COUNSEL (For 7th Circuit 2254 habeas IAC cases, go here.) Updated 1/27/10

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

Right/Assertion/Waiver of Counsel Appointment Generally SPD Denial Inherent Judicial Authority Substitute Counsel Hearing Impairment Judicial Discretion Retained Counsel Generally 6th Amendment Forfeiture / Waiver By Conduct Judicial Communications to Jury Competency Review - Adequacy of Colloquy Appellate Counsel Collateral Attack Revocations Interrogations (6th Amendment) (also see here, including Miranda waivers)

Other IAC and Interest of Justice Sanctions Malpractice Claim

Conflict

Conflict of Interest – IAC Claim Lodged by Former Partner of Postconviction Counsel

State v. Todd E. Peterson, 2008 WI App 140

For Peterson: Ralph Sczygelski

Issue/Holding: The trial court erroneously disqualified retained postconviction counsel from litigating an ineffective-assistance claim against his former law partner, the trial attorney: ¶21      Our review of the transcripts reveals little about what the circuit court feared would happen at the Machner hearing; specifically, what risk Petit’s representation posed to Peterson or to the integrity of the judicial system. … … ¶23      A sua sponte disqualification inquiry presents a palpable risk of unfairly denying a party the right to retain counsel of his or her choosing. “The right to retained counsel of choice is supported by three basic tenets of our adversary system: trust, autonomy, and fairness.” Janet C. Hoeffel, Toward a More Robust Right to Counsel of Choice, 44 San Diego L. Rev. 525, 540 (Summer 2007). “Basic trust between counsel and defendant is the cornerstone of the adversary system ….” Linton v. Perini, 656 F.2d 207, 212 (6th Cir. 1981). Notwithstanding the importance of preserving the integrity of the courts and the confidence of the public, attorney disqualification should not be imposed cavalierly. Here, the court did not explain what problem it anticipated if Petit continued, the court did not describe any potential ethical violation that might arise, and the court did not engage in any sort of dialogue with Peterson before deciding to disqualify Petit. Moreover, the circuit court would have had the same opportunity to rule on the admissibility of the evidence and to control the tenor of the proceedings regardless of whether Petit continued as Peterson’s advocate or another attorney stepped in. Accordingly, the court’s decision to disqualify Petit was an erroneous exercise of discretion.

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. But compare, State ex rel. Burns v. Richards, MO. SCt No. SC88709, 04/01/2008 (presumptively prejudicial for prosecutor to have recently represented defendant in prior similar matter). Also see discussion in People v. Davenport, MI App No. 271366, 8/28/08 (albeit where prosecutor's move is during the criminal case at issue: "The trial court should be promptly informed of a defense attorney’s move to the prosecutor’s office, and it should inquire into the matter and order an appropriate safeguard, such as disqualifying the individual attorney affected by the conflict of interest, or the entire prosecutor’s office, if necessary.") More exotically: Hollywood v. Superior Court, Cal SCt, No. S147954, 5/12/08 (prosecutor had hand in making film about pending case, court finds no disqualifying conflict after "considering the extent to which prosecutorial involvement in cinematic and literary endeavors may give rise to conflicts requiring recusal") and companion case, Haraguchi v. Superior Court, Cal SCt, No. S148207, 5/12/08 (same, where lead 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. … Detailed discussion of tension between defendant's exercise of right to counsel of choice and judicial obligation to ensure adequate representation, in State v. Smith, Iowa SCt No. 07-1041, 2/13/09 (court concluding, on particular facts, that sufficient safeguards in place and noting that waiver of conflict by defendant "conflict does not vitiate the court’s duty to ensure a defendant receives zealous representation when the facts suggest an 'actual conflict of interest or a serious potential for conflict of interest'”).

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.

What if there had been an arguable basis for the suppression and no non-tactical basis for failing to file it? Would Cash's burden have been to show a successful outcome to the motion? Yes, if Cash had taken the case to trial: "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"). But where the conviction is plea-based, there is authority for a different showing, that had a reasonable person known about the grounds for suppression he or she wold have been "plausibly motivated" not to plead guilty, U.S. v. McTiernan, 9th Cir No. 07-50430, 10/21/08.

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

Effective Assistance – Deficient Performance: Lack of Familiarity with Vienna Convention on Consular Relations

Johnbull K. Osagiede v. USA, 7th Cir No. 07-1131, 9/9/09

Issue/Holding: Counsel’s ignorance of rights available, under VCCR Art. 36, to her Nigerian national client was deficient: Osagiede’s claim is a common one in Sixth Amendment cases. In essence, Osagiede argues that his lawyer should have been aware of his legal rights under Article 36 and should have acted to protect them: “All lawyers that represent criminal defendants are expected to know the laws applicable to their client’s defense.” Julian v. Bartley, 495 F.3d 487, 497 (7th Cir. 2007); accord Dixon v. Snyder, 266 F.3d 693, 702 (7th Cir. 2001); Mason v. Hanks, 97 F.3d 887, 893 (7th Cir. 1996); Freeman v. Lane, 962 F.2d 1252, 1258 (7th Cir. 1992). The Government does not contest the fact that it failed to notify Osagiede of his right to contact his consulate. This failure to notify violated Article 36 of the Vienna Convention, as well as federal regulations promulgated to ensure compliance with Article 36. See 5 28 C.F.R. § 50.5. The law was on the books; the violation was clear. Simple computer research would have turned it up. The Government argues, however, that Article 36 does not create any individual rights that could have been invoked by counsel as a basis for relief. Osagiede’s counsel was not objectively deficient, the Government argues, because any argument she might have raised would be futile. See Rodriguez v. United States, 286 F.3d 972, 985 (7th Cir. 2002). In support of its argument, the Government asserts that no court had ever held that the Vienna Convention created individually enforceable rights in the criminal setting. This is simply incorrect … . … …(T)he Article 36 violation should have rung a bell with a reasonable attorney. Significant caveats apply (as always! otherwise we’d have much less to do). The crux of this holding is that the VCCR safeguards individual rights, else you’d have a no-harm/no-foul summary affirmance. The 7th was way out in front of the curve on that principle, Jogi v. Voges, 480 F.3d 822 (7th Cir. 2007) (Art. 36 confers individual rights). Because Jogi was decided after Osagiede’s case was litigated in the trial court, it wasn’t determinative on the question of what his attorney should have known. But it certainly shows the 7th’s leanings. And now the court has leaned still further, and determined that even before Jogi, reasonable competence required familiarity with the right to consular assistance. Here’s where it gets interesting, though. Our state courts have taken an entirely different tack, and have held “that the Vienna Convention does not create a private right that a foreign national can enforce in a state criminal proceeding and therefore [he or she] has no standing to assert any remedy pursuant to the Vienna Convention,” State v. Jose Carlos Navarro, 2003 WI App 50, ¶1. Now what? You’ve got 7th Circuit caselaw distinctly saying that the right is privately enforceable and that therefore counsel must be aware of its potential benefit, so that any failure to assert it is the product of considered strategy. But you’ve also got controlling state caselaw saying that this right is not privately enforceable, and that the defendant therefore doesn’t have standing to assert a violation. Our state courts aren’t (outside of judicial mandate in a specific case) obligated to follow the 7th down this path. Neither Osagiede nor Jogi overrule the holding of Navarro. Technically, then, you might be able to ignore this new development and suffer no consequence. But, of course, that is not the way you want to practice law, nor is it in your clients’ interests. The point to be aware of is that state-court assertion of an Art. 36 violation will require discussion of Navarro (either as a minimalist approach: limiting it to the distinguishable issue of suppressibility of evidence for a “direct” violation; or maximalist: seeking its outright reversal by the supreme court). Re VCCR and suppression of evidence: here.

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 fingernails was deficient, similar to State v. Glass, 170 Wis. 2d 146, 488 N.W.2d 432 (Ct. App. 1992): ¶40. Here, the only testimony regarding the DNA samples taken from the scene was that they provided no insight into the crime. At best, this statement means the samples were inconclusive. This, however, was not the case. Instead, the samples taken from Thompson's body and the surrounding area excluded Zimmerman; and one sample excluded Thompson, her husband, and Zimmerman as sources. Counsel's failure to challenge Larson's testimony with this data had the effect of essentially stipulating that the evidence was inconclusive. Instead, it was potentially exculpatory evidence that Zimmerman was entitled to have the jury hear. Counsel's failure to introduce this evidence constitutes deficient performance. (This deficiency held prejudicial in combination with other distinct deficiencies, ¶50, because "it might have allowed the jury to reach the conclusion that because none of Zimmerman's DNA was found at the scene or on Thompson, he was not responsible for her murder.")

Deficient Performance -- Failure to Offer Alternative Medical Testimony 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 failure to offer independent medical evidence that would have challenged the state's expert as to the weapon used to kill the victim and that would have indicated that the murder was consistent with a sex crime, was deficient performance: ¶42. Given the particular facts of this case, we conclude that counsel's failure to present independent medical testimony constituted deficient performance. Counsel's decision not to investigate a defense must be directly assessed for reasonableness in all the circumstances, "applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691. At the Machner hearing, counsel testified that he did not consider finding a medical examiner to review McGee's findings because they did not link Zimmerman to the crime, although he admitted Jentzen's evidence would have been helpful at trial. Many of McGee's findings were inconclusive. He testified that the telephone cord could have been the murder weapon and that nothing found in the autopsy indicated that it was not used. Jentzen, however, concluded that the cord was not used in Thompson's murder. McGee also testified that hemorrhages on Thompson's body could have been caused by being pushed against a van door or window by a person in the driver's seat, whereas Jentzen concluded this was not the case. Both of McGee's statements were important to his testimony, and both were rather inconclusive. Counsel was deficient by failing to present available alternative testimony to counter McGee. (This deficiency held prejudicial, in combination with other deficiencies, ¶51, because it would have allowed the jury to reject any connections between the state's expert and Zimmerman.)

Deficient Performance -- Failure to Challenge Hypnotically Refreshed Testimony 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 failure to challenge a witness's hypnotically refreshed testimony, as violating the guidelines of State v. Armstrong, 110 Wis. 2d 555, 329 N.W.2d 386 (1983), was deficient: ¶45. To begin, we are not persuaded by counsel's explanation of his trial strategy. Counsel said he let the testimony in because it was so inconsistent, yet he had tried earlier to exclude it was irrelevant and prejudicial. Even if it was inconsistent, counsel presumably still thought it was prejudicial. Furthermore, there was a basis to challenge the admission of the testimony under Armstrong. We cannot say whether the trial court would have, in its discretion, granted a motion to exclude the testimony, but counsel should have at least tried. At the postconviction hearing, Zimmerman presented the testimony of professor Alan Scheflin. He stated the hypnosis session did not comply with Armstrong and other standards for hypnotically refreshed testimony, such as being impermissibly suggestive, only videotaping Rene and not the hypnotist, and having the police give too much information to the hypnotist. If the trial court had agreed with Scheflin, it could have suppressed Rene's testimony. ¶46. If the trial court did not suppress the testimony, an expert would have been able to challenge the hypnotic session as unduly suggestive. At the postconviction motion hearing, Scheflin testified that he found numerous violations of Armstrong's standards in the hypnotic session, including failure to tape both the hypnotist and Rene. Scheflin also criticized the hypnotist's oral, as opposed to written, briefing by the police and also noted police told the hypnotist that Rene "was the crucial witness, the key witness," which violated Armstrong's requirement that the hypnotist be given minimal information to conduct the session. Finally, Scheflin identified several areas in which the hypnotist added content and structure to Rene's memories, including the color of the van and whether it turned in front or behind Rene. While we take no position whether the hypnosis session violated Armstrong's requirements, counsel should have at least presented available expert testimony challenging the hypnosis session and the reliability of Rene's testimony. (Note that deficient performance is found without reaching a conclusion as to inadmissibility of the challenged testimony. Deficiency held prejudicial, in combination with other deficiencies, ¶52, because this witness was the only one who placed Zimmerman in the area where the victim's body was found, and the jury may have given undue weight to the testimony and its implications, "(g)iven the 'popular misconception that hypnotized people always tell the truth,' Armstrong, 110 Wis. 2d at 573.")

