for unobjected-to "serial" (prior prosecutorial) representation. What, exactly, is an "actual" conflict? The term "remains 'somewhat ambiguous' and deserves clarification." The court provides the following formulation: "An actual conflict of interest exists when the defendant's attorney was actively representing a conflicting interest, so that the attorney's performance was adversely affected." A footnoted aside suggests, perhaps more illuminatingly, that you've got to show the attorney was placed in a situation where s/he was constrained to make a tactical choice that was antagonistic to the client's interests. Fn. 5. The court's summation of its holding makes clear that counsel's knowing failure to disclose prior representation is itself basis for relief:  ¶40 We hold that in order to establish a Sixth Amendment violation on the basis of a conflict of interest in a serial representation case, a defendant who did not raise an objection at trial must demonstrate by clear and convincing evidence that his or her counsel converted a potential conflict of interest into an actual conflict of interest by (1) knowingly failing to disclose to the defendant or the circuit court before trial the attorney's former prosecution of the defendant, or (2) representing the defendant in a manner that adversely affected the defendant's interests. If either of these factors can be shown, the circuit court should provide the defendant with appropriate relief. If an attorney knowingly fails to disclose to a defendant or the circuit court his or her former role in prosecuting the defendant, the attorney is subject to discipline from the Board of Attorneys Professional Responsibility.  The following remarks of the court are also worth mention:  ¶37 In extending Cuyler-Kaye standards to serial representation, we are bound to extend also the requirement that all potential conflicts of interest that result from an attorney switching sides be made known to the court as soon as feasible before trial so that the court can inform the affected parties and conduct an appropriate inquiry. When an attorney who has switched sides informs the defendant and informs the court of the potential conflict, the attorney will often realize that he or she cannot proceed under Supreme Court Rules 20:1.9 or 20:1.11. When a former prosecutor enjoys the confidence of a defendant despite the potential conflict, the defendant's waiver should be formalized on the record so that it can be evaluated by the court and so that it will not later serve as a basis for post-conviction relief.  ¶38 In all these situations, the court must be empowered to disqualify attorneys in the interest of justice. ...  Although Kaye, as the foregoing quote indicates, authorizes waiver of a conflict -- also see Wis JI-Crim No. SM 45 (2000) --, waiver shouldn't be taken as a mere formality. For a good illustration of the exacting standard of knowing intelligent waiver of a potential conflict, albeit on interesting facts, see Lewis v. Mayle, 9th Cir. No. 03-16152, 11/29/04: However, there is no evidence that Lewis understood “any of the specific ramifications of his waiver,” 250 F.3d at 1233, since he did not seek the advice of outside counsel and had only a cursory discussion with the judge. Cf. Garcia v. Bunnell, 33 F.3d 1193, 1196-98 (9th Cir. 1994) (finding a waiver valid where the defendant had an extensive discussion with the judge about the conflict, received a continuance to consult with his family on the matter, and clearly understood his right to unbiased counsel). In Belmontes, we concluded that a defendant was not sufficiently informed of the consequences of a waiver, in part because he was not told that his attorney owed a continuing duty of loyalty to a former client whom the defendant now implicated in the murder. 350 F.3d at 885. Here, too, there is no evidence that Lewis was told that Weiner had any continuing obligations to Berg. Even if Lewis understood the theoretical risk of an attorney being biased towards a former client, and dismissed that risk as unlikely, it is less likely that he foresaw other potential consequences of the waiver — for instance, the fact that the charges on which Weiner previously represented Berg might provide material for impeachment. We must “indulge every reasonable presumption against the waiver of fundamental rights.” United States v. Allen, 831 F.2d 1487, 1498 (9th Cir. 1987) (citation omitted). Accordingly, we hold that Lewis did not validly waive his right to conflict-free counsel.

Conflict of Interest – Waiver of Conflict by Defendant, Generally

State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06

For Demmerly: Edward J. Hunt

Issue/Holding: A trial court may, but is not required, to override a defendant’s waiver of the right to conflict-free representation, and in this instance the trial court properly questioned the defendant and ascertained that he was knowingly and voluntarily waiving that right: ¶13 Contrary to Dion’s assertion, none of these cases involve a situation where a trial court accepted a defendant’s valid waiver of the right to conflict-free representation. [4] Furthermore, while these cases illustrate that a court may use its discretion to disqualify an attorney, none hold that a trial court must reject a defendant’s voluntary waiver of the right to conflict-free representation. We find the holding of United States v. Lowry, 971 F.2d 55 (7th Cir. 1992), on this issue persuasive. Like Dion, Lowry claimed that the trial misused its discretion in not disqualifying his attorney due to a serious conflict of interest. Id. at 60. The Lowry court recognized that Wheat provides trial courts with discretionary power to override a defendant’s waiver of conflict-free representation. However, “Wheat failed to delineate any instance where the court is required to override the defendant’s waiver and disqualify the attorney. In other words, while courts sometimes can override a defendant’s choice of counsel when deemed necessary, nothing requires them to do so.” Id. at 64. Requiring a court to disqualify an attorney because of a conflict of interest would infringe upon the defendant’s right to retain counsel of his choice and could leave the accused with the impression that the legal system had conspired against him or her. Id. ¶14 Here, the conflict of interest issue arose several times during the proceedings. The record reveals that each time the issue arose, Dion voluntarily and knowingly waived his right to conflict-free representation. On three separate occasions, the trial court conducted a colloquy with Dion regarding the conflict of interest issue and Dion does not contest the adequacy of the court’s colloquies. The court properly exercised its discretion in allowing Dion to retain the attorney of his choice. …

Conflict of Interest – Waiver of Conflict by Defendant, Amounts to Waiver of Claim of Deficient Performance

State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06

For Demmerly: Edward J. Hunt

Issue/Holding: ¶15 Dion contends that he was denied effective assistance of counsel because his counsel’s law firm also represented his co-defendant brother Douglas. … While there is no Wisconsin case law directly on point, the State cites federal cases holding that a defendant cannot assert ineffective assistance of counsel based on a conflict of interest when the defendant validly waived the right to conflict-free representation. … ¶16 The Lowry court provided the rationale for this rule when it stated “[t]o hold otherwise would be to render the waiver meaningless; a defendant would lose nothing by waiving his right and sticking with counsel who had a conflict, since he could always allege ‘ineffective assistance’ if convicted.” Lowry, 971 F.2d at 63. With the caveat discussed below, we adopt the rule established by the Seventh Circuit that a defendant who validly waives his right to conflict-free representation also waives the right to claim ineffective assistance of counsel based on the conflict. Harvey, 11 F.3d 691, 695 (7th Cir. 1993). ¶17 We question whether a valid waiver of a conflict of interest should act to bar all ineffective assistance claims where deficient performance is prompted by the waived conflict of interest. There may be instances in which counsel’s performance is deficient and unreasonably so even in light of the waived conflict of interest. An example will help explain the small door we leave open today. ¶18 … But what if the evidence seriously harms the defendant with no significant corresponding chance of helping the co-defendant? That is to say, what if counsel’s decision is not a reasonable strategic decision, even considering counsel’s conflict of interest? Should a valid waiver defeat all ineffective assistance claims, even when counsel’s choice is objectively unreasonable, taking into account the conflict? We have no occasion to answer this question today.

Ineffective Assistance

Deficient Performance

Deficient Performance -- General: Applicability of ABA (and Like) Standards

Deficient Performance -- General

Wiggins v. Smith, 539 U.S. 510 (2003) (ABA Standards, as "guides" to counsel's duty to investigate, represent "clearly established precedent"); Keith B. Canaan v. McBride, 7th Cir No 03-1384, 1/11/05: We follow the Court’s lead in Strickland and Wiggins by looking first to the ABA Standards for Criminal Justice and the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases. See Strickland, 466 U.S. at 688 (“Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice, are guides to determining what is reasonable.” (internal citation omitted)); Wiggins, 539 U.S. at 522. While these standards are not determinative, see Strickland, 466 U.S. at 688-89, they nonetheless represent “well-defined norms” on which the Court has routinely relied, see Wiggins, 539 U.S. at 524....