Deficient Performance -- Failure to Read Discovery

State v. James R. Thiel, 2003 WI 111, reversing unpublished opinion of court of appeals

For Thiel: Bruce J. Rosen

Issue/Holding: ¶37. Turning to counsel's performance, we first recognize that counsel's failure to review certain portions of the discovery provided by the prosecution--especially Dr. Metzler's medical reports--was deficient performance as a matter of law. In a felony case where the client potentially faces significant prison time, it falls below objective standards of reasonableness to fail to read all portions of discovery that may have the potential to educe information that is either beneficial or damaging to the client's cause. ¶38. We can perceive no strategic or tactical advantage for a criminal defense attorney not to read discovery provided by the prosecution that may yield exculpatory evidence. The discovery documents in this case could have contained, and did contain, information that would have benefited Thiel's defense. Unread discovery not only provided critical information directly but also provided insight into other facets of the case that deserved more thorough investigation. See also State v. Lisamba L. Love, 2005 WI 116, ¶40 ("pursuant to the ABA Standards for Criminal Justice, trial counsel is obligated to investigate information in police reports," citing Thiel. On the issue of failure to interview a potentially key witness and strategy, see also, e.g., Riley v. Payne, 9th Cir No. 03-35054, 12/23/03: Clower’s performance fell below an “objective standard of reasonableness” because he failed to interview Pettis. Having never spoken with Pettis, Clower could not have fully assessed Pettis’s version of the events, Pettis’s credibility and demeanor, or any other aspect of his involvement that might have reinforced Riley’s defense.... Thus, the rule of Strickland requiring “reasonable professional judgments” before limiting investigation is offended here. The government has provided no testimony of counsel as to why he did not contact Pettis. Having never interviewed Pettis, Clower could not have determined what Pettis would have said about the shooting, whether Pettis would have been a credible defense witness, and whether Pettis should have been called to testify to aid the defense. The record shows that counsel did not make a reasonable professional judgment to ignore an important corroborating witness.

Deficient Performance -- Failure to Investigate Must Be Strategic

State v. James R. Thiel, 2003 WI 111, reversing unpublished opinion of court of appeals

For Thiel: Bruce J. Rosen

Issue/Holding: Failure to pursue an investigatory lead may not be deemed strategic “if counsel has not read the police report relating to that witness, because that would not be an informed decision.” ¶40. Moreover, if “the decision not to investigate is unreasonable, we must find that trial counsel's performance is deficient.” ¶44. Where the complainant’s credibility was “paramount to this case … counsel's failure to delve further into the circumstances of the charges and the background of Thiel's accuser is objectively unreasonable. This investigation should have included inquiry into additional documents and persons that could either corroborate or dispel her allegations, especially Ekern, who was slated to offer a prior consistent statement of the complainant.” ¶46. (The omitted inquiries are fact-specific in nature, such as failing to determine that the complainant had a driver’s license, given her disputed contention that she had driven to Thiel’s house over 100 times; failing to interview Thiel’s neighbors to see if any of them had ever seen her; and failing to conduct “a more thorough interview with Ekern,” who bolstered the complainant with a prior consistent statement whose admissibility might have been prevented had counsel brought out more details from Ekern. ¶¶47-50.)

Similar, if somewhat broader point, made by Ramonez v. Berghuis, 6th Cir No. 06-1852, 6/18/07 ("In sum, the point is this: Constitutionally effective counsel must develop trial strategy in the true sense--not what bears a false label of 'strategy'--based on what investigation reveals witnesses will actually testify to, not based on what counsel guesses they might say in the absence of a full investigation.").

Deficient Performance -- Failure to Research Law – “Unsettled” or Murky Law

State v. John R. Maloney, 2005 WI 74, affirming 2004 WI App 141, but nonetheless retaining jurisdiction pending resolution of other issues

For Maloney: Lew A. Wasserman

Issue/Holding: Failure to move to suppress evidence based on asserted violation of SCR 20:4.2 does not support deficient performance, given that applicability of this Rule was not settled: ¶23      The split of authorities described above is important in considering whether Maloney's trial counsel was ineffective in failing to challenge the admissibility of the videotape evidence based on an alleged violation of SCR 20:4.2.  Ignorance of well-defined legal principles, of course, is nearly inexcusable.  Smith v. Singletary, 170 F.3d 1051, 1054 (11th Cir. 1999).  However, because the law is not an exact science and may shift over time, "'the rule that an attorney is not liable for an error of judgment on an unsettled proposition of law is universally recognized . . . .'"  Id. (quoting 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 17.4, at 497 (4th ed. 1996) (citing cases)); [11] United States v. De La Pava, 268 F.3d 157, 166 (2d Cir. 2001); Johnson v. Carroll, 327 F. Supp. 2d 386, 398 (D. Del. 2004).... ¶26      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."  … ¶28      In State v. McMahon, 186 Wis.  2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994), the court of appeals observed that "counsel is not required to object and argue a point of law that is unsettled." … ¶29 … It explained, "[w]e think ineffective assistance of counsel cases should be limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue."  Id. at 85. ¶30      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.  Although it might have been preferred for Maloney's counsel to advance the Hammad position in his motion to suppress, basing an ineffective assistance of counsel claim on his failure to do so would be to engage in the kind of hindsight examination expressly disavowed by the Supreme Court in Strickland, 466 U.S. at 689.  Accordingly, we reject Maloney's first claim.  [11] Because a lawyer's performance is evaluated under prevailing professional norms, see Strickland v. Washington, 466 668, 688 (1984), case law and treatises on legal malpractice can be instructive in our analysis.  As the 11th Circuit Court of Appeals explained in Smith v. Singletary, 170 F.3d 1051, 1054 n. 5 (11th Cir. 1999), "ordinarily, at least, lawyers' acts or omissions that do not rise to the level of professional malpractice, a fortiori, cannot amount to a constitutional violation." Maloney argued, on this appeal, that that the prosecutor violated SCR 20:4.2 (no communication between lawyer and opposing party when s/he is represented, without permission) when he wired Maloney’s girlfriend to record their conversations. The court of appeals in effect said, No harm, no foul, on the idea that suppression is only required when there’s been a violation of a constitutional rule, which isn’t true in this instance, 2004 WI App 141, ¶¶11-12. For better or worse, this affirmance, albeit on different grounds, would seem to leave intact the precedential force of the court of appeals’ holding – see, e.g., State v. Gary M.B., 2003 WI App 72, ¶13. In any event, this IAC principle – counsel’s duty to raise (or not raise) “murky” issues – is certainly interesting in its own right, and for further discussion see summary of State v. James R. Thiel, 2003 WI 111, immediately below.

Deficient Performance -- Failure to Research Law

State v. James R. Thiel, 2003 WI 111, reversing unpublished opinion of court of appeals

For Thiel: Bruce J. Rosen

Issue/Holding: ¶51. Third, counsel's interpretation of Wis. Stat. § 972.11(3) reflects a failure either to research or correctly interpret relevant portions of the law. The circuit court found that counsel interpreted this statute as allowing the defense to prevent the State from presenting evidence of the complaining witness's prior personal or medical history if the defense did not file a motion under § 972.11(3). This is an unreasonable view of this statute, as the statute does not preclude the state from offering relevant and not overly prejudicial evidence. Although counsel claimed that the failure to file the motion was for strategic reasons, the strategy was based on an erroneous view of the law and ultimately barred Thiel from presenting information contained in JoAnn's medical records. By contrast, counsel's lapse did not hinder the prosecution's ability to present JoAnn's personal or medical records. Thus, counsel's failure to understand the statute and his concomitant failure to file a motion under its provisions were deficient as a matter of law. Counsel's reading of the pertinent statute was clearly wrong: what about when the statute is ambiguous, and hasn't yet been clarified by caselaw? One court sizes it up this way, Burdge v. Palmateer, OR SCt No. S50753, 5/12/05: The Court of Appeals and petitioner both incorrectly assume that, because a court eventually recognized a statute's ambiguity, any lawyer exercising reasonable professional skill and judgment would have done the same. But issues do not recognize themselves; the task of identifying and evaluating potential issues rests on the skills of the lawyer. Although that is a skill, the Court of Appeals' majority nevertheless failed to apply the "reasonable professional skill and judgment" test to its exercise. The correct rule remains as this court described it previously, with the caution that it must be applied to all aspects of a lawyer's reasoning process, not just to selected parts. In situations similar to this one, the post-conviction court may grant a petitioner relief only if it can say affirmatively that a lawyer exercising reasonable professional skill and judgment would have recognized the statutory ambiguity, would have seen an interpretation that could benefit the defendant, and would have concluded under the circumstances that the potential benefits of advancing that interpretation exceeded any risks. With regard to ambiguous case law, see State v. Thayer, 2001 WI App 51, ¶ 14 ("If, however, case law on an issue can be reasonably analyzed in two different ways, the law is unclear; counsel is not required to argue a point of law that is unclear. See State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994)."). The cited case, McMahon, indeed says that counsel need not "argue a point of law that is unsettled." Sometimes, though, murkiness signifies flux and thus amount to a warning signal, as when (appellate) counsel fails to track change in pertinent law: See, e.g., Ballard v. U.S., 6th Cir No 03-5117, 3/10/05 ("while we do not require attorneys to foresee changes in the law, once a change – particularly an important and relevant change – does come about, we do expect counsel to be aware it. ... As such, we believe that Ballard was fully entitled to the benefit of legal arguments relying on both those opinions."). Nor is it quite as simple as saying, "we do not require attorneys to foresee changes ...." Sometimes, a favorable result lurks in the ability to see that the law is in flux, or takes a bit of extrapolation. The main Wisconsin case, State v. Hubert, 181 Wis.2d 333, 510 N.W.2d 799 (Ct.App. 1993), articulates a workable standard of attorney diligence: "We would hold defense attorneys to an impossible burden were we to require total and complete knowledge of all aspects of reported criminal law, no matter how obscure. Thus, we conclude that counsel's unawareness of this narrow slice of law was reasonable and understandable." As an abstract statement of principle, this is unobjectionable, even mundane. But obscurity may be in the eye of the beholder, and the court's application of the principle to the particular facts -- presence of uniformed firemen at arson trial; counsel's unfamiliarity with caselaw proscribing spectators who make point one way or another at defendant's expense not deficient performance -- leaves quite a bit to be desired. Indeed, Hubert goes on to say that the presence of the firemen if anything helped the theory of defense, hence wasn't prejudicial; the discussion on deficient performance therefore may plausibly be regarded as dicta. In any event, Hubert's disavowal of counsel's obligation to track an "obscure" aspect of caselaw was in reference to Norris v. Risley, 918 F.2d 828, 830 (9th Cir. 1990), which held that display of ant-rape buttons in the courtroom denied fair trial. Interestingly, the 9th Circuit subsequently held that Norris not only did not address an obscure area of law, but was of a piece with clearly controlling Supreme Court precedent, see Musladin v. Lamarque, 9th Cir No. 03-16653, 4/8/05 ("At a murder trial in which the central question is whether the defendant acted in self-defense, are a defendant’s constitutional rights violated when spectators are permitted to wear buttons depicting the 'victim'? We conclude that under clearly established Supreme Court law such a practice interferes with the right to a fair trial by an impartial jury free from outside influences."), and although that result was later overturned, Carey v. Musladin, No. 05-785, 12/11/06, it was on the narrow ground that the absence of controlling precedent on the underlying merits meant that a 2254 habeas petition simply wasn't supportable. All the more reason, then, to lodge the proper objection, so the issue is preserved on direct appeal. See also, e.g., Lanham v. Commonwealth, KY No. 2003-SC-0268-MR, 8/25/05, fn. 67, string-citing instances where waiver bar imposed for failing to object to similar display. Of course, properly preserved objection isn't a magic bullet in the final analysis. E.g., State v. Lord, Wash. SCt. No. 77472-2, 8/30/07 (mere "of lapel buttons, showing a picture of the victim" not prejudicial, court distinguishing buttons in Norris as being against rape, thereby implying guilt). For the idea that counsel isn't held to a standard of "clairvoyance" in predicting future developments in the law, see e.g., Fountain v. Kyler, 3rd Cir No. 03-477, 8/25/05; like effect: Miller v. Lambert, OR SCt No. S51716, 1/12/06 (despite ferment in caselaw, counsel not expected to foresee that two years Apprendi would overrule settled law). But see Hoffman v. Arave, 9th Cir No. 02-99004,7/5/06: We do not fault Wellman for failing to predict the outcome of these divergent opinions. We do not expect counsel to be prescient about the direction the law will take. ... (¶) ... We nonetheless find that Wellman’s representation of Hoffman during the plea bargaining stage was deficient for two reasons: first, Wellman based his advice on incomplete research, and second, Wellman recommended that his client risk much in exchange for very little. Note: Cert was granted in Hoffman, Arave v. Hoffman, USSC No. 07-110, 11/5/07, but was dismissed as moot 1/7/08. See docket. For colorful phrasing of problem, see, Haines v. Risley, 1st Cir No. 03-2011, 6/24/05: "It is not so much a matter of counsel exercising a reasonable choice among various arguments; rather, we do not credit the idea that competent counsel should inevitably have conceived of and credited a line of argument so abstruse, debatable and contingent. The standard for competence cannot be Herbert Wechsler."

Deficient Performance -- Failure to Hire Expert  State v. Dale H. Chu, 2002 WI App, PFR filed 4/23/02 For Chu: Andrew Shaw Issue/Holding: Counsel's failure to retain an arson expert wasn't deficient performance, where there was no indication the fire was anything other than arson, and defendant didn't have sufficient funds to hire an expert. ¶¶50-52

Deficient Performance -- Failure to Investigate Expert -- Non-Pursuit of NGI Defense After Rejection by Expert Who Misunderstood Correct Test

State v. Theodore Oswald, 2000 WI App. 2, 232 Wis.2d 62, 606 N.W.2d 207

For Oswald: Jerome F. Buting, Kathleen B. Stilling

Issue: Whether counsel was ineffective for rejecting an NGI defense, where two defense experts rejected the defense but after trial one acknowledged that he misunderstood the correct test and that his opinion was now different.

Holding: "Competent representation does not demand that counsel seek repetitive examinations of the defendant until an expert is found who will offer a supportive opinion." ¶77, quoting People v. Williams, 751 P.2d 395, 437 (1988).

Note: keep in mind the caution of Rogers v. Israel, 746 F.2d 1288 (7th Cir. 1984) that counsel has a duty to seek an opinion from a qualified expert; whether Oswald's result would have been the same had only the second expert been consulted is doubtful, though not explicitly addressed by the court. That aside, the court's dismissal of the claim is a bit too glib, or, rather, should not be accepted a some broad principle that merely retaining the expert is enough -- on this point, see Richey v. Mitchell, 6th Cir No. 01-3477, 1/25/05: At the outset, the State, and the dissent to this opinion, argue that Richey has no constitutional right to the “effective assistance of an expert.” The district court also noted that it was not unreasonable for trial counsel to “decline [to conduct] further expert-shopping once that expert rendered his opinion.” ... But Richey argues, and the record reflects, that the failures of Richey’s expert were largely caused by the failures of Richey’s counsel. See Bloom v. Calderon, 132 F.3d 1267, 1277 (9th Cir. 1997) (“[C]ounsel’s failure to adequately prepare his expert and then present him as a trial witness [amounts to] constitutionally deficient performance.”). As Richey’s counsel observes, “[i]ncompetence cannot excuse incompetence.” ... [T]he deficiencies of an expert can be imputed to counsel when counsel has failed to adequately research and screen an expert witness. See Glenn v. Tate, 71 F.3d 1204, 1210 n.5 (6th Cir. 1995) (finding deficient performance because “we are not prepared to assume that Drs. Ramani and Siddal would have been the experts retained by the defense . . . if counsel had done their homework”). Thus, counsel owes more to his client than a passive duty to watch for red flags of incompetence. ... Trial counsel’s failure to screen, supervise, or engage DuBois left Richey with little more than “a warm body with a prefix attached to his name,” Skaggs, 235 F.3d at 273 n.3 .... See also, Jacobs v. Horn, 3rd Cir No 01-9000, 1/20/05 (deficient performance where counsel sought opinion from expert in support of mental capacity defense, and stopped investigating the defense further upon the expert's unfavorable opinion, but the expert was not adequately apprised of relevant background, and the expert's evaluaiton therefore was not "sufficiently extensive")

Deficient Performance -- Failure to Investigate, Information within Defendant's Knowledge, but not Imparted to Counsel  State v. William Nielsen, 2001 WI App 192, PFR filed For Nielsen: Waring R. Fincke Issue/Holding: "This court will not find counsel deficient for failing to discover information that was available to the defendant but that defendant failed to share with counsel." ¶24.

Deficient Performance -- Failure to Investigate Vonaire T. Washington v. Smith, 219 F.3d 620 (7th Cir. 2000) For Washington: Robert R. Henak Issue/Holding: Trial consel's performance was deficient in three respects: Last-minute issuance of subpoena for hard-to-find witness, on theory that trials are often adjourned at last minute anyway. ("(P)lacing witness convenience above the vital interests of his client does not make Mr. Engle's decsion reasonable -- or even really strategic.") Failure to investigate potential defense witnesses. ("Telling a client, who is in custody awaiting trial, to produce his own witnesses (as did Mr. Engle) falls painfully short of conducting a reasonable investigation, especially given that Sharon and David Brown did not have a telephone.... (I)t is wholly unreasonable for a lawyer to instruct his incarcerated client to get in touch with people who don't have a phone.") Failure to read police report.

Deficient Performance -- failure to investigate, based on defendant's version

State v. David S. Leighton, 2000 WI App 156, 237 Wis.2d 709, 616 N.W.2d 126

For Leighton: Daniel Snyder

Issue: Whether defendant's first counsel was ineffective for failing to file formal discovery demand and investigate various matters.

Holding: Because counsel withdrew before the prelim, and because there is no right to discovery before prelim, counsel couldn't have been deficient for failing to file a demand, ¶37; because defendant failed to show what information counsel might have uncovered, defendant didn't show deficient performance, ¶39; because counsel's investigative efforts relied on claims defendant made to him, the investigation was reasonable, ¶¶40-41; and because defendant failed to show how first counsel's failure to investigate the crime scene resulted in prejudice, defendant wasn't denied effective assistance of counsel.

Deficient Performance -- Failure to Investigate Potential Defense -- Guilty Plea State v. Harold C. Pote, III, 2003 WI App 30 For Pote: John A. Pray, Remington Law Center Issue: Whether counsel was ineffective for failure to investigate a potential defense (inability to work for medical reasons) to one of two counts of nonsupport, where counsel complied with the defendant's instruction to obtain a plea bargain involving no incarceration and the count with the potential defense was dismissed under the plea bargain. Holding: ¶19 Pote is correct that to provide effective representation to a person charged with a crime, an attorney is obligated to adequately investigate any potential defenses and discuss them with his or her client. See Pitsch, 124 Wis. 2d at 638. Defense counsel should also thoroughly discuss any proposed plea agreement and its advantages and disadvantages with the client. See State v. Rock, 92 Wis. 2d 554, 563-64, 285 N.W.2d 739 (1979). The trial court found that counsel did precisely these things in this case. We disagree with Pote’s suggestion that his counsel was obligated to recommend to him that he reject the offer because of the possibly meritorious defense to one of the two counts with which he was charged, or that counsel should have ignored Pote’s instruction to obtain an overall disposition involving no jail time. Even though Pote established at the postconviction hearing that the medical defense to count two may have been stronger than Pote or his counsel believed prior to Pote’s plea, as the trial court noted, this would not have diminished Pote’s exposure to a felony conviction on count one.

Deficient Performance -- Failure to Object/Seek Admissibility

Ineffective Assistance – Deficient Performance: Failure to Object to Opinion Testimony re: Complainant’s Truthfulness

State v. Bryan James Krueger, 2008 WI App 162

For Krueger: Bradley J. Lochowicz

Issue/Holding: ¶15      Here, Mason was asked whether she had formed an opinion as to whether or not S.B. “was the product of any suggestibility or any coaching.” … Signs of coaching or suggestion could fall into the realm of knowledge that is outside that of a lay-person jury. [10] ¶16      However, in assessing that because S.B. was not highly sophisticated she would not have been able to maintain consistency throughout her interview “unless it was something that she experienced,” Mason testified that S.B. had to have experienced the alleged contact with Krueger. The testimony was tantamount to an opinion that the complainant had been assaulted—that she was telling the truth. As in Haseltine, this testimony simply went too far, and its effect was to usurp the role of the jury in determining credibility. See Haseltine, 120 Wis. 2d at 96; Romero, 147 Wis. 2d at 278; Tutlewski, 231 Wis. 2d at 390. [11] ¶17      We therefore agree with Krueger that counsel’s performance was deficient in failing to object to Mason’s testimony and that Krueger was prejudiced by counsel’s deficient performance. The appropriate measure of attorney performance is reasonableness, considering all the circumstances. See State v. Brooks, 124 Wis. 2d 349, 352, 369 N.W.2d 183 (Ct. App. 1985). While trial counsel testified that she had not objected because she viewed Mason’s testimony as admissible expert opinion, her view of the law was incorrect. It is well established that an expert witness cannot testify as to the credibility of another witness, and counsel’s failure to object when Mason did so was unreasonable. [12] Haseltine, 120 Wis. 2d at 96; Strickland, 466 U.S. at 687. As Judge Brown points out in concurrence, ¶21, the holding is actually quite narrow: I write separately to underscore that prosecutors will not be hamstrung by this opinion one iota. The opinion simply means that, while expert evidence regarding coaching or the lack of it is allowable, prosecutors must be careful in how they present it. The key word here is “objective.” The questions must be objectively tailored and designed to elicit objective answers. A good starting point for prosecutors would be footnote ten of the majority’s opinion. Certainly, prosecutors can tailor an objective, nonleading question about the child’s “ability to supply peripheral details of the alleged incident.” They can ask about the child’s use of language in describing the assault. They can ask about information “not appropriate for the developmental level of the child.” There are probably many more objective questions a prosecutor can ask that will get the prosecutor’s point across. What the prosecutor cannot do is cross the line by inviting the expert to give her or his opinion about whether the child was coached. In sum, be careful. One small matter. The court takes pains to note that “Wisconsin law has not yet addressed the precise question of the admissibility of expert opinion testimony about whether the child’s testimony and behavior exhibit signs of coaching or suggestion,” ¶14. That being so, why didn’t the court simply say, “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. Jennifer Wery, 2007 WI App 169, ¶17, and wash its hands of the matter? Apparently because, in the final analysis, the issue wasn’t all that novel as the court itself ultimately acknowledged: “It is well established that an expert witness cannot testify as to the credibility of another witness, and counsel’s failure to object when Mason did so was unreasonable,” ¶17.