Deficient Performance -- Appeals / Postconviction

Deficient Performance (Postconviction): Failure to Pursue Arguably Meritorious Appellate Issue that Client Knowingly Waived

State ex rel. Richard A. Ford (II) v. Holm, 2006 WI App 176, PFR filed 9/11/06; on appeal following remand in 2004 WI App 22 (“Ford I”)

For Ford: James R. Troupis For Amicus: Joseph N. Ehmann, SPD, Madison Appellate

Issue/Holding: Given circuit court findings “that Ford affirmatively elected not to pursue any issue that would result in the withdrawal of his plea and the possible reinstatement of a second sexual assault charge,” he is deemed to have knowingly and voluntarily waived his right to pursue a postconviction challenge to his guilty plea; and, his claim of ineffective assistance of appellate counsel for failing to pursue that issue is thereby rejected, ¶4.

Deficient Performance (Postconviction): Failure to Offer Defendant Option of “Partial” No-Merit Report

State ex rel. Richard A. Ford (II) v. Holm, 2006 WI App 176, PFR filed 9/11/06; on appeal following remand in 2004 WI App 22 (“Ford I”)

For Ford: James R. Troupis For Amicus: Joseph N. Ehmann, SPD, Madison Appellate

Issue/Holding: A client who has strategically foregone a potentially meritorious postconviction challenge is not entitled to the option of a “partial” no-merit report discussing remaining aspects of the case: ¶12 We conclude, after reviewing the Supreme Court’s analyses in Robbins, that Ford’s constitutional right to effective representation for the purpose of exercising his right to directly appeal his 1998 conviction did not require his postconviction counsel to offer him the option of a “partial no-merit” report on any potential issues remaining after Ford declined for strategic reasons to pursue an issue having arguable merit. The Supreme Court explained in Robbins that the U.S. Constitution requires only that “an indigent’s appeal will be resolved in a way that is related to the merit of that appeal,” Robbins, 528 U.S. at 276-77, and, further, that an indigent’s constitutional right is “to have an attorney, zealous for the indigent’s interests, evaluate his case and attempt to discern nonfrivolous arguments,” id. at 278 n.10. We are satisfied that the postconviction representation provided to Ford in this case met these standards. ¶13 Finally, we note that competing professional considerations weighed against the filing of a no-merit report on the present facts. As the Supreme Court recognized in Robbins, an attorney may well have legitimate ethical qualms about filing a no-merit report under Wis. Stat. Rule809.32, even when such a report is clearly required by the rule. We conclude that it cannot therefore be a violation of “professional norms” to not file a no-merit report when one is not clearly required by the rule or by the Constitution. Strong words—plus an intriguing footnote (¶11, n. 5) which encourages the SPD to seek a change to R. 809.32 “to reduce the apparent ‘ethical tensions’ created by the present procedure.” If, that is, the SPD thinks such a need exists; the court hints at agreement but doesn’t reveal its hand. The background is, in brief, that Ford had been informed of a potential challenge to his guilty plea, but he declined to attempt plea withdrawal because of the risks. Counsel, then, couldn’t very well have filed a no-merit report, given that there was at least some merit to a postconviction challenge. The question thus became whether the client could split his claims, and demand that counsel file a no-merit report to the sentence but simply sweep the guilty plea under the rug. The answer is no.

Deficient Performance - Closing Argument

Deficient Performance – Closing Argument: Inconsistent Theories

State v. Paul Dwayne Westmoreland, 2008 WI App 15, PFR filed 1/17/08

For Westmoreland: Joseph E. Redding

Issue: Whether counsel's strategic decision to argue inconsistent theories during closing argument (the defendant wasn't involved in the shooting, but if the jury found he was then they should find guilt only on a lesser offense) was deficient.

Holding: ¶20      We start with the proposition that strategic decisions by a lawyer are virtually invulnerable to second-guessing. Strickland, 466 U.S. at 690. As the trial court recognized, we must analyze the change of tack by Westmoreland’s lawyer in her summation against the evidence as it existed at that time, not as she might have hoped she could have accomplished when she gave her opening statement. At that point, sticking with the all-or-nothing approach set out in her opening statement would have been largely suicidal. Thus, we agree with the trial court’s conclusion in its decision denying Westmoreland’s motion for postconviction relief “that it was a reasonable trial strategy for counsel to argue an alternative defense based on reckless conduct.” ¶21      Westmoreland points to two Wisconsin cases that hold that a lawyer is not ineffective for not arguing inconsistent theories.  See State v. Kimbrough, 2001 WI App 138, ¶¶1, 32, 246 Wis. 2d 648, 653, 665, 630 N.W.2d 752, 754, 760; State v. Eckert, 203 Wis. 2d 497, 510, 553 N.W.2d 539, 544 (Ct. App. 1996) (decision to not request a lesser-included-crime instruction). But this is a different matter from saying that a lawyer is ineffective for doing so. As Strickland reminds us, there is a “wide range of professionally competent assistance,” id., 466 U.S. at 690, and the bar is not very high, see Yarborough v. Gentry, 540 U.S. 1, 11 (2003) (lawyer need not be a Clarence Darrow to survive an ineffectiveness contention). Indeed, it is not uncommon for lawyers to argue inconsistent defenses. See, e.g., State v. Nelis, 2007 WI 58, ¶20, 300 Wis. 2d 415, 424, 733 N.W.2d 619, 623 (“Nelis argued at trial that the evidence did not show that he and Diane S. had sexual intercourse on the night at issue. He further argued that, even if they did have sexual intercourse that night, it was consensual.”). ¶22      What Westmoreland’s trial lawyer did here was within the “wide range of professionally competent assistance,” see Strickland, 466 U.S. at 690, and, given the overwhelming strength of the State’s case, was “strategy” as a matter of law. Further, as the trial court also concluded, given the strength of the State’s case, persisting with the original all-or-nothing approach would not have led reasonable jurors to conclude that the State had not proven Westmoreland guilty beyond a reasonable doubt. Thus, as a matter of law there was also no Strickland “prejudice,” that is, the change of tack by Westmoreland’s lawyer in her closing argument did not “undermine confidence” in the trial’s outcome.   See Strickland, 466 U.S. at 694. Accordingly, we affirm.[1]  [1] Westmoreland also contends that his trial lawyer was wrong when she prefaced her change of tack in her closing argument by telling the jury that “the law requires me to make another argument in this instance” because the law did not “require[]” her to make an argument inconsistent with her contention that Westmoreland was not involved in the shootings. This is a non-starter because the lawyer’s preface helped rather than hurt Westmoreland—it reduced, rather than enhanced, whatever prejudice might have flowed as a result of the lawyer’s giving the jury an alternative, albeit inconsistent, argument, especially since the trial court had already instructed the jury that it could consider the lesser-included crime of first-degree reckless homicide. As we have already seen, Westmoreland does not challenge the propriety of that instruction or the effectiveness of his trial lawyer for asking for it. Thus, we do not discuss it. See State v. Allen, 2004 WI 106, ¶26 n.8, 274 Wis. 2d 568, 587 n.8, 682 N.W.2d 433, 442 n.8 (issue not argued is waived). In her opening statement, counsel “told the jury flat out that Westmoreland was not involved’ in any of the shootings,” ¶11; but she “turned tack in her summation to argue that he was guilty of the lesser-included crime of first-degree reckless homicide, on which the trial court without objection and in accord with Westmoreland’s request had already instructed the jury,” ¶13. As the block quote above indicates, the court of appeals perceives no deficiency in counsel’s strategic tacking. But to a large extent that apparent change was based on the decision, altogether unchallenged, to submit a lesser offense option, the strategic reasonableness of which is therefore a given; and, hewing to an all-or-nothing position would have been, in the court’s choice terminology, “suicidal.” What, then, is the big deal; seems like a mine-run case: why publish it? Quite possibly because of the court’s pernicious observation, “strategic decisions by a lawyer are virtually invulnerable to second-guessing.” You can bet that statement will be cited as boilerplate in future IAC claims. Indeed, the only authority cited by the court for placing postconviction counsel in that straitjacket, is the seminal Strickland, more about which momentarily. Oddly, the court blithely cites Kimbrough without acknowledging that in that instance it rejected counsel’s proffered strategy – counsel’s “subjective” reason for pursuing a chosen course of action, the court said, weren’t decisive; instead, the question was whether it was objectively reasonable. Of course, in that instance, counsel concededly made a mistake in pursuing an all-or-nothing strategy and had actually meant to try for a lesser offense. But that result creates a potentially intolerable tension with the court’s statement now that it’s next to impossible to second-guess strategy (you can second-guess if you want to affirm rather than vacate the conviction). It has long been settled that counsel’s strategizing is tested by whether it was rationally based on the facts of the case and the law, e.g.,  State v. Felton, 110 Wis. 2d 485, 502-503, 329 N.W.2d 161 (1983). Compare, United States ex rel. Hampton v. Leibach, 347 F.3d 219, 246 (7th Cir. 2003) (“an attorney’s decisions are not immune from examination simply because they are deemed tactical”; question is whether the tactic “was objectively reasonable”). We are now, if Westmoreland takes hold, some distance removed from those more gimlet-eyed views of counsel’s performance. Now to the test in Strickland, which was expressed by the Court this way: “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” 466 U.S. at 690-91. After thorough investigation. Decidedly different stress, no? Application of that formulation to these facts would have brought the Westmoreland court to the same place undoubtedly, but note the difference is almost too obvious to require spelling out: before immunity from second-guessing there first must be “thorough investigation.” The court has accurately recited the test before, in State ex rel. Clayborn L. Walker v. Frank, 2007 WI App 142, ¶15 (“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690”); and State v. Dale H. Chu, 2002 WI App  98, ¶52  (“counsel's strategic choices, made after thorough investigation of the law and facts, are virtually unchallengeable. See Strickland, 466 U.S. at 690-91”). Maybe the court’s present, rough summary isn’t meant to change anything. Perhaps it is a mistake to read too much (or anything at all) into the court’s shift in rhetoric; but it would be wise to keep in mind that the focus must be on the quality of the investigation of both facts and law, before leaping to the conclusion that counsel’s decision-making is impervious to review. Returning to this case: Westmoreland presented no witnesses. He had no real defense. The decision might be read as supporting the idea that no strategy would have changed the outcome, and in that sense a holding of no prejudice might have been the preferred outcome. Compare, Conner v. McBride, 375 F3d 643 (7th Cir. 2004) (failure to seek lesser offense instruction was deficient, because “the trial court would have been legally obligated to so instruct the jury,” but was nonetheless non-prejudicial because the evidence was so overwhelming he would have been convicted as charged anyway). Remember, too, at least as a tangential aside, that the potentially thorny question of submitting a lesser offense option (who gets to choose, counsel or client?) wasn’t raised.