Deficient Performance – Failure to Object to Closing Argument Reference That Might Relate to Failure to Testify Not Deficient

State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208

For Doss: Robert R. Henak

Issue/Holding: Closing argument remarks addressed to Doss’s failure to explain missing funds did not amount to a comment on her failure to testify: ¶81      … [F]or a prosecutor's comment to constitute an improper reference to a defendant's failure to testify, three factors must be present: (1) the comment must constitute a reference to the defendant's failure to testify; (2) the comment must propose that the failure to testify demonstrates guilt; and (3) the comment must not be a fair response to a defense argument. State v. Jaimes, 2006 WI App 93, ¶21, 292 Wis. 2d 656, 715 N.W.2d 669 (citing Robinson, 485 U.S. at 34). … ¶92      We have previously declined to establish a bright-line test as to "whether a prosecutorial comment crosses over 'into the forbidden area of comment on an accused's failure to testify' and 'violates constitutional rights,'" State v. Moeck, 2005 WI 57, ¶74, 280 Wis. 2d 277, 695 N.W.2d 783(citing State v. Edwardsen, 146 Wis. 2d 198, 215, 430 N.W.2d 604 (Ct. App. 1988)). Instead, such determinations must be made on a case-by-case basis. Moeck, 280 Wis. 2d 277, ¶74. ¶93      The court of appeals has adopted the approach taken by the Third Circuit that "[t]he test for determining whether remarks are directed to a defendant's failure to testify is 'whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.' Questions about the absence of facts in the record need not be taken as a comment on a defendant's failure to testify." State v. Johnson, 121 Wis. 2d 237, 246, 358 N.W.2d 824 (Ct. App. 1984)(citations omitted). Applying this test, the court of appeals has ruled that by presenting a limited reply to a defendant's claim during a pro se trial that the state was unable to prove its case, the prosecutor did not improperly comment on the defendant's failure to testify. Id.; See also State v. Werlein, 136 Wis. 2d 445, 457, 401 N.W.2d 848 (Ct. App. 1987)([T]he prosecutor's comments were made in rebuttal to defense counsel's suggestion that these were legitimate explanations for the events leading to the shooting."). ¶94      Thus, where Doss's attorney argued that Doss's behavior in depositing the estate funds showed nothing but good motives, it is not clear that the prosecutor's statements about the absence of facts in the record should be taken as a comment on Doss's failure to testify, particularly where there was no direct reference to Doss's failure to testify. This is the type of case that straddles a fine line between permissible and impermissible commentary by the State. The U.S. Supreme Court has recognized that a prosecutor's statement that falls short of a direct statement on a defendant's failure to testify, but instead "'refers to testimony as uncontradicted where the defendant has elected not to testify and when he is the only person able to dispute the testimony,'" is at most an attenuated violation of Griffin v. California, 380 U.S. 609 (1965), and Robinson, 485 U.S. at 34, and may not actually constitute a violation at all. United States v. Hasting, 461 U.S. 499, 503, 506 & n.4 (1983). Therefore, Doss has not established that her counsel's failure to object was deficient performance. See Johnson, 133 Wis. 2d at 217; Strickland, 466 U.S. at 688. So? Did the closing argument amount to a comment on failure to testify or didn’t it? The court doesn’t purport to say. Apparently, it doesn’t have to. Trial counsel, in the first instance, waived the issue by not objecting, ¶83. More problematically, the court now seems to say that when an issue isn’t clear-cut, counsel can’t be deficient by failing to react. Thus, this case “straddles a fine line” and therefore Doss didn’t establish deficient performance. To be sure, the court doesn’t connect the dots quite that directly, but what else could it have meant? In this sense, the holding joins a lengthening list of cases to similar effect (see summaries collected here).

Deficient Performance – Failure to Object, to Taser Device Worn by Defendant in Courtroom

State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08

For Champlain: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: Counsel’s failure to object to the defendant’s wearing a taser device on his arm during trial amounted to deficient performance, where counsel was informed “that the armband was a type of security device,” and given that “(n)umerous cases address” both the potential prejudice inherent when a defendant appears before a jury in some form of restraint, and also the court’s role in determining necessity for the restraint, ¶26. “Once he learned that Champlain’s armband, at least potentially visible to the jury, was an electronic restraint, Guenther had a duty to object or, at a bare minimum, to request the trial court to explore the need for the device,” ¶27.

Deficient Performance – Failure to Object: Witness’s Reference to Her Miscarriage – Strategy

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

For Cooks: Joseph E. Redding

Issue/Holding: Failure to object to a witness’s unanticipated reference to her miscarriage did not amount to deficient performance: ¶43      Cooks’ arguments do not overcome the strong presumption that Barth acted reasonably and within professional norms. First, Barth could not have anticipated that Metz would testify about her miscarriage. Metz’ testimony about her miscarriages twice came out unexpectedly and in a nonresponsive fashion to a question regarding her attempts to recant her identification of Cooks. As Barth testified at the Machner hearing, he could not have objected to Metz’ testimony at trial because it came in “as an aside. It was not an expected answer.” ¶44      Second, we will not second-guess Barth’s trial strategy here. See State v. Felton, 110 Wis. 2d 485, 502-03, 329 N.W.2d 161 (1983) (stating that appellate courts are not to second-guess trial counsel’s selection of trial tactics or the exercise of professional judgment after weighing the alternatives). Barth testified that he did not object to the State’s follow-up on the point because “that was one of those things where the bell had been rung.” Barth reasonably concluded that to object to the follow-up question would draw unwanted jury attention to Metz’ miscarriage. Therefore, Barth’s failure to object to Metz’ testimony about her miscarriage did not constitute deficient performance.

Deficient Performance – Failure to Object: Witness’s Reference to Defendant’s Having Been in Jail

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

For Cooks: Joseph E. Redding

Issue/Holding: Failure to object to a witness’s reference to having known the defendant from jail was not deficient performance, because this evidence was admissible anyway: ¶47      Furthermore, Cooks’ ineffective assistance of counsel claim is premised on a correct trial court ruling and cannot succeed. See Ziebart, 268 Wis. 2d 468, ¶14. The probative value of Marshall’s testimony was not outweighed by any danger of unfair jury prejudice. The theory of defense was misidentification. The nature of the prior contacts between Marshall and Cooks was relevant to show Marshall had a sound basis for making his identification of Cooks at the crime scene. Moreover, Cooks testified to having eight prior convictions. This would have reasonably suggested to the jury that Cooks probably had been incarcerated in the past and therefore detracts from any additional prejudice Marshall’s testimony provided. ¶48      Cooks also suggests that Barth could have stipulated that Marshall knew him from prior contacts and therefore prevented the jury from knowing that he had been in prison. However, even assuming Barth was deficient for failing to so stipulate, Cooks has not established prejudice. Again, the jury could have easily inferred that Cooks had been in prison from his own testimony regarding his eight criminal convictions.

Deficient Performance – Failure to Object – References to Alias

State v. Peter A. Fonte, 2005 WI 77, reversing unpublished decision

For Fonte: Martha A. Askins, SPD, Madison Appellate

Issue/Holding: Counsel made a valid tactical decision not to object to references to the defendant’s use of an alias, in that this was the name by which he was known to all of his friends and it would have been difficult to examine witnesses without using the alias, ¶¶25-26. “We also note that the nature of this crime, which arose from an accident rather than a premeditated desire to injure someone, makes the argument that ‘only criminals use aliases’ less persuasive, because intent was not an element of this crime,” ¶27.

Deficient Performance: Failure to Seek Admissibility of Hearsay Evidence Exculpating Defendant

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

For Guerard: Joseph L. Sommers

Issue/Holding: Counsel’s failure to use against-hearsay statements which exculpated the defendant because they were somewhat inconsistent with the victim’s testimony was objectively unreasonable: ¶46 … The inconsistencies may diminish the relative weight and credibility of Daniel's hearsay confessions but do not provide an objectively reasonable strategic rationale for foregoing their use altogether. Similarly, Daniel's denial of involvement when interviewed by the police would have been a factor for the jury to consider in evaluating the believability of Daniel's confessions to his sister and the SPD investigator; it does not, however, provide an objectively reasonable justification for failing to use the statements at all. Guerard's trial strategy was to suggest that there was evidence pointing to his brother Daniel as the perpetrator of these crimes. We see no objectively reasonable basis to forego the use of Daniel's admissible hearsay confessions, which support this theory of defense. Guerard has demonstrated that his counsel's performance in this regard was deficient.

Deficient Performance - Failure to Obtain Pretrial Ruling on Admissibility of Potential Witness State v. Robert Jamont Wright, 2003 WI App 252 For Wright: Ann Auberry Issue/Holding: ¶38. Despite the expanded use of the motion in limine in current times, we agree with the trial court that trial counsel was not ineffective for failing to obtain a pretrial ruling regarding the admissibility of Lomack's expected testimony. Trial counsel testified that from the moment Lomack resurfaced as a potential witness, she believed his testimony was admissible. Therefore, she did not see the need for a motion in limine ruling. The trial court agreed.... ¶39. We agree. To hold otherwise would suggest that lawyers should seek pretrial rulings on all evidentiary issues that might inspire an objection at trial. As the trial court recognized, "It would be creating a situation where counsel at the peril of being accused of being ineffective would have to try their case to the court to find out what was going to come in before they tried it to a jury. [T]hat is not what the law requires." ¶40. While the following list is not exhaustive, we view a motion in limine as proper where (1) the trial court has directed that the evidentiary issue be resolved before trial; (2) the evidentiary material is highly prejudicial or inflammatory and would risk a mistrial if not previously addressed by the trial court, id.; (3) the evidentiary issue is significant and unresolved under existing law; (4) the evidentiary issue involves a significant number of witnesses or a substantial volume of material making it more economical to have the issue resolved in advance of trial so as to save the time and resources of all concerned; or (5) a party does not wish to object to the evidence in the presence of the jury and thereby preserves the issue for appellate review by obtaining an unfavorable ruling via a pretrial motion in limine, see State v. Bergeron, 162 Wis. 2d 521, 528-29, 470 N.W.2d 322 (Ct. App. 1991). We do not view Lomack's proffered testimony as qualifying under any of these considerations. Therefore, counsel was not deficient for failing to obtain a pretrial ruling as to the admissibility of Lomack's testimony.

Deficient Performance -- Failure to Offer Stipulation to Introduction of Prejudicial Evidence

State v. David J. Cleveland, 2000 WI App 142, 237 Wis. 2d 558, 614 N.W.2d 543

For Cleveland: Suzanne L. Hagopian, SPD, Madison Appellate

Issue: Whether, in a prosecution for exposing a child to harmful material, counsel was ineffective for failing to stipulate to harmfulness of the material and thereby prevent the jury from inspecting the material

Holding: Though prior precedent establishes that a court should accept a stipulation to either a purely "status" element or an element as a bar to other crimes evidence, the present case involves neither situation, and counsel wasn't ineffective for not seeking a stipulation.

Analysis: The harmful material ("patently offensive," etc.) was a page of pictures from a magazine. The page went to the jury. Cleveland argues on appeal that trial counsel should have offered to stipulate to the pictures' harmfulness, so that the jury wouldn't have to see them. A defendant may stipulate out of the case a fact related solely to a "status" element (e.g., felony status on a charge of felon in possession; number of priors on a DWI charge). Old Chief v. U.S., 519 U.S. 172 (1997); State v. Alexander, 214 Wis. 2d 628, 651, 571 N.W.2d 662 (1997). And, a defendant may concede an element in order bar other-crimes evidence. State v. DeKeyser, 221 Wis. 2d 435, 443, 585 N.W.2d 668 (Ct. App. 1998). The present situation is distinguishable, "because it involves neither the status element of a crime nor the admission of other acts evidence," ¶15, but, rather, goes to "the heart of the offense charged," ¶17. And, precisely because the jury was required to find elementally patent offensiveness, Cleveland can't show unfair prejudice in any event. ¶19. (Note, though, that the court doesn't say that a stipulation would be impermissible. To the contrary, the court suggests that an offer to stipulate might well be "good strategy." ¶17. The prosecutor may not be obliged to accept such an offer, but that doesn't mean that s/he is required to refuse one.)