Deficient Performance -- Conceding Guilt

Deficient Performance -- Conceding Guilt on One of Multiple Counts

State v. Gary L. Gordon, 2003 WI 69, reversing 2002 WI App 53, 250 Wis. 2d 702, 641 N.W.2d 183

For Gordon: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding: ¶24. The court of appeals held that the defense attorney's closing argument concession on the disorderly conduct while armed count was the functional equivalent of a guilty plea, improper if done without Gordon's consent, and conclusively presumed to be prejudicial. Gordon, 250 Wis. 2d 702, ¶25. We disagree. A guilty plea waives trial, cross-examination of witnesses, the right to testify and call witnesses in one's own defense, and the right to a unanimous jury verdict of guilt beyond a reasonable doubt. The concession in this case had none of these effects. Gordon had a jury trial, cross-examined the State's witnesses, testified in his own defense, and was adjudged guilty beyond a reasonable doubt by a unanimous jury. ¶25. Gordon's own testimony conceded the facts constituting the disorderly conduct while armed count. In summary, he admitted the following: that he had been drinking and had been involved in a domestic dispute with Wilder; that when the police arrived, he armed himself with two knives to facilitate his escape; that he refused the officer's commands to drop the knives; that he fled the apartment while still armed with the knives and was pursued through the neighborhood by the two police officers; that when the officers caught up with him they twice commanded him to drop the knives; that he initially refused to do so; and that when he changed his mind and started to surrender the knives, the police shot him in the arm and the stomach. ¶26. Under these circumstances it was not deficient performance for Gordon's attorney to concede the overwhelming weight of the evidence on the misdemeanor disorderly conduct count and focus his closing argument on the more serious charges in the case, which, unlike the disorderly conduct count, remained contestable after Gordon's testimony. While conceding that the facts out of Gordon's own mouth amounted to disorderly conduct while armed, Gordon's attorney argued vigorously for acquittal on the more serious felony and misdemeanor counts. This was a reasonable tactical approach under the circumstances, plainly calculated to maintain credibility with the jury and enhance the prospects of acquittal on the two more serious charges. Gordon's attorney did not concede anything that Gordon had not admitted as a factual matter on the witness stand; the concession, therefore, did not conflict with Gordon's own testimonial admissions. Accordingly, the defense attorney's conduct in this regard did not fall below an objective standard of reasonableness, nor was it prejudicial. ¶27. Gordon cites a number of cases that have held an attorney's concession of guilt during trial to be the functional equivalent of a guilty plea, and presumptively prejudicial if done without the defendant's consent, but each of these cases is factually distinguishable from this case, because each is characterized by one or more of the following: 1) a concession to all the charges (or the only charge) in the case; 2) a concession made in opening statement before any adversarial or evidentiary testing had occurred; 3) a concession made in the presence of a contemporaneous objection from the defendant; or 4) a concession made in direct conflict with the defendant's testimony. In other words, there’s no “rule of per se ineffectiveness” in cases where counsel concedes guilt on one count “in light of overwhelming evidence on that count.” ¶¶28-30. But does this mean that counsel may unilaterally derive such a strategy? Such an implication -- though it might be read into the decision -- would be most unwise. The Supreme Court subsequently upheld a strategic course by counsel to concede guilt in the opening phase of a capital trial in the hope of obtaining a favorable outcome at the penalty stage, Florida v. Nixon, 03-931, 12/13/04, but that case may be read to require consultation with if not exactly personal assent by the client. The holding's narrowness should be kept in mind (emphasis supplied): "When counsel informs the defendant of the strategy counsel believes to be in the defendant’s best interest and the defendant is unresponsive, counsel’s strategic choice is not impeded by any blanket rule demanding the defendant’s explicit consent." See U.S. v. Thomas, 9th Cir No. 03-56750, 8/3/05 (court "assume(s) that counsel’s concession of guilt without consultation or consent is deficient," in light of Nixon's articulation of counsel's duty to explain to client "overarching defense strategy"). It may be, then, that counsel is obliged to tell the defendant the strategy involves conceding guilt, but not obliged to get approval. To the extent Nixon authorizes scrutiny of the reasonableness (as opposed to authorization) of this sort of strategy, the result, it should be mentioned, was foreshadowed by Yarborough v. Gentry, 540 U.S. 1 (2003) ("confessing a client’s shortcomings ... is precisely the sort of calculated risk that lies at the heart of an advocate’s discretion"; counsel's candor might establish credibility with the jury and direct focus toward and in favor of the theory of the defense). This sort of strategy has been approvingly termed by some courts as "confession and avoidance," which is simply shorthand for avoiding lost credibility by arguing a lost cause; an effort, that is, to shift focus from strong evidence against the defendant to more favorable matter. U.S. v. Fredman, 9th Cir No. 03-35808, 12/10/04 (note, though, the concurrence's stress on the utter lack of any other potential strategy, and the caution that this "tactic is not something courts ordinarily will approve" -- the impact if any of Nixon, which came mere days later, on that caution remains to be seen). Same for the following, pre-Nixon authorities: U.S. v. Holman, 314 F.3d 837 (7th Cir. 2002) ("an attorney’s concession of a client’s guilt without any indication of the client’s consent to the strategy is deficient conduct for Strickland purposes"; however, no prejudice under the facts). Holman relied principally on Earl Wiley v. Sowders, 647 F.2d 642 (6th Cir. 1981), and Elmer Wiley v. Sowders, 669 F.2d 386 (6th Cir. 1982), and reasoned that the problem was that "Holman's counsel essentially gave up the same constitutional rights that Holman would have relinquished had he plead guilty to Count 1 before trial." That rationale may no longer be viable in light of Nixon; yet, if focus is on duty to consult, as opposed to obtain assent, then as noted a defeicient-performance argument could well be made. The challenged concession by Holman's attorney occurred, the court stressed, "at the beginning of trial," and not "at the very end of trial," when counsel would have been able to assess the possibility of a favorable verdict. To the extent that the inquiry is one of reasonableness then the timing of the concession may well be critical. But its timing is at least arguably meaningless if the claim of error lies in bypassing the protections of a judicial guilty plea colloquy -- which is precisely the Holman court's rationale: ... Rule 11 ensures that a guilty plea is made freely and knowingly, but if a defendant pleads not guilty, he enjoys no protection against an appeal to the jury to find him guilty. A similar side door—stipulating without a defendant’s prior consent to facts which prove the defendant’s guilt despite a not guilty plea—has long been closed. See United States v. Franzen, 668 F.2d 933, 941 (7th Cir. 1982).... See also People v. Campbell, Ill. SCt No. 994425, 12/18/03: ... (W)e agree with defendant that defense counsel cannot stipulate to facts which establish the guilt of the accused because the constitutional right implicated in that situation is the right of a defendant in a criminal case to plead not guilty. ... (W)e hold that counsel in a criminal case may waive his client's sixth amendment right of confrontation by stipulating to the admission of evidence as long as the defendant does not object to or dissent from his attorney's decision, and where the decision to stipulate is a matter of legitimate trial tactics or prudent trial strategy. Where the stipulation includes a statement that the evidence is sufficient to convict the defendant or where the State's entire case is to be presented by stipulation, we find that a defendant must be personally admonished about the stipulation and must personally agree to the stipulation. But it does seem clear, after Nixon, that establishing deficient performance in the concession of guilt isn't enough -- you must also show prejudice, see, e.g., U.S. v. Thomas.

Deficient Performance -- Conceding Guilt State v. William A. Silva, 2003 WI App 191, PFR filed 9/4/03 For Silva: Martin E. Kohler, Brian Kinstler, Donald E. Chewning Issue/Holding: (State v. Gordon, 2003 WI 69, followed. ¶15 n. 4:) ¶19 We are satisfied that, under the circumstances, Silva’s allegations do not defeat the strong presumption that trial counsel rendered adequate assistance. Silva’s trial attorney did as well as most attorneys would have done. Stating that Silva was “technically guilty” had two beneficial effects: first, it telegraphed to the trial court that if any doubt existed in the trial court’s mind, the minor nature of the act could act as a controlling factor in finding Silva not guilty; and second, the strategy emphasized the idea that the matter was overcharged, setting up an argument for leniency at sentencing. Thus, counsel did not abdicate his role in the adversarial process. ¶20 Moreover, given the strength of the State’s case, the attorney’s closing argument was also not beyond the realm of “reasonably effective representation,” which is the test we must apply. See State v. McMahon, 186 Wis. 2d 68, 80, 519 N.W.2d 621 (Ct. App. 1994). The six-year-old girl was a very articulate witness. She reported the attack to her mother as soon as she was able to get her mother’s attention, which was the next day. Another significant consideration is the fact that the girl’s father testified that when he confronted Silva, his half-brother, Silva not only displayed all the signs of guilt, but also did not deny the accusation. See Caccitolo v. State, 69 Wis. 2d 102, 110, 230 N.W.2d 139 (1975) (silence in the face of an accusation that most people would deny is an admission). Thus, Silva is not entitled to a new trial on this basis.

Deficient Performance -- Examination of Witness

(Cross-)Examination of Witness with Respect to Immunity Grant

State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06

For Demmerly: Edward J. Hunt

Issue/Holding: Counsel’s cross-examination of state’s witness testifying under a grant of immunity was adequate where it revealed that the witness’s motivation for testifying was a desire to receive leniency on his pending charges, ¶22; and, also where any confusion about the grant of immunity was clarified by the trial court’s accurate admonition to the jury on the matter, ¶22.

Examination of Witness – Open-Ended Question

State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06

For Rodriguez: Donna L. Hintze, SPD, Madison Appellate

Issue/Holding: ¶39      Questions that call for a narrative are generally improper because they do not alert court and counsel to the subject about which the witness is about to testify. There are exceptions, however, and whether to permit a question calling for a narrative response is within the trial court’s discretion under Wis. Stat. Rule 906.11, Wisconsin’s version of Rule 611 of the Federal Rules of Evidence. See United States v. Garcia, 625 F.2d 162, 169 (7th Cir. 1980) (“There is, of course, nothing particularly unusual, or incorrect, in a procedure of letting a witness relate pertinent information in a narrative form as long as it stays within the bounds of pertinency and materiality.”). Absent a blurt-out in response to an open-ended question that significantly prejudices the adversary, it is rare for an open-ended question to require reversal. See State v. Jeannie M.P., 2005 WI App 183, ¶8, 286 Wis. 2d 721, 731, 703 N.W.2d 694, 699 (trial lawyer did not provide constitutionally deficient performance when he explained at a postconviction evidentiary hearing that he had a strategic reason for asking an open-ended question). Rodriguez has not shown prejudice here; much of what the officers “added” was cumulative, and, further, if Rodriguez’s trial lawyer had objected, the prosecutor could have simply reviewed his notes and asked more focused questions to each officer.

Deficient Performance: Presentation/Examination of Witnesses – Opening Door to “Haseltine” Evidence, on Tactical Grounds

State v. John R. Maloney, 2004 WI App 141, affirmed, 2005 WI 74

For Maloney: Lew A. Wasserman

Issue/Holding: ¶18. Maloney complains trial counsel invited a Haseltine violation against him by asking on cross-examination whether Skorlinski believed anything Maloney had told him in the investigation. See State v. Haseltine, 120 Wis. 2d 92, 352 N.W.2d 673 (Ct. App. 1984). We disagree. … ¶21. At the Machner hearing, Boyle explained that his strategy was to criticize Skorlinski's investigative techniques on this particular case …. … ¶23. We cannot improve on the trial court's ruling. It is significant that the trial court had the opportunity to both see and hear counsel's presentation and evaluate its purpose in conjunction with counsel's testimony. See State v. Curtis, 218 Wis. 2d 550, 554, 582 N.W.2d 409 (Ct. App. 1998). Ultimately, the court determined counsel had a reasonable trial strategy-which is virtually unassailable in an ineffective assistance of counsel analysis. See State v. Nielsen, 2001 WI App 192, ¶44, 247 Wis. 2d 466, 634 N.W.2d 325. We see no reason why the Haseltine rule cannot be strategically waived by the party that would normally seek its protections. Trial counsel is not ineffective simply because an otherwise reasonable trial strategy was unsuccessful. The supreme court affirmed with the following comment: ¶44      Again, we conclude that Maloney has failed to show that his trial counsel's performance was deficient.  Here, the purpose and effect of the cross-examination was not to impermissibly comment on the credibility of Maloney. Rather, it was to impeach Agent Skorlinksi by portraying him as a good but closed-minded investigator who failed to consider other suspects. As such, the questioning was not violative of the Haseltine rule. State v. Jackson, 187 Wis. 2d 431, 437-38, 523 N.W.2d 126 (Ct. App. 1994). See also State v. Johnson, 2004 WI 94, ¶¶2, 19-24, 26, 273 Wis. 2d 626, 681 N.W.2d 901. The fact that the strategy ultimately proved unsuccessful does not make it any less reasonable for purposes of evaluating Maloney's claim.

Deficient Performance: Presentation/Examination of Witnesses – Impeachment State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04 For Arredondo: James A. Rebholz Issue/Holding: “¶33. Second, Arredondo claims that his trial attorney failed to impeach Garza's testimony with false statements Garza made to the police. This claim fails on both the deficiency and prejudice prongs. Arredondo cannot show prejudice because Garza admitted on direct-examination that he lied to the police….”

Deficient Performance: Presentation/Examination of Witnesses – Impeachment State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04 For Arredondo: James A. Rebholz Issue/Holding: Counsel’s failure to secure testimony of witnesses as impeachment of other-crimes evidence wasn’t ineffective where there was no showing that their testimony “would have directly impeached” the other-crimes complainant’s version. ¶48.

Deficient Performance: Presentation/Examination of Witnesses – Defendant's Testimony from Prior Trial in Different Case State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04 For Arredondo: James A. Rebholz Issue/Holding: ¶49. Arredondo further claims that his trial lawyer should have moved to admit pursuant to Wis. Stat. Rule 908.045(1) (declarant unavailable) the transcript of Arredondo's testimony at the 1995 sexual-assault trial. Arredondo contends that the trial court would have been "required" to admit his prior testimony because the other-acts evidence placed him in the "constitutionally untenable" position of either testifying in the homicide trial about the Kim S. assault and opening himself to cross-examination or foregoing the opportunity to rebut Kim S.'s testimony. We disagree. The criminal process is replete with situations requiring "`the making of difficult judgments'" concerning tensions between constitutional rights. State v. Hall, 103 Wis. 2d 125, 148, 307 N.W.2d 289, 299-300 (1981) (quoted source omitted). It is not unconstitutional to require a defendant to choose between testifying or remaining silent even though that choice affects other criminal charges. See ibid. Arredondo has failed to prove that his trial lawyer provided ineffective assistance.