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Deficient Performance -- Guilty Pleas/Plea Bargains

Ineffective Assistance – Deficient Performance: Plea Bargains – Failure to Nail Down Ambiguous Term

State v. Richard L. Wesley, 2009 WI App 118, PFR filed 8/4/09

For Wesley: Alvin Ugent

Issue/Holding: ¶24      Here, as we said, Wesley claims that he understood the term “dismissed outright” to mean that the State could never use the underlying facts against him. He claims that his trial counsel was ineffective for failing to object. He also claims that, if the plea agreement was ambiguous, he should have known about it and lays the blame at counsel’s feet. These are all facts, which if true, would entitle him to relief. The trial court rejected the call for a hearing by deciding that the agreement was not ambiguous. We have already held otherwise. This leaves many facts to be parceled out and they can come out at a Machner hearing only. We reverse and remand with directions that the trial court conduct a Machner hearing. At this hearing, should Wesley decide to testify about whether he knowingly and intelligently understood the terms of the plea agreement, the court shall make findings of fact regarding this issue as well as any ineffective assistance of counsel claims before the court. ¶25      We also point out that there is another question that the parties must flesh out on remand. The law in Wisconsin is that “[a]greements by … prosecutors … not to reveal relevant and pertinent information to the trial judge charged with the duty of imposing an appropriate sentence upon one convicted of a criminal offense, are clearly against public policy and cannot be respected by the courts.” Grant v. State, 73 Wis. 2d 441, 448, 243 N.W.2d 186 (1976). Whether the State was merely providing pertinent and relevant information or went beyond it by using it to augment its argument in favor of incarceration is a question to be decided on remand. This question will come into play with respect to the ineffective assistance of counsel claims. It is up to the parties, and ultimately the trial court, to measure the extent by which the policy impacts the result. This is an exceptionally readable opinion, a genuine pleasure to read, but the court inexplicably stumbles a bit just before the finish line. Most significantly: the court acknowledges that Wesley may well be entitled “to relief,” but simply does not say explicitly what form of relief he’s eligible for. Presumably, it’s like this: notwithstanding ambiguity in the provision, if Wesley reasonably thought it meant no-allocution, then his reasonable assumption will be enforceable at a resentencing; nonetheless, if the provision is deemed, per Grant, violative of public policy, then the court may not enforce it and the remedy necessarily would be limited to plea-withdrawal. To be sure, the court doesn’t spell any of this out, but that seems to be what the court is driving at. Grant is, as the quote indicates, clear enough about unenforceability, but it expressly avoided the question of plea-withdrawal, 73 Wis. 2d at 447. However, a federal habeas court subsequently ordered plea-withdrawal, Grant v. Wisconsin, 450 F. Supp. 575 (E.D. Wis. 1978). One last thing, totally tangential: spell-check can be your best friend or your worst enemy (“The State then explained that the witness lost site of the vehicle,” ¶5).

Deficient Performance – Plea Bargains

State v. James D. Miller, 2009 WI App 111, PFR filed 8/3/09

Pro se

Issue/Holding: Counsel’s failure to inform Miller of a plea offer not prejudicial in view of Miller’s own testimony that he probably wouldn’t have accepted the offer, ¶56.

Ineffective Assistance – Plea Bargains: Failure to Object to State Recommendation for Lengthy Terms of Extended Supervision and Probation, Where Defendant’s Main Concern was Confinement Time – Not Deficient Performance

State v. David C. Quarzenski, 2007 WI APP 212, PFR filed 9/21/07

For Quarzenski: Martin E. Kohler, Christopher M. Eippert

Issue: Whether counsel was ineffective for failing to object to the State’s sentencing recommendation where: under the plea bargain the State agreed to and in fact “capped” its recommendation on several counts to a total of “7 years in prison” but “additionally asked for an extensive period of extended supervision and consecutive long-term probation.”

Holding: The State did not materially and substantially breach the agreement, and counsel therefore wasn’t ineffective, because “the parties’ plea agreement regarding the State’s sentencing recommendation was targeted at the period of Quarzenski’s confinement, not other potential components of the sentences,” ¶2. ¶23 The circuit court held that the State abided by the plea agreement and therefore trial counsel were not ineffective for failing to object. We agree. The substantial period of confinement that Quarzenski faced lends credence to Glasbrenner’s testimony that Quarzenski was concerned only with the confinement portions of the sentences he would receive. Thus, the plea negotiations were conducted from that perspective and the ultimate agreement spoke only to that concern. Therefore, trial counsel had no basis to object when the State made its sentencing recommendation . As noted, we afford trial counsel’s performance great deference, and examine the case from counsel’s perspective at the time, and avoid determinations based on hindsight. Johnson, 153 Wis. 2d at 127. Also as noted, when a circuit court ’s conclusions are based on the court’s credibility findings, we accept those determinations. Jacobson, 222 Wis. 2d at 390. Here, although not expressly addressing the credibility of Glasbrenner’s and Cafferty’s testimony, it is obvious that the court found both credible since the court ruled in favor of the State, which relied on their testimony. If the court does not make express findings on credibility, we assume it made implicit findings to that effect when analyzing the evidence. Id. We see no basis for disturbing the circuit court’s determinations. The State did not breach the plea agreement, and therefore trial counsel were not ineffective for failing to object to the State’s sentencing recommendation. Much mischief-making potential in this seemingly mundane, fact-specific little case. There’s discussion about how Quarzenski’s “primary goal was to limit” prison time, that he didn’t care a whit about extended supervision or probation (¶11). But there’s not a single word that he knew, let alone agreed, that the State could and would recommend substantial periods of time on extended supervision and probation. Not a word. As a practical matter, then, what the court of appeals has done is delegate to counsel the authority to determine key provisions of the plea bargain. We can debate whether that approach is correct as a matter of law, but that it’s not especially wise practice should be incontestable. This leads to another, related concern. Used to be that failure to object to a plea bargain breach could be saved by typical IAC analysis such as inability to show “prejudice,” State v. Smith, 198 Wis. 2d 820 (Ct. App. 1995); but the court of appeals’ approach in that case was roundly rejected on review, State v. Smith, 207 Wis.2d 259, 558 N.W.2d 379 (1997): ¶25 Here, however, Smith's claim is based on a failure to object to adversary counsel's breach of a negotiated agreement. No further information or investigation was required to enable defense counsel to offer an objection at the sentencing hearing. Moreover, the failure to object flew in the face of the "informed strategic choice" made by Smith earlier when he entered into the plea agreement. The failure to object constituted a breakdown in the adversarial system. Post-Smith, then, counsel can’t posit “tactical” reasons to justify failure to object to a breach—the issue, instead, is whether the defendant knowingly signed off on the agreement, not whether counsel thought it was in the client’s best interests, a point made clear in State v. Brian W. Sprang, 2004 WI App 121: ¶27 We agree with the State that defense counsel had valid strategic reasons for choosing not to object to the prosecutor’s remarks. However, we have already concluded that those remarks constituted a breach of the negotiated plea agreement. When defense counsel made the decision to forego an objection, he did not consult with Sprang regarding this new development or seek Sprang’s opinion in the matter. Thus, Sprang had no input into a situation where the original plea agreement, which limited the State to arguing for conditions of probation, had morphed into one in which the State could suggest that the court impose a prison sentence without probation. As such, the plea agreement to which Sprang pled no longer existed. The danger, then, is that this new case represents a bit of “push-back” by the court of appeals, an effort to restore as much of its prior, rejected approach as possible. Recall that there is nothing in this opinion to suggest that Quarzenski himself agreed to the challenged terms of the State’s allocution. In effect, the court appears to be saying that counsel is authorized to agree to certain critical terms of the agreement, whether or not the client agrees to them, so long as the client’s “primary goal” is satisfied. Sounds an awful lot like a return to an analysis of plea bargain breach that revolves around “tactical” considerations. If this is indeed a trend, it ought to be resisted, but the best expedient is the obvious one: just make sure all the terms are spelled out.

Ineffective Assistance – McCann v. Richardson Rule: Misjudgment as to Admissibility of Confession Doesn’t Necessarily Taint Advice to Plead Guilty

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

For Milanes: Joan M. Boyd

Issue/Holding: Rule of McMann v. Richardson, 397 U.S. 759, 769-71 (1970) (“Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel’s advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases”) adopted: ¶17      … Even if we were to believe that Milanes was correct that his confession would likely have been suppressed (and that he would not have been convicted without it) this would not necessarily entitle him to withdraw his plea. The question is not whether Milanes’ counsel’s advice that Milanes should plead guilty is the same advice we would have given, but “whether that advice was within the range of competence demanded of attorneys in criminal cases.” McMann, 347 U.S. 770-71. Given the risk involved in rejecting the State’s plea offer and the limited chance of success at a suppression hearing, we hold that Milanes’ counsel easily met that standard. Nor is application of the McCann rule inhibited by medical reports in the record that the defendant was mentally ill, given that these indications “do not to us appear even to begin to show that he was unable to understand the constitutional rights he was relinquishing or the nature of the crimes to which he was pleading,” ¶18. For that matter, the transcript of the plea hearing isn’t even included in the appellate record (!), so the court therefore must assume that Milanes demonstrably understood the meaning and consequences of his plea. In short: “We see nothing in this case to distinguish it from McCann,” id.

Deficient Performance – Guilty Plea – Misadvice as to Penalty

State v. Reinier A. Ravesteijn, 2006 WI App 250

For Ravesteijn: Rudolph L. Oldeschulte

Issue/Holding: Counsel’s misinforming defendant that the degree of the offense (kidnapping) could be argued at sentencing was deficient; and, because the sentence exceeded the maximum exposure on the lesser degree of the offense, the misadvice was prejudicial, ¶¶27-29. However, the remedy is to vacate the sentence on that count and remand for a determination of the degree of guilt: ¶31      However, we have no confidence that Ravesteijn knowingly entered his plea to the Class B felony charge of kidnapping. Ravesteijn’s unknowing waiver of the opportunity to reduce the charge to a Class C felony and thereby reduce his potential punishment resulted in manifest injustice. Resentencing is all that is necessary to correct the injustice done here. Therefore the sentence imposed pursuant to Wis. Stat. § 940.31(2)(a), a Class B felony, is set aside and vacated. The cause is remanded for a determination of whether Ravesteijn is guilty of a Class B or Class C felony. If the parties cannot stipulate to the presence or absence of the mitigating circumstance that would reduce the penalty to be imposed for kidnapping, a trial, either to the court or jury, may be convened on that one disputed fact. At resentencing, the circuit court is to give due and appropriate consideration to any term of imprisonment Ravesteijn has served pursuant to the current judgment of conviction and sentence. We affirm the order denying plea withdrawal. Interesting if unusual variation, related in the fundamental sense that it too involves counsel's calculation of potential maximum exposure, State v. Ey, FL SCt No. SC03-2161, 2/28/08 (counsel's performance held ineffective where he misadvised defendant that his plea to one pending crime wouldn't affect a future sentence on a separate crime that defendant told counsel he'd committed).