Deficient Performance: Presentation/Examination of Witnesses – Impeachment State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04 For Arredondo: James A. Rebholz Issue/Holding: Counsel wasn’t ineffective for failing to cross-examine a witness on the consideration he received in a pending prosecution for testifying against Arredondo where the witness admitted to the consideration during direct examination. ¶¶37-38.

Deficient Performance: Presentation/Examination of Witnesses – Defendant’s Testimony: Waiver of and Revocation of Waiver State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04 For Arredondo: James A. Rebholz Issue/Holding: ¶27. Arredondo argues that his trial lawyer was ineffective for advising him not to testify. We disagree. At the Machner hearing, Arredondo's attorney testified that he advised Arredondo not to testify for two main, albeit related, reasons. First, the lawyer testified that he believed Arredondo would make a poor witness because Arredondo told him inconsistent details about the night Klamann was killed, and that he would be discredited on cross-examination because he told the police inconsistent things. Second, Arredondo's attorney testified that if Arredondo testified he believed that an incriminating statement Arredondo gave to a detective that had been suppressed prior to trial would have been admissible to impeach Arredondo. See Harris v. New York, 401 U.S. 222, 225-226 (1971) (statements obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1936), can be used for impeachment purposes). This strategy was professionally reasonable. See State v. Felton, 110 Wis. 2d 485, 502-503, 329 N.W.2d 161, 169 (1983) (we will uphold counsel's strategic decision if it was rationally based on the facts of the case and the law). Nor was counsel’s performance deficient with respect to revoking this waiver: before resting, counsel confirmed that Arredondo did not in fact want to testify, ¶29. And, given the trial court’s subsequent finding “that Arredondo's belated desire to testify was an attempt to manipulate the system[,] … Arredondo's attorney was not required to help Arredondo pursue that ‘strategy.’ See Nix v. Whiteside, 475 U.S. 157, 168-169 (1986) (attorney's duty to prevent fraud upon the court).” Id.

Deficient Performance -- Examination of Witness -- Defendant's Perjurious Testimony State v. Derryle S. McDowell, 2004 WI 70, affirming 2003 WI App 168; habeas relief denied, 7th Cir No. 06-3288, 8/15/07

For McDowell: Christopher J. Cherella

Amici: Keith A. Findley, John A. Pray, Frank Remington Center & WACDL Issue/Holding: (Given the significance of the holding, at-length quoting is required in regard to counsel’s performance obligations relative to a client whose testimony may be perjurious:) ¶2. This case discusses the important issue of how criminal defense attorneys should deal with the prospect of client perjury. Specifically, it addresses under what circumstances counsel has knowledge of the perjury sufficient to trigger a requirement that a client testify in the unaided narrative rather than the usual question and answer format.2 Prior to the decision of the court of appeals in this case, no Wisconsin case had defined what standard should be employed to determine when attorneys "know" their clients will lie. ¶3. We agree with the court of appeals that defense counsel may not substitute narrative questioning for the traditional question and answer format unless counsel knows that the client intends to testify falsely. Absent the most extraordinary circumstances, such knowledge must be based on the client's expressed admission of intent to testify untruthfully. We further determine that attorneys must advise the client, opposing counsel, and the circuit court of the change of questioning style prior to use of the narrative. ¶4. In the case before us, we conclude that defense counsel's performance was deficient in two respects: (1) he shifted to narrative questioning without advising his client beforehand; and (2) he used narrative questioning despite believing that his client intended to testify truthfully. We also conclude, however, that McDowell suffered no prejudice under the facts of this case. Finally, we reject McDowell's claim that the circuit court erred in failing to permit him new counsel. Accordingly, we affirm the court of appeals. 2 Commentators have described the narrative format as follows: The narrative approach allows the lawyer to put the client on the stand and allow him to tell his story in a free narrative manner. While this occurs, the lawyer does not engage in the testimony; she asks no questions of the client and presents no corroborating evidence. The client is allowed to present his testimony to the court without help from the attorney. In his closing argument, the attorney does not and cannot rely on any of the client's false testimony. Brian Slipakoff & Roshini Thayaparan, The Criminal Defense Attorney Facing Prospective Client Perjury, 15 Geo. J. Legal Ethics 935, 951 (2002) (internal citations omitted). There’s more to it than that, of course. A principal source of underlying tension lies in the potentially competing principles of zealous advocacy and candor toward tribunal. The court attempts to resolve the dilemma by imposing “an extremely high standard for evaluating prospective perjury”: ¶42. Thus, we are satisfied that the approach taken by the co urt of appeals was the appropriate one.15 Despite the multitude of standards, courts "generally have set an extremely high standard for" evaluating prospective perjury. Monroe H. Freedman, But Only If You "Know," in Ethical Problems Facing the Criminal Defense Lawyer 138 (Rodney J. Uphoff, 1995). ¶43. Accordingly, we determine that an attorney may not substitute narrative questioning for the traditional question and answer format unless counsel knows that the client intends to testify falsely. Absent the most extraordinary circumstances, such knowledge must be based on the client's expressed admission of intent to testify untruthfully. While we recognize that the defendant's admission need not be phrased in "magic words," it must be unambiguous and directly made to the attorney. ¶44. We agree with the observation of the court of appeals that Supreme Court Rule 20:3.3 must be harmonized with our determination here. Like the court of appeals, we "interpret SCR 20:3.3(c)'s suggestion that counsel 'may refuse to offer evidence that the lawyer reasonably believes is false' to apply to circumstances beyond the borders surrounding the questions involving a criminal defendant's stated intention to testify falsely." McDowell, 266 Wis. 2d 599, 47. Indeed, "[a]ny other interpretation would, in our estimation, produce an irreconcilable conflict between the two rules." Id. (citing State v. Zielke, 137 Wis. 2d 39, 51, 403 N.W.2d 427 (1987)). The court goes on to say that counsel should attempt to dissuade the client from committing perjury, ¶45, and should also consider moving to withdraw, ¶46: ¶47. If, however, the motion to withdraw is denied and the defendant insists in committing perjury, we conclude that counsel should proceed with the narrative form, advising the defendant beforehand of what that would entail. While far from perfect, we recognize that the narrative represents the best of several imperfect options.17 It "best accommodates the competing interests of the defendant's constitutional right to testify and the attorney's ethical obligations." People v. Johnson, 62 Cal. App. 4th 608, 630, 72 Cal. Rptr. 2d 805 (1998).18 ¶48. Finally, we agree with the court of appeals that attorneys must also inform opposing counsel and the circuit court of the change of questioning style prior to use of the narrative. Courts, in turn, shall be required to examine both counsel and the defendant and make a record of the following: "(1) the basis for counsel's conclusion that the defendant intends to testify falsely; (2) the defendant's understanding of the right to testify, notwithstanding the intent to testify falsely; and (3) the defendant's, and counsel's, understanding of the nature and limitations of the narrative questioning that will result." McDowell, 266 Wis. 2d 599, ¶57. It’s probably fair to say that you can’t really square the circle between duty to client and duty to tribunal. Once you inform court and DA of “the basis for” your conclusion, then you’ve slipped the bounds of client confidentiality and zealous advocacy. The meta-message seems to be that candor toward tribunal occupies higher moral ground than partisan advocacy but the potential conflict between the two represents a thicket to be avoided at all costs; hence, construction of a very high wall. The theoretical tensions remain – the court’s seeming confidence that this regime indeed harmonizes the rules being a bit glib; is counsel, for example, prohibited from arguing the narrative testimony to the fact-finder? – but with a test this stringent maybe the tensions won’t ever be actualized. But “maybe not” of course also means “maybe so,” and with that in mind … The ABA promulgated a new Rule 3.3 in Feb. 2002, and Wisconsin Ethics 2000 Committee has proposed its adoption. You could do worse than the recent discussion in Nathan M. Crystal, “False Testimony by Criminal Defendants,” 2003 U. Ill. L. Rev. 1529, which Crystal himself summarizes this way: Revised Rule 3.3 poses a number of interpretative issues. After analyzing the application of the rule to false testimony by the criminal defendant, this article concludes that the rule is likely to result in the use of the narrative solution to a much greater extent than the drafters may have intended. The 1986 case of Nix v. Whiteside held that a lawyer's successful efforts by remonstration to prevent false testimony by a criminal defendant did not violate the defendant's Sixth Amendment right to effective assistance of counsel. This article argues that Nix is a constitutional outlier leaving unresolved a number of Sixth, Fifth, and Fourteenth Amendment issues. The ethics and constitutionality of responses by counsel to false testimony by the criminal defendant are not much closer to resolution than they were a quarter century ago. His prediction about increased use of narrative testimony might be exaggerated, in view of the stiff test McDowell imposes. But his suggestion that constitutional issues remain unresolved is worthy. And his punchy description of Nix v. Whiteside as a “constitutional outlier” hints at a trend which seems to be entrenched: the use of ethical rules to decide issues of criminal procedure. There are those who think that the Court simply should not have seized Whiteside as an opportunity to discuss ethical rules. But we seem well past that point, and the rules of ethics have leached into other areas (think confidentiality vs. evidentiary privilege). Ethics being what they are, they’re going to trump anything else. For other relatively recent authority see, U.S. v. Midgett, 342 F.3d 321 (4th Cir. 2003). Noting "little consensus" on how a lawyer should deal with a client's "potentially perjurious testimony," the court, consistent with McDowell, held that "counsel’s mere belief, albeit a strong one supported by other evidence, was not a sufficient basis to refuse Midgett’s need for assistance in presenting his own testimony." Tension between zealous advocacy and duty to the judicary arises when counsel knows the client intends to commit perjury. Short of that, counsel has a duty to put the client's testimony before the jury. Midgett, it should be noted, didn't deal with the narrative vs. Q & A problem.