Deficient Performance -- Renegotiated Plea Bargain Following Breach By Defendant – Defendant's Assent Required, but Not KNowledge of Right to Specific Performance

State v. Brad S. Miller, 2005 WI App 114

For Miller: William E. Schmaal, SPD, Madison Appellate

Issue/Holding: ¶8        In State v. Sprang, 2004 WI App 121, 274 Wis. 2d 784, 683 N.W.2d 522, we explained that when a prosecutor breaches a plea agreement by arguing for a harsher sentence than the one the prosecutor agreed to recommend and defense counsel fails to object, the agreement has “morphed” into a new agreement.  See id., ¶27; see also State v. Liukonen, 2004 WI App 157, ¶21, 276 Wis. 2d 64, 686 N.W.2d 689 (reaffirming the principles articulated in Sprang).  Thus, defense counsel must consult with the defendant and receive verification that the defendant wishes to proceed with the “new” plea agreement. See Sprang, 274 Wis. 2d 784, ¶28; see also Liukonen, 276 Wis. 2d 64, ¶21. The Sprang decision teaches that even a strategically sound decision by defense counsel to forego an objection to a prosecutor’s breach without consulting with the defendant constitutes deficient performance because it is “tantamount to entering a renegotiated plea agreement without [the defendant’s] knowledge or consent.” Sprang, 274 Wis. 2d 784, ¶29; see also Liukonen, 276 Wis. 2d 64, ¶21.   ¶9        The transcript from the postconviction motion hearing indicates that Miller’s counsel had a strategically sound reason for not objecting to the State’s alleged breach. He had essentially concluded that Miller would not be able to prevail on a breach of plea agreement claim because of Miller’s criminal conduct in Iowa prior to sentencing. See State v. Windom, 169 Wis. 2d 341, 351-52, 485 N.W.2d 832 (Ct. App. 1992) (the fact that the defendant violated the terms of his probation was a “new and additional” factor that the State was entitled to consider in the subsequent and separate sentence hearing); State v. Giebler, 591 P.2d 465, 467 (Wash. Ct. App. 1979) (defendant cannot rely upon an agreement when he commits another offense while awaiting sentencing); United States v. Read, 778 F.2d 1437, 1441-42 (9th Cir. 1985) (promise to “take no position on what sentence should be imposed” does not cover defendant’s postplea criminality). The transcript further reveals that, during the sentencing hearing, Miller’s counsel consulted with him about whether he wished to withdraw his plea or proceed with the sentencing hearing based on the “new” plea agreement. The transcript establishes that Miller consented to continuing with the sentencing hearing. Because Miller’s counsel had a sufficient strategic reason for not objecting to the “new” agreement and he consulted with Miller and secured his consent to proceed, his performance was not deficient. See Sprang, 274 Wis. 2d 784, ¶¶27-30; Liukonen, 276 Wis. 2d 64, ¶¶20-22. Accordingly, Miller’s ineffective assistance of counsel challenge must fail. It’s almost as if ¶¶ 8 and 9 are from two different opinions. Nothing at all wrong with the statement of principles in ¶8: even a strategically sound basis can’t justify not objecting to prosecutorial recommendation not ratified by the agreement (for the simple reason that a plea agreement affects voluntariness of a plea, something personal to the defendant and therefore outside the realm of strategy); but then the court proceeds to say, in ¶9, “that Miller’s counsel had a strategically sound reason for not objecting to the State’s alleged breach.” What gives? Significantly, Miller’s trial attorney consulted with him about his right to withdraw the plea, once it became apparent that the prosecutor was changing its terms, ¶5. What counsel did not do was inform Miller that he had a right of specific performance, and it was that omission that was “strategic,” at least in the sense that counsel perceived no such right existed because Miller himself had breached the agreement by absconding before the schedule sentencing. Id. More particularly, what the court may have meant was simply that counsel reasonably discerned that, given Windom, Miller didn’t have a specific performance leg to stand on, and therefore didn’t need to be told about a right he couldn’t invoke. The holding, then, might not be so bad with that in mind (though the mention of “strategy” in this context is probably misleading). It’s worth remembering, though, that a plea agreement can’t be unilaterally terminated; defendant’s breach must be proven by the State and found by the court after proper hearing, State v. Rivest, 106 Wis.2d 406, 316 N.W.2d 395 (1982).

Deficient Performance: Prediction of Likely Sentence as Inducement for Guilty Plea State v. John S. Provo, 2004 WI App 97, PFR filed 5/7/04 For Provo: William H. Gergen Issue/Holding: ¶18 Provo further argues his counsel was ineffective for recommending that he accept the plea agreement because he ultimately received a more severe sentence than that propounded by his counsel. However, this is not a basis for an ineffective assistance of counsel claim. See People v. Felice, 477 N.W.2d 455, 460 (Mich. Ct. App. 1991) (“Counsel’s incorrect prediction concerning defendant’s sentence … is not enough to support a claim of ineffective assistance of counsel.”); Rosenfeld v. United States, 972 F. Supp. 137, 144 (E.D.N.Y. 1997) (“[M]istaken estimate of [a defendant’s] sentence is insufficient to support a claim for ineffective assistance of counsel.”). Moreover, our supreme court has recognized that a guilty plea can often be a mitigating factor in the sentencing process. See Jung v. State, 32 Wis. 2d 541, 550, 145 N.W.2d 684 (1966) (“It is common knowledge there is a wide practice in the courts of this country of accepting pleas of guilty and giving lighter sentences than are generally given for the same crime after a trial.”). Also see Weaver v. Palmateer, 9th Cir 04-36009, 7/17/06, to effect that counsel isn't required to be clairvoyant; IAC requires gross mischaracterization of the likely outcome. For the issue of a defendant's rejection of a plea bargain due to counsel's inaccurate advice, see State v. Fritz summary, below. As for the somewhat related problem of predicting parole, see McAdoo v. Elo, 6th Cir. No. 01-2050, 4/15/04: Considerable case law supports a determination that giving erroneous advice about parole may constitute deficient performance. Affirmative misstatements about parole possibilities are more objectively unreasonable than failure to inform the defendant about the parole possibilities. James, 56 F.3d at 667 (noting that “this Court and others have recognized that affirmatively erroneous advice of counsel as to parole procedure is much more objectively unreasonable than would be a failure to inform of parole consequences”). When defense counsel grossly misinforms a defendant about details of parole and the defendant relies on that misinformation, the defendant may have been deprived of his constitutional right to counsel. See Strader v. Garrison, 611 F.2d 61, 65 (4th Cir. 1979). In Meyers v. Gillis, 142 F.3d 664 (3d Cir. 1998), a habeas petitioner argued that his counsel was ineffective for giving him incorrect advice about parole eligibility. The Third Circuit granted habeas relief, stating that “Meyers did not realize he was, in all reality, pleading guilty to an offense that did not allow him to receive parole in the future.” Id. The court noted that, while a defendant does not have a constitutional right to be provided with parole eligibility information prior to entering a plea, any information that is provided by defense counsel must be accurate. Id. at 667 n.2. Different but somewhat related problem: counsel's performance held ineffective where he misadvised defendant that his plea to one pending crime wouldn't affect a future sentence on a separate crime that defendant told counsel he'd committed, State v. Ey, FL SCt No. SC03-2161, 2/28/08. There is also authority that where the advice turns out to be wrong as to mandatory release date [because the authorities subsequently derived a new interpretation of relevant statutes], so that counsel can't be termed constitutionally defective, the defendant will be held to an assumption of "a calculated risk" in making the plea decision. Bush v. Neet, 10th Cir No 03-1481, 3/8/05.

Deficient Performance -- Guilty Pleas -- Failure to Object to Plea Bargain Breach

State v. Jesse Liukonen, 2004 WI App 157

For Liukonen: Russell L. Hanson

Issue/Holding: Because there was no objection to the prosecutor’s breach of the plea bargain, the objection was waived, and the question becomes whether the failure to object was deficient performance. ¶18. And, because there was no Machner hearing, the case must be remanded for such a hearing (prejudice is presumed if deficient performance is shown). ¶19. ¶20. There is, however, a distinct ineffective assistance issue that may prove to be dispositive on remand. Even if Liukonen's trial counsel had a sufficient strategic reason for failing to object to the breach and, thus, did not perform deficiently, Liukonen may nonetheless be entitled to resentencing if his counsel did not consult with him about foregoing an objection. See Sprang, 2004 WI App 121, ¶¶27-29. ¶21. In Sprang, we explained that when a prosecutor breaches a plea agreement by arguing for a harsher sentence than the one the prosecutor agreed to recommend, the agreement has "morphed" into a new agreement. Thus, defense counsel must consult with the defendant and receive verification that the defendant wishes to proceed with the "new" plea agreement. See id., ¶28. The Sprang decision teaches that even a strategically sound decision by defense counsel to forgo an objection to a prosecutor's breach without consulting with the defendant constitutes deficient performance because it is "tantamount to entering a renegotiated plea agreement without [the defendant's] knowledge or consent." Id., ¶29. Further, "[b]ecause counsel's deficient performance involved a breach of a plea agreement, [the defendant] is automatically prejudiced." Id., ¶29. ¶22. The transcript in this case does not indicate whether Liukonen's counsel consulted with Liukonen regarding the breach during the sentencing hearing. Therefore, on remand, it should be determined whether such consultation occurred and whether Liukonen agreed to proceed despite the breach. If both did not occur, Liukonen is entitled to resentencing before a new judge regardless whether his counsel had a valid strategic reason for failing to object to the breach. The import is certainly clear enough, but could be made a bit more explicit. Yes, the court must hold a Machner hearing, and yes the issue is nominally one of ineffective assistance, but in truth it is much narrower, and turns on the defendant’s personal waiver. Counsel’s consultation with defendant over the breach is the only issue that matters. If, that is, counsel did not consult with the defendant before failing to object, then counsel’s performance was deficient as a matter of law; all the tactical justifications in the world can’t excuse waiver. This is because: a plea bargain implicates voluntariness of the plea itself, and a failure to object to a seeming violation of the agreement has the effect of putting in place a new agreement, something counsel simply isn’t authorized to do without the defendant’s personal assent; counsel’s unilateral renegotiation of the plea bargain has the effect of unsettling an otherwise voluntary plea. Again, therefore, the only issue to be litigated in this context is whether the defendant personally assented to the lack of objection, to what functionally became a new plea agreement. This result, it should be added, was foreshadowed in State v. Smith, 207 Wis. 2d2d 258, 558 N.W.2d 379 (1997): ¶25. Here, however, Smith's claim is based on a failure to object to adversary counsel's breach of a negotiated agreement. No further information or investigation was required to enable defense counsel to offer an objection at the sentencing hearing. Moreover, the failure to object flew in the face of the "informed strategic choice" made by Smith earlier when he entered into the plea agreement. The failure to object constituted a breakdown in the adversarial system. And, it is a vast improvement over the court of appeals’ inexplicable statement in Howard, 2001 WI App 137, ¶29 (“a Machner hearing is necessary so that Howard's counsel can explain whether her failure to object was based on strategy”).

Deficient Performance -- Guilty Pleas -- Failure to Object to Plea Bargain Breach

State v. Brian W. Sprang, 2004 WI App 121

For Sprang: Jefren E. Olsen, SPD, Madison Appellate

Issue: Whether, given the existence of a plea bargain breach, counsel’s “valid strategic reasons” for not objecting (counsel’s uncertainty that the prosecutor’s remarks indeed violated the agreement; his perception that the sentencing judge in any event “would not be unduly swayed by the prosecutor’s statements”; and his concern that an unknown judge would be reassigned) were trumped by his failure to consult with the defendant.