Deficient Performance -- Examination of Witness -- Eliciting Comment on Witness's Credibility State v. Robert L. Snider, 2003 WI App 172, PFR filed 8/22/03 For Snider: Timothy J. Gaskell Issue/Holding: The detective’s testimony as to what he believed at the time he was conducting the investigation did not amount to a comment on the credibility of a witness, hence was not deficient performance. ¶27. Moreover, “(c)ounsel's attempt to discredit the investigating detective by showing that he came to a premature conclusion regarding what had occurred, and thereafter pursued a one-sided investigation, was a reasonable trial tactic and did not constitute deficient performance.” ¶28.

Eliciting Unanticipated Answer. State v. Liliana Petrovic, 224 Wis.2d 477, 592 N.W.2d 238 (Ct. App. 1999).  For Petrovic: Robert B. Rondini Issue/Holding: Counsel's cross of a detective elicited testimony that Petrovic refused to answer questions about her drug involvement during custodial examination. The court rejects her argument that counsel's examination was deficient. Counsel "reasonably believed," based on pretrial hearings that she had answered such questions (with denials). Counsel's "unwittingly" eliciting testimony about her assertion of rights wasn't unreasonable.

Deficient Performance -- Failure to File (Direct) Appeal

Deficient Performance -- Failure to File Timely Direct Appeal

State ex rel. Ruven Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, reversing unpublished court of appeals order

For Seibert: Gregory P. Seibold; amicus briefs: Joseph N. Ehman, Glenn C. Cushing, SPD, Madison Appellate; Howard B. Eisenberg, Dean, Marquette Law School

Issue/Holding: Counsel's failure to accede to a client's unequivocal desire to file a direct appeal is deficient performance. ¶15.

Deficient Performance -- Failure to File Suppression Motion

Deficient Performance: Failure to Litigate Suppression Motion in Preference to Accepting Plea Offer

State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06

For Milanes: Joan M. Boyd

Issue/Holding: Counsel’s failure to litigate a ( Miranda) suppression motion was not deficient where the issue turned purely on a credibility dispute between defendant and the detective and pursuit of the motion would have required rejecting a favorable offer, ¶¶15-16.

< Deficient Performance: Failure to File Suppression Motion State v. Peter R. Cash, 2004 WI App 63 For Cash: Lynn M. Bureta Issue/Holding: Counsel was not ineffective for failing to file a suppression motion based on his assessment that the arrest was supported by probable cause; “the highly incriminating evidence against Cash known” to the authorities before the arrest in fact supported probable cause. ¶¶24-25.

Note: "To satisfy the Strickland test where the asserted attorney error is a defaulted Fourth Amendment claim, a defendant must first prove that the Fourth Amendment claim is meritorious," U.S. v. Stewart, 7th Cir. No. 03-2377, 11/9/04. Same, re: suppression of eyewitness ID, Thomas v. Varner, 3rd Cir No. 04-2856, 1/18/06 ("Thomas must show that he would likely have prevailed on the suppression motion and that, having prevailed, there is a reasonable likelihood that he would not have been convicted")

Deficient Performance -- Failure to Investigate / Choice of Defense Theory

Effective Assistance – Deficient Performance – Failure to Adduce Expert Testimony on False Confessions

State v. Jason K. Van Buren, 2008 WI App 26, PFR filed 1/23/08

For Van Buren: Waring R. Fincke

Issue: Whether trial counsel’s failure to adduce expert testimony on false confessions was deficient.

Holding: ¶18      Here, we do not address the prejudice prong of Strickland because we conclude that Van Buren’s counsel was not deficient. A finding of deficient performance “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. The representation must fall below an objective standard of reasonableness as measured against prevailing professional norms. Id. at 688. The State argues that Van Buren’s counsel could not be ineffective because there are no published Wisconsin cases stating that expert testimony on false confessions is admissible, and the authorities in other states are split. Because a criminal defense attorney “is not required to object and argue a point of law that is unsettled,” State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994), the State argues, failing to adduce expert testimony when that testimony’s admissibility is not firmly established can never be ineffective assistance of counsel. ¶19      Van Buren responds that even if there is no Wisconsin holding squarely allowing false-confession expert testimony at trial, the cases disallowing it come from jurisdictions that adhere to the much more restrictive Daubert [6] standard for scientific evidence. He argues that the evidence should and would come in under Wisconsin’s lower standard. See City of West Bend v. Wilkens, 2005 WI App 36, ¶¶23-24, 278 Wis. 2d 643, 693 N.W.2d 324. However, we must keep in mind that this is an ineffective assistance claim. The issue is not whether the evidence could have come in, but whether Van Buren’s counsel, by not offering it, fell below an objective standard of reasonableness as measured against prevailing professional norms. Strickland, 466 U.S. at 688. Even if Van Buren is correct and false-confession expert testimony should be admitted, the published and unpublished cases contain only one instance of its introduction at a trial in Wisconsin, nearly fifty years ago. [7] Given this fact, we could not hold that the failure to introduce such testimony falls below “prevailing professional norms.” The State increasingly says: The asserted deficiency involved a strategy too novel to hold counsel accountable for overlooking; to which the court says: You betcha! E.g., State v. John R. Maloney, 2005 WI 74, ¶¶23-30 (“In State v. Thayer, 2001 WI App 51, ¶14, 241 Wis. 2d 417, 626 N.W.2d 811, the court of appeals recognized that ‘counsel is not required to argue a point of law that is unclear.’ … Given the unclear and unsettled nature of SCR 20:4.2's applicability in Wisconsin to the pre-charging criminal investigative setting, we conclude that trial counsel's failure to challenge the admissibility of the videotape evidence on this ground did not constitute deficient performance.”); State v. Jennifer Wery, 2007 WI App 169, ¶17 (“Deficient performance is limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue. State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621 (Ct. App. 1994). Wery’s counsel was presented with a highly unusual set of facts and was without any case law providing guidance on how to handle postverdict juror dissent in a bifurcated trial.”) Once might be an outlier, but two or more instances of such behavior establish, as courts like to say in the § 904.04 context, a pattern of conduct. Which is to say, a worrisome and undoubtedly recurrent development, if not in the abstract then at least when applied to contexts such as this one. Consider: no claimed here that the expert testimony would have been inadmissible, just that there’s a deficit of published appellate discussion on expert testimony and false confessions. So what? Perhaps the absence of appellate litigation illustrates not the issue’s novelty but its very acceptance at the trial court level. Perhaps, in other words, this type of evidence readily comes in, obviating the need for appellate litigation. (A perfectly reasonable assumption, especially in light of Van Buren’s altogether correct observation that Wisconsin isn’t even a Daubert state, that we freely admit expert testimony that might not be admissible elsewhere. And that leads to a subsidiary point, implicit if not explicit in Van Buren’s argument: you start with an assumption of admissibility and work backward from there. The question isn’t whether there was a horribly complex admissibility problem—clearly, there wasn’t—but simply whether reasonably proficient defense counsel would have perceived a need to attack the confession as false; and it is precisely that elementary question that the court now unconvincingly sidesteps.) Federal habeas practitioners may recognize the subtle absorption of an AEDPA-type limitation: unless you can point to exactly controlling precedent, you can’t even engage a process of review. And without the benefit of statutorily-imposed limitations, or straitened review under notions of comity or collateral attack. In any event, the answer might be to put on expert attorney testimony to establish that notwithstanding precisely binding caselaw, the normally prudent practitioner would have performed differently. In any event, if your claimed deficiency involves something even arguably novel you’re going to have to anticipate this issue as part of your postconviction strategy.

Deficient Performance: Law Must Be Clear Enough that Counsel Reasonably Should Have Known of Issue – Counsel not Obliged to Object Where Indication of Juror Dissent AfterPhase I (Guilt) Verdict Accepted and Phase II (NGI) Deliberations Begun

State v. Jennifer Wery, 2007 WI App 169,

For Wery: Elizabeth Ewald-Herrick

Issue/Holding: ¶17   Wery’s counsel’s failure to object did not constitute deficient performance. Deficient performance is limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue. State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621 (Ct. App. 1994). Wery’s counsel was presented with a highly unusual set of facts and was without any case law providing guidance on how to handle postverdict juror dissent in a bifurcated trial. Indeed, the court and the parties acknowledged the absence of controlling law in their discussion of the issue. While it may have been ideal for her counsel to argue that the court should question the juror, order the jury to return to deliberations or declare a mistrial, her counsel was not required to object and argue an unsettled point of law. See id. at 84.

Deficient Performance: Adequate Investigation – Revocation of Extended Supervision: Alternatives to Revocation

State ex rel. Clayborn L. Walker v. Frank, 2007 WI App 142, PFR filed 6/1/07

For Walker: Amelia L. Bizzaro

Issue: Whether counsel deficiently advised Walker to waive ES revocation, in that counsel determined that investigation of alternatives to revocation would be futile.

Holding: ¶14 Dudley’s decision to advise Walker to waive the revocation hearing is within the core of a lawyer’s responsibility to devise the best strategy to protect a client’s interests. … ¶15 “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690. The issue is, therefore, whether Dudley’s reliance on what he knew was the adamant opposition to alternatives to revocation by the agent following the agent’s Plotkin analysis, and Dudley’s assessment that the administrative law judge who would preside over the revocation hearing would almost never consider alternatives for absconders, especially in face of the agent’s opposition, and Dudley’s desire to get for Walker at least the perception that Walker was being cooperative so as to lessen the chance that the administrative law judge’s recommendation to the reconfinement court would be more severe than the agent’s two-year recommendation, made his decision not to explore alternatives to revocation deficient performance. We agree with the circuit court that it did not. ¶16 … We agree with the circuit court’s assessment that, based on its findings of fact, the likelihood that the alternatives to revocation identified by Walker at the evidentiary hearing on his petition for a writ of habeas corpus would have been accepted by the administrative law judge in lieu of revocation was virtually nil. … ¶17 A lawyer’s failure to investigate is not deficient performance if he or she reasonably concludes, based on facts of record, that any investigation would be mere wheel-spinning and fruitless. See Greiner v. Wells, 417 F.3d 305, 321 (2d Cir. 2005) (“[W]hen there is ‘reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable.’”) (quoting Strickland in a slightly different context, 466 U.S. at 691). Based on the circuit’s findings of fact, this is the situation here. …

Deficient Performance: Adequate Investigation -- Alibi Defense

State v. Eric D. Cooks, 2006 WI App 262

For Cooks: Joseph E. Redding

Issue/Holding: ¶50      Cooks, as the trial court found, provided Barth with the names of alibi witnesses and Barth had Cooks testify to his alibi. However, Barth failed to investigate the potential alibi witnesses and argue Cooks’ alibi to the jury. Barth failed to do so despite the fact that a corroborated alibi clearly would have reinforced Barth’s misidentification theory of defense. Simply put, Barth, at the very least, had a duty to investigate Cooks’ alibi and his failure to fulfill that duty constitutes deficient performance. See Washington v. Smith, 219 F.3d 620, 631 (7th Cir. 2000). Thus, our focus is on the prejudice prong of the Strickland test.

Deficient Performance: Adequate Investigation -- Failure to Pursue NGI Defense

State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06

For Milanes: Joan M. Boyd

Issue/Holding: Failure to pursue an NGI defense wasn’t deficient: ¶19      … The evidence in support of Milanes’ claim is remarkably weak; the strongest piece of evidence is the report of his psychiatric expert, which contains a conclusory statement that Milanes meets the statutory requirements. We will not discuss this issue in detail, but only note that Milanes’ argument on it fails for the same reason that his argument about the allegedly coerced confession did:  the trial counsel was objectively reasonable in concluding that such a defense was highly unlikely to succeed, and Milanes would be better off pleading no contest.

Deficient Performance: Adequate Investigation -- Failure to Investigate Facts (Impeachment of Key Witnesses)

State v. Jeannie M.P., 2005 WI App 183

For Jeannie M.P.: Michael Yovovich, Eileen Hirsch, SPD, Madison Appellate

Issue/Holding: Where counsel knew, or should have known, of evidence establishing possible motives for each of the two crucial State’s witnesses; and where adducing evidence of those motives would have been consistent with the chosen theory of defense, counsel’s failure to bring out that evidence at trial was deficient, ¶¶11-25. ¶25      In sum, we conclude that the defendant has made a sufficient showing that her trial counsel was made aware of the existence of evidence that could be used to impeach the credibility of the State’s two key witnesses. We also conclude that counsel’s failure to investigate facts that were readily available to him, and his failure to employ those facts at trial to undermine the credibility of the State’s two key witnesses by showing their motives to fabricate the assault allegation, constituted representation that fell below an objective standard of reasonableness. As in Thiel, 264 Wis.  2d 571, ¶46, “[t]he credibility of the complaining witness was paramount to this case,” as was the credibility of his girlfriend. And, like the supreme court in Thiel, we conclude that, “[u]nder the specific facts of this case, … it was objectively unreasonable for … counsel not to pursue further evidence to impeach” the alleged victim and his girlfriend. See id., ¶50.  Unusual facts, to say the least, ¶3: … The defendant’s estranged husband, John, claimed that while he and his girlfriend were asleep, the defendant broke into their home and entered the couple’s bedroom, where she partially disrobed and mounted John, who was sleeping naked on top of the sheets. John testified that he awoke to find the defendant engaging him in intercourse and ordered her to get off of him. John’s girlfriend, Susan, testified that she woke up as this was occurring and observed the defendant doing what John described. … The defense theory was to concede the sexual activity, but to argue that it was consensual (coerced, really, in the sense that John wanted sex in exchange for his agreement to end their custody dispute), and that Susan caught them in the act, ¶10. Counsel failed to show that Jeannie and John’s divorce was very acrimonious, a showing that would have advanced the theory that Jeannie would agree to sex in order to lessen the hostility, ¶14. Moreover, a sexual assault conviction against her would give him leverage in their custody dispute, ¶15. As to Susan, counsel either knew or should have known of her animosity toward Jeannie, including her threat to make Jeannie’s life a “living hell,” ¶17. Impeaching the witnesses on these grounds “would have complemented the (chosen) defense,” ¶22.

Deficient Performance: Failure to Research Applicable Law and Object to Inadmissible Evidence (PSR)

State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04

For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: Counsel’s failure to research admissibility of testimony which controlling caselaw plainly regards as confidential was deficient: ¶23. While Swierenga's testimony was admissible, Geske's was not. Crowell, which Greve reaffirmed, plainly instructs that information obtained during a court-ordered presentence investigation must remain confidential unless the court has specifically authorized its use under the limited confidentiality exception provided in Wis. Stat. § 972.15(4). Indeed, Jimmie's counsel admitted at the Machner hearing that he had not researched the admissibility of Geske's testimony prior to the perjury trial and had he read Crowell, he would have objected to Geske's testimony. Because Jimmie's counsel did not object to Geske's testimony, the court did not have the opportunity to review the propriety of authorizing the release of the information Geske obtained during the investigation. ¶24. … Jimmie's counsel's failure to object to Geske's testimony constitutes deficient performance. Like effect, Smith v. Dretke, 5th Cir No. 04-10770, 7/12/05: ... Failing to introduce evidence because of a misapprehension of the law is a classic example of deficiency of counsel. See, e.g., Williams v. Taylor, 529 U.S. 362, 395 (2000) (noting, when finding deficiency of counsel, that petitioner’s lawyers “failed to conduct an investigation that would have uncovered extensive records graphically describing Williams’ nightmarish childhood, not because of any strategic calculation but because they incorrectly thought that state law barred access to such records”). ... This misunderstanding could have been corrected with minimal legal research. And, Thomas v. Varner, 3rd Cir No. 04-2856, 1/18/06 ("Courts have routinely declared assistance ineffective when 'the record reveals that counsel failed to make a crucial objection or to present a strong defense solely because counsel was unfamiliar with clearly settled legal principles.' 3 Wayne LaFave et al., Criminal Procedure § 11.10(c), at 721 (2d ed. 1999) ....").