Holding: ¶27 We agree with the State that defense counsel had valid strategic reasons for choosing not to object to the prosecutor’s remarks. However, we have already concluded that those remarks constituted a breach of the negotiated plea agreement. When defense counsel made the decision to forego an objection, he did not consult with Sprang regarding this new development or seek Sprang’s opinion in the matter. Thus, Sprang had no input into a situation where the original plea agreement, which limited the State to arguing for conditions of probation, had morphed into one in which the State could suggest that the court impose a prison sentence without probation. As such, the plea agreement to which Sprang pled no longer existed. ¶28 That defense counsel failed to consult Sprang as to the new agreement violates the holding of State v. Woods, 173 Wis. 2d 129, 132-33, 141, 496 N.W.2d 144 (Ct. App. 1992). There, the defendant entered into plea agreement which permitted the State to seek a two-year sentence consecutive to an existing juvenile court placement. Id. at 133. However, just prior to sentencing and without the defendant’s knowledge, defense counsel and the prosecutor agreed that the State would ask for a two- to three-year consecutive sentence. Id. at 135- 7 We reject the State’s assertion that there is no evidence in the record to suggest that Sprang and his defense counsel had not consulted at the time of the remarks or at some other point discussed trial strategy, including whether to request a substitution of judge. The transcript of defense counsel’s testimony at the postconviction hearing clearly establishes that counsel did not discuss with Sprang his decision to forego an objection to the prosecutor’s remarks. Further, whether Sprang and his defense counsel had discussed a substitution of judge at a different juncture as part of a trial strategy is inapposite to whether Sprang would have chosen to proceed with the sentencing if he had been consulted. The prosecutor did so at sentencing, and the defendant’s attorney did not object to the prosecutor’s sentencing request, which was contrary to the plea agreement entered into by the defendant. Id. at 135. On appeal, we held that a guilty plea is a personal right of the defendant and that the defendant was entitled to withdraw his plea on grounds that defense counsel’s failure to object had resulted in a renegotiated plea agreement to which the defendant was never a party. Id. at 141. We held that “a defendant’s attorney cannot renegotiate the plea without the knowledge or consent of his or her client.” Id. ¶29 Here, the strategic decision by Sprang’s defense counsel to forego an objection to the State’s breach of the plea agreement without consulting Sprang was tantamount to entering a renegotiated plea agreement without Sprang’s knowledge or consent. It is on this basis that we conclude that defense counsel’s performance was deficient. Because counsel’s deficient performance involved a breach of a plea agreement, Sprang is automatically prejudiced. See Howard, 246 Wis. 2d 475, ¶26. (Clearly, then, strategic reasons can’t excuse the failure to object to a plea bargain breach. This is the only sensible approach, not merely because the breach is a necessary renegotiation of the agreement without the defendant’s input, but also because a breach in effect renders the plea involuntary [which may just be a way of explaining why the defendant’s input is required]. The net effect should be to reduce the purpose of a Machner hearing in this context to the issue of whether the defendant signed off personally on the failure to object. Counsel’s reasons for not objecting are now plainly irrelevant.)

Deficient Performance -- Guilty Pleas -- Failure to Object to Plea Bargain Breach

State v. Michael F. Howard, 2001 WI App 137

Issue: Whether the prosecutor breached a plea bargain calling for a maximum recommendation on multiple counts of concurrent terms of 25 years in prison, when the actual recommendation was for a total of 25 years but included consecutive terms.

Holding: Failure to object to plea bargain breach waives the issue, leaving ineffective assistance of counsel as the only mechanism for obtaining relief. ¶21. A material and substantial breach is necessarily prejudicial, but the defendant must still show deficient performance and the matter is remanded for a hearing on that issue. ¶¶25-29.

Analysis: The idea that an objected-to breach must be raised as ineffective assistance doesn't hold water. A plea bargain necessarily goes to the plea's voluntariness; if the bargain is breached, then the plea's voluntariness is unsettled; and, because voluntariness is entirely personal to the defendant, it's simply not something delegable to counsel's "tactical" maneuverings. In this case, "the State suggests that Howard's counsel may have made the strategic decision not to object," ¶29, and that's presumably what will be litigated on remand. But this only assumes, without explanation, that counsel does have strategic authority in this area. Another way of looking at the problem: By not objecting, counsel in effect renegotiated a different agreement, without Howard's input, something counsel obviously lacked authority to do. To the extent it's necessary to label this ineffective assistance, how different is this situation, really, from State v. Antonio A. Scott, 230 Wis. 2d 643, 659, 602 N.W.2d 296 (Ct. App. 1999) (counsel's renegotiating terms of settled agreement, without informing defendant of right to enforce original agreement, held deficient)? Failure to object to a plea bargain breach, because it fundamentally changes the assumptions underlying the plea, is the functional equivalent of a new plea and should equally require express, personal assent.

Deficient Performance -- Plea bargains -- failure to advise client of enforceability of original agreement after state withdrew from it  State v. Antonio A. Scott, 230 Wis.2d 643, 602 N.W.2d 296 (Ct. App. 1999)  For Scott: Jennifer L. Weston  Issue: Whether Scott was denied effective assistance of counsel when his attorney allowed him to renegotiate an already-consummated plea bargain without advising that the original agreement was enforceable. Holding: Counsel's failure to inform Scott that he had a fully enforceable right to performance of the original plea bargain, prior to renegotiating the agreement, was both deficient and prejudicial.

Deficient Performance -- Guilty Plea -- Failure to Object to Plea Bargain Violation

State v. Smith, 207 Wis.2d 259, 558 N.W.2d 379 (1997)

For Smith: John Pray, UW Law School

Issue/Holding: ¶24 Normally, judicial scrutiny of an attorney's performance will be highly deferential.... ¶25 Here, however, Smith's claim is based on a failure to object to adversary counsel's breach of a negotiated agreement. No further information or investigation was required to enable defense counsel to offer an objection at the sentencing hearing. Moreover, the failure to object flew in the face of the "informed strategic choice" made by Smith earlier when he entered into the plea agreement. The failure to object constituted a breakdown in the adversarial system.

Deficient Performance -- Guilty Plea -- Improper Advice as to Rejecting Plea Bargain

State v. James A. Fritz, Jr., 212 Wis.2d 284, 569 N.W.2d 48 (Ct. App. 1997)

For Fritz: Wm. J. Tyroler, SPD, Milwaukee Appellate

Issue/Holding: The effective-assistance-of-counsel right applies to advice as to whether a defendant should accept or reject a plea bargain, State v. Ludwig, 124 Wis.2d 600, 608–612, 369 N.W.2d 722, 725–728 (1985); Toro v. Fairman, 940 F.2d 1065, 1067 (7th Cir. 1991); Turner v. Tennessee, 858 F.2d 1201, 1205 (6th Cir. 1988) (citing cases), vacated on other grounds, 492 U.S. 902 (1989); those enmeshed in the gears of the criminal justice system need advice and guidance— not only in the selection and execution of trial strategies but also in the decision of whether to forego a trial by pleading guilty (or one of its many variants). We agree with the trial court that a lawyer who counsels perjury as a way of beating a “he says-she says” charge is “not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” See Strickland, 466 U.S. at 687; cf. Nix v. Whiteside, 475 U.S. 157, 166–171 (1986) (lawyer may not either encourage or tolerate client's perjury). Moreover, although we do not condone what appears to be Fritz's perjury at trial, see § 946.31, STATS., and we encourage the State to investigate whether Fritz and Pulkinen should be charged criminally as a result of Fritz's trial testimony and Pulkinen's testimony at the postconviction hearing, the simple fact is that persons hire lawyers to guide them through the legal system's shoals: a “defendant can be expected to rely on counsel's independent evaluation of the charges, applicable law, and evidence, and of the risks and probable outcome of trial.” In re Alvernaz, 830 P.2d 747, 753 (Cal. 1992); see also Ludwig, 124 Wis.2d at 610, 369 N.W.2d at 727 (a defendant has “substantial dependence upon her attorney to inform her of what she needs to know”). This is what Fritz did. There will probably be no dispute that "(a) defense attorney’s failure to notify his client of a prosecutor’s plea bargain offer constitutes defective performance," Satterlee v. Wolfenbarger, E.D. Mich. No. 03-7162-DT, 6/23/05, affirmed, 6th Cir No. 05-2013, 6/30/06 (court also affirming grant of relief in form of requiring that state re-extend offer). A challenge to counsel's advice to reject a plea bargain is quite a bit more exotic than that, as reflected by one court's articulation of the onerous showing necessary to relief, Almonacid v. U.S., 7th Cir No. 05-4753, 2/14/07 ("When counsel advises the defendant to reject a plea offer, his performance is not objectively unreasonable unless such advice is made 'in the face of overwhelming evidence of guilt and an absence of viable defenses.' Gallo-Vasquez v. United States, 402 F.3d 793, 798 (7th Cir. 2005)."). That said, the facts of Fritz -- exhorting a client to reject a plea offer and commit perjury at the resultant trial -- are more exotic still. But the larger idea does have to do with counsel's obligation simply to provide advice about accepting or rejecting the offer. For additional authority on that question, see Smith v. U.S., 2003 FED App 0387P (6th Cir. 11/3/03): though counsel has no obligation, despite overwhelming evidence of guilt, "to insist" that client take plea offer, counsel does have "a clear obligation to fully inform her client of the available options," which includes an assessment of sentencing exposure. Of course, it follows that counsel's assessment must be accurate, see, e.g., U.S. v. Herrera, 5th Cir No. 04-50633, 6/10/05 (counsel's faulty advice re: exposure under plea bargain as compared with pending charge deficient, court observing, "A defendant cannot make an intelligent choice about whether to accept a plea offer unless he fully understands the risks of proceeding to trial."). Generally, counsel performs deficiently by inducing rejection of a plea agreement through misadvice of the plea consequences. See, e.g., United States v. Gordon, 156 F.3d 376, 381-82 (2d Cir. 1998) (counsel performed deficiently in "grossly underestimating Gordon's sentencing exposure "); Hoffman v. Arave, 9th Cir No. 02-99004,7/5/06 (deficient performance to advise rejection of plea bargain which risked much -- capital sentencing -- in exchange for very little, where advice based on incomplete legal research) (note: Cert was granted in Hoffman, Arave v. Hoffman, USSC No. 07-110, 11/5/07, but was dismissed as moot 1/7/08, see docket); Davis v. Greiner, 2nd Cir No. 04-4087, 10/11/05 (deficient performance to fail to warn Davis of a "crucial aspect of the plea bargain," namely that his "proffer statements could be used against him"). As to remedy for a plea bargain rejection occasioned by deficient advice from counsel, the conviction will be vacated but Fritz goes on to suggest that the decision whether to re-extend the previously rejected plea bargain is simply a matter of prosecutorial discretion. But for a different approach on the issue of remedy, see U.S. v. Williams, 2nd Cir. No. 02-1643, 6/10/04: In Carmichael, where a defendant’s delay in accepting a plea offer was the result of defense counsel’s ineffective assistance, and in which the delay resulted in a less favorable plea agreement, we held that the appropriate remedy was to resentence the defendant “to the terms [the defendant] would have received had he been given proper legal advice.” Id. at 227. We cautioned, however, that a lesser sentence was not inevitable as the District Court on remand would have to inquire, at an appropriate hearing, as to the terms of the agreement the defendant could have received, whether the defendant would in fact have accepted the plea, and even whether the district court would have followed the sentencing recommendations contained in the agreement. See id. We similarly hold that Williams is entitled to be resentenced “to the terms [he] would have received had he been given proper legal advice.” Id. We acknowledge that this will be a difficult task, and the District Court ought to gather any evidence needed to reconstruct the likely result Williams would have obtained had he not had conflicted counsel. For example, the court might hear evidence as to the relative culpability of co-defendants who did enter into plea agreements as well as evidence concerning Williams’ assertion that he had knowledge that would have been valuable to the government, especially knowledge of the whereabouts of a missing co-defendant. See also Riggs v. Fairman, 9th Cir No 02-55185, 3/7/05: When ineffective assistance of counsel has deprived a defendant of a plea bargain, a court may choose to vacate the conviction and return the parties to the plea bargaining stage. See United States v. Gordon, 156 F.3d 376, 381-82 (2d Cir. 1998). A court may also order the government to reinstate its original plea offer to the defendant or release the defendant within a reasonable amount of time. See Nunes, 350 F.3d at 1056-57 (9th Cir. 2003). In deciding the proper remedy, a court must consider the unique facts and circumstances of the particular case. See Morrison, 449 U.S. at 364. But note: The 9th Cir, on 11/30/05, ordered en banc review of Riggs, which strips the panel decision of precedential effect. Nunes, though, followed more recently, Hoffman v. Arave, 02-99004, 7/5/06 (note: Cert was granted in Hoffman, Arave v. Hoffman, USSC No. 07-110, 11/5/07, but was dismissed as moot 1/7/08, see docket). Specific perfromance rejected as remedy for counsel-generated error on guilty plea: David Julian v. Bartley, 7th Cir No. 05-3585, 7/25/07.