Deficient Performance: Adequate Investigation State v. Michael A. DeLain, 2004 WI App 79, PFR granted, on other grds. For DeLain: Robert R. Henak Issue/Holding: Trial counsel’s failure to “investigate and present evidence of exculpatory prior consistent statements DeLain made to co-workers” was not the product of deficient performance, given that DeLain never told counsel about these remarks, and that counsel interviewed all of the co-workers. ¶18.

Deficient Performance: Failure to Investigate Confession to Crime by Defendant's Brother

State v. Joseph J. Guerard, 2004 WI 85, reversing unpublished decision of court of appeals

For Guerard: Joseph L. Sommers

Issue/Holding: Failure to interview or subpoena an investigator to whom the defendant’s brother had confessed was deficient performance; the basis for this failure, that counsel “thought the confessions were hearsay and that York's reports were the work product of the State Public Defender's office, and because Daniel had not signed any statement,” was objectively unreasonable, ¶45.

Deficient Performance: Failure to Adduce Expert Testimony State v. Michael A. DeLain, 2004 WI App 79, PFR granted, on other grds. For DeLain: Robert R. Henak Issue/Holding: Trial counsel’s failure to adduce expert testimony regarding the propriety of defendant’s “provocative therapy” approach in counseling youths was not deficient but, rather, the product of a reasoned strategy which aimed “to avoid expert testimony as much as possible” so that the jury would be disinclined to pass judgment on the defendant’s therapy techniques. ¶20. But wouldn’t that precise function be served by expert testimony that the techniques were indeed reasonable? In any event, the court goes on to say that, even though the defendant did testify and even though his testimony apparently did open the door to the propriety of his therapy approach, counsel “felt he did an effective job of impeaching the State’s rebuttal expert witness.” ¶22. Support for idea that counsel should consult relevant forensic expert where such an expert would be the "only chance ... to establish so far as it was possible" the theory of defense, see Miller v. Anderson, 255 F.3d 455, 459 (7th Cir. 2001) (failure to consult DNA, treadmark, or footprint expert deficient, where such experts would have contradicted state's claim defendant at scene of crime); and Dugas v. Coplan, 1st Cir No. 04-1776, 10/31/05 (failure to consult arson expert deficient); Bell v. Miller, 2nd Cir No. 05-5235, 8/31/07 (only evidence ID'ing defendant was physically traumatized witness: "the failure of defense counsel to consider consulting an expert to ascertain the possible effects of trauma and pharmaceuticals on the memory of the witness is constitutionally ineffective").

Deficient Performance: Failure to Investigate -- Potential Alibi Witnesses State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04 For Arredondo: James A. Rebholz Issue/Holding: Failure to locate and present the testimony of a potential alibi witness wasn’t deficient given counsel’s testimony that his investigator couldn’t locate the witness, along with Arredondo’s failure to convince the court that the investigator had been informed where the witness lived or could be located. ¶36.

Note: For authority all but saying that failure to file notice of alibi, a procedural prerequisite to adducing alibi evidence, is deficient performance as matter of law, at least where alibi is suggested by facts, see Clinkscale v. Carter, 6th Cir. No. 02-4219, 7/8/04: With respect to the first prong of Strickland, the state relies upon the conclusion of the district court (and the magistrate) that Clinkscale failed to present sufficient evidence to rebut the presumption that his attorneys’ failure to file a timely alibi notice was part of a “sound trial strategy.” Strickland, 466 U.S. at 489. What that conclusion fails to recognize, however, is that even if Clinkscale’s attorneys subjectively believed that failing to file an alibi notice on time was in some way strategic – which is doubtful(8) – such a “strategy” cannot, under the circumstances presented in this case, be considered objectively “sound,” id., or “reasonable,” Roe v. Flores-Ortega, 528 U.S. 470, 481 (2000) (“The relevant question is not whether counsel’s choices were strategic, but whether they were reasonable.”). At least where – as here – alibi is a critical aspect of a defendant’s defense, there is nothing reasonable about failing to file an alibi notice within the time prescribed by the applicable rules when such failure risks wholesale exclusion of the defense. In this case, there would have been nothing to lose, yet everything to gain, from filing the alibi notice in compliance with Rule 12.1. Such a course of action would have preserved Clinskcale’s right to assert an alibi defense, but at the same time would not have tied him into asserting such a defense at trial. See Williams v. Florida, 399 U.S. 78, 84 (1970) (“Nothing in [a rule such as Rule 12.1] requires the defendant to rely on an alibi or prevents him from abandoning the defense; these matters are left to his unfettered choice.”). Therefore, based upon our consideration of counsel’s overall performance, and in view of all the facts in the record, we find that Clinkscale has met his burden, under the first prong of Strickland, of establishing that the performance of his trial counsel fell below an objective standard of reasonableness.

Deficient Performance: Failure to Investigate – Potential 3rd-Party Guilt State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04 For Arredondo: James A. Rebholz Issue: Whether trial counsel was ineffective for failing to investigate a theory of 3rd-party guilt, in the absence of any evidence linking that party to the crime. Holding: ¶31. A trial attorney may select a particular defense from the available alternative defenses. Felton, 110 Wis. 2d at 501-502, 329 N.W.2d at 169. We will uphold the strategic decision, even if it appears in hindsight that another defense would have been more effective, as long as the decision is rationally based on the facts of the case and the applicable law. Id., 110 Wis. 2d at 502-503, 329 N.W.2d at 169. ¶32. It was reasonable for Arredondo's attorney to present the general defense that a third person could have killed Klamann. There was little, if any, evidence linking Garza to the crime. Thus, it is unlikely that a jury would have found that Garza committed it. Under the theory of defense advanced by Arredondo's lawyer, however, the jury was free to reject the theory that Garza did it, but could still have found that someone other than Arredondo was responsible for the murder. The fact that this strategy failed does not make the attorney's representation deficient. See State v. Koller, 87 Wis. 2d 253, 264, 274 N.W.2d 651, 657 (1979).

Deficient Performance - Investigation - Strategy Determined At Time, Not Through Hindsight State v. Robert Jamont Wright, 2003 WI App 252 For Wright: Ann Auberry Issue/Holding: ¶35. Wright's appellate argument rests largely on Van Rybroek's testimony at the Machner hearing, which documents the unreliability of eyewitness testimony. However, as the trial court aptly observed, trial counsel's decision to forego an expert was made prior to Lomack surfacing as a potential witness and prior to the trial court's ruling that Van Rybroek's testimony was admissible under those changed circumstances. We assess the quality of counsel's performance by the standard of whether such performance was reasonable under the prevailing circumstances. See State v. Brewer, 195 Wis. 2d 295, 300, 536 N.W.2d 406 (Ct. App. 1995). Even if it appears in hindsight that another defense would have been more effective, counsel's strategic decision will be upheld as long as it is founded on rationality of fact and law. Id. We conclude that counsel's decision was appropriately founded and did not constitute deficient performance. Given the circumstances at the time, given trial counsel's experience, and given counsel's research in the area of eyewitness identification, we uphold the trial court's finding that counsel's decision to forego expert testimony in favor of impugning the eyewitness identifications on cross-examination was a reasonable strategy.

Deficient Performance -- Failure to Obtain DNA Tests State v. Evan Zimmerman, 2003 WI App 196, (AG) PFR filed 9/10/03 For Zimmerman: Keith A. Findley, UW Law School Issue/Holding: Counsel's admittedly non-tactical failure to obtain DNA results on hair found on the victim's pants and on scrapings from her fin