Deficient Performance -- Jury Selection

Deficient Performance -- Venue Motion -- failure to renew

State v. Charles J. Benoit, 229 Wis.2d 630, 600 N.W.2d 193 (Ct. App. 1999).

For Benoit: Meredith J. Ross, LAIP.

Issue/Holding: Benoit argues ineffective assistance, based on counsel's failure to renew a change of venue motion and to provide additional documentation of prejudicial publicity. Counsel sought change of venue before voir dire; the motion was denied, but with leave to renew. These omissions weren't deficient. Voir dire, in effect, weeded out jurors exposed to potentially prejudicial publicity and, the additional publicity wasn't sufficiently inflammatory to have been brought to the trial court's attention.

Deficient Performance -- Venue

State v. Theodore Oswald, 2000 WI App. 2, 232 Wis.2d 62, 606 N.W.2d 207

For Oswald: Jerome F. Buting, Kathleen B. Stilling

Issue: Whether counsel was ineffective for failing to seek change of venue.

Holding: Failure to seek change of venue was consistent with the planned defense strategy and therefore will not be second-guessed. ¶71.

Deficient Performance -- Jury Selection -- Admittedly Biased Juror

State v. Howard C. Carter, 2002 WI App 55

For Howard: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding: ¶15. Here, counsel failed to further question the juror's statement of admitted bias, failed to move to strike the prospective juror for cause and failed to use a peremptory challenge to remove him from the jury panel. A guilty verdict without twelve impartial jurors renders the outcome unreliable and fundamentally unfair. See State v. Krueger, 2001 WI App 14, 4, 15, 240 Wis. 2d 644, 623 N.W.2d 211. Consequently, counsel's failure to act to remove a biased juror who ultimately sat on the jury constitutes deficient performance resulting in prejudice to his client. Accordingly, we reverse the conviction and remand the matter for a new trial.

Deficient Performance -- Failure to Strike Juror Who Had Been Victim

State v. William F. Williams, 2000 WI App 123, 237 Wis.2d 591, 614 N.W.2d 11

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

Issue: Whether counsel was ineffective for failing to move to strike a juror whose past experience as a victim raised potential question about her fairness, where counsel used a peremptory strike to remove this juror.

Holding: Counsel's tactical decision to peremptorily strike the juror was appropriate. ¶25.

Go To Brief

Deficient Performance -- Failure to Strike Juror Expressing Dount as to Ability to Be Fair

State v. Gary R. Brunette, 220 Wis. 431, 583 N.W.2d 174 (Ct. App. 1998)

For Brunette: Kevin Schram

Issue/Holding: We reject Brunette's premise that it is deficient performance not to seek to remove a potential juror who states he or she cannot categorically guarantee impartiality, regardless of the other information revealed by the juror and evaluated by the trial counsel. Brunette's counsel was functioning exactly as proficient counsel should: he followed up with questions to gather more information about the type of person Herrin was-and the type of juror she would likely be-and then made a decision, in the context of the particular case and the particular theory of defense, whether it would be helpful to the defense to have her on the jury. The decision trial counsel made-that he wanted her on the jury and therefore was not going to seek to have her removed-was a reasonable one under all the circumstances. State v. Traylor, 170 Wis.2d 393, 489 N.W.2d 626 (Ct. App.1992), distinguished: there, counsel failed to ask any follow-up questions in face of apparent bias

Deficient Performance -- Jury Instructions

Deficient Performance Jury Instructions – Failure to Request Instruction of Defense of Accident

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

For Demmerly: Edward J. Hunt

Issue/Holding: Although accident and self-defense are not mutually exclusive, failure to request an accident instruction on a charge of first-degree intentional homicide is not deficient performance: ¶27 We addressed this issue in State v. Ambuehl, 145 Wis. 2d 343, 352, 425 N.W.2d 649 (Ct. App. 1988). There, the defendant was convicted of attempted murder and claimed that her counsel’s failure to request an instruction on accident constituted deficient performance. In rejecting Ambuel’s argument, we reasoned that “[i]ntent to kill is the crux of attempted first-degree murder. All reasonable persons know that intent is the antithesis of accident.... For that reason, we reject the view that the trial court must explain to the jury that accident is the opposite of intent.” Id. We concluded that because the defendant was not entitled to an accident instruction, the attorney’s failure to make this request was not deficient performance. Id. Similarly, Attorney Berk’s failure to request an instruction on accident was not deficient performance.

Deficient Performance -- Failure to Request Instruction on Defense of Mistake, § 939.43 State v. Robert L. Snider, 2003 WI App 172, PFR filed 8/22/03 For Snider: Timothy J. Gaskell Issue/Holding: ¶24. We conclude trial counsel's performance was not deficient for not requesting an instruction on the defense of mistake. Counsel's explanation that she did not want to risk confusing the jury by arguing that her client did not touch the victim's pubic area, but if he did, it was because he thought it was the victim's mother, is both plausible and reasonable. Not only was there a risk of confusing the jury but a risk that the jury would find Snider's alternative exculpatory claims incredible. It was therefore an objectively reasonable strategy for trial counsel to choose not to pursue conflicting defenses. See Hubanks, 173 Wis. 2d at 28. The decision was a reasonable one based on the facts and circumstances existing at the time of trial and did not fall outside the broad range of professional norms. See Strickland, 466 U.S. at 697

Deficient Performance -- Failure to Object to Jury Instructions -- Unanimity

State v. George S. Tulley, 2001 WI App 236

For Tulley: Patrick M. Donnelly

Issue: Whether counsel was ineffective for failing to object to jury instructions and verdict forms that outlined multiple assaultive acts in each separate count.

Holding: ¶17. We conclude that, given the testimony at trial, Tulley has not met his burden of proving that trial counsel's not objecting to the jury instruction or verdict forms constituted deficient performance because the verdict forms and jury instruction correctly stated the applicable law. The jury was presented with evidence of multiple crimes in the form of A.K.'s testimony. The instruction that the court gave required the jury to unanimously agree on Tulley's guilt or innocence for each count. The verdict forms properly specified the location of each alleged assault and whether sexual contact or sexual intercourse was alleged to have occurred at each location. This is not a case in which a juror reasonably could have doubted whether a particular charged activity at any location occurred while also being convinced that other charged activity did occur at the same location. There was no basis for finding that some of the sexual assaults that A.K. described had occurred but others had not, because all of the assaults at all of the locations were described and supported by the same uncontradicted testimony. Therefore, we conclude that Tulley has not met his burden to show that trial counsel's performance in this area was deficient.

Go To Brief

Deficient Performance -- Voir Dire

State v. David J. Wolfe, 2001 WI App 136, 240 Wis. 2d 95, 622 N.W.2d 449, PFR filed 5/18/01

For Wolfe: Ann T. Bowe

Issue: Whether counsel was ineffective, in an SVP commitment trial, for failing to move to strike a juror who had been sexually assaulted.

Holding: In view of the juror's "numerous" expressions of ability to remain fair; of the respondent's express desire to leave her on the jury; and prior precedent establishing that status as a sexual assault victim doesn't work a categorical exclusion: "Whether trial counsel should move the court to strike a juror for cause is his or her tactical decision to make. Oswald (Theodore), 2000 WI App 2 at ¶63. We conclude that defense counsel's decision not to move to strike Guthrie was a reasonable, tactical decision and does not constitute deficient performance, particularly in light of Wolfe's desire that she remain on the jury."

Deficient Performance -- voir dire

State v. Theodore Oswald, 2000 WI App. 2, 232 Wis.2d 62, 606 N.W.2d 207

For Oswald: Jerome F. Buting, Kathleen B. Stilling

Issue: Whether trial counsel was ineffective for failing to ask follow-up questions of, or for failing to move to strike, jurors who were admittedly biased.

Holding: Counsel's questioning was sufficiently thorough, ¶62, and his failure to move to strike was consistent with his well-reasoned strategy to concede participation in the crimes. ¶¶64-66.

General

Tactics -- General State v. Lisa A. Carter, 229 Wis. 2d 200, 598 N.W.2d 619 (Ct. App. 1999)  For Carter: Paul G. LaZotte  Issue/Holding: A trial court ruling that counsel's deficiencies were strategic, though he testified he couldn't recall a strategic reason for them, held clear error. (Relief denied, though, for lack of prejudice.)

Tactics -- General

State v. William Nielsen, 2001 WI App 192, PFR filed

For Nielsen: Waring R. Fincke

Issue/Holding: ¶41 ...[T]rial counsel provided undisputed testimony that it was his decision, based on trial strategy, not to oppose the introduction of the testimony.... ¶45. We will not second guess trial counsel's selection of trial tactics or strategies in the face of alternatives that he or she has considered. See State v. Felton, 110 Wis. 2d 485, 502, 329 N.W.2d 161 (1983). Rather, we 'judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.' State v. Pitsch, 124 Wis. 2d 628, 636, 369 N.W.2d 711 (1985). ¶46. Counsel explained that he considered the evidence and essentially decided to allow its introduction so that he could argue that T.H. was also making false allegations of theft. This defense was a reasonable trial strategy by defense counsel and did not constitute ineffective assistance of counsel. See Felton, 110 Wis. 2d at 502.... ¶52 ... Counsel testified that it is part of his general trial strategy not to object to the State's closing argument 'unless there's something substantially inappropriate in regards to counsel's arguments.' ¶53 ... Based on counsel's explanation that he rarely objects during closing argument and our own conclusion that the State's comments were not objectionable, we conclude that Nielsen has failed to prove that his counsel provided deficient representation during the State's closing argument.

Deficient Performance -- Sentencing

Deficient Performance -- Sentencing -- Failure to Argue Known Mitigation State v. Harold C. Pote, III, 2003 WI App 30 For Pote: John A. Pray, Remington Law Center Issue/Holding: Counsel performed deficiently at sentencing by failing to offer known mitigation. ¶34 We acknowledge that the trial court found credible counsel’s testimony that Pote threatened him and instructed him to “do nothing” when the court proceeded to sentence him to prison for his failure to pay child support. We conclude, however, that notwithstanding his client’s arguably erratic and irrational behavior, counsel’s failure to bring to the court’s attention any of several mitigating circumstances relevant to sentencing, or in the alternative, to request a continuation of the sentencing proceeding and permission to withdraw from representation, constituted omissions which fall outside the range of professionally competent representation. See Strickland, 466 U.S. at 690. ¶35 First, we see no reason why counsel could not have informed the court that his client was upset over his present circumstances and had requested that counsel not make an argument on his behalf, but that counsel felt obligated to bring to the court’s attention one or more of the following facts.... State v. Divanovic, 200 Wis. 2d 210, 546 N.W.2d 501 (Ct. App. 1996), distinguished, in that no showing here that "Pote had received and considered counsel's advice regarding what actions might be in his best interest." And, if counsel regarded defendant's threats as serous, counsel was obligated to seek to withdraw from further representation. ¶36. The deficiency was prejudicial, because Pote got the maximum (which is reserved for "more aggravated" cases), despite the presence of unargued mitigators. ¶41.

Deficient Performance -- Sentencing -- Inability to Fully Review PSI, Failure to Seek Adjournment

State v. Wayne R. Anderson, 222 Wis. 2d 403, 588 N.W.2d 75 (Ct. App. 1998)

For Anderson: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding: Counel performed deficiently in failing to seek an adjournment offered by the trial court to fully review the presentence investigation report, which became available only one-half hour before sentencing and which contained allegations that defendant disputed.

The State "concede(d) that Anderson's trial counsel was ineffective for failing to seek an adjournment of the sentencing or in failing to take up the trial court's offer of a continuance so that he and Anderson could complete their review of the PSI," and the court finds deficient performance literally without analysis. The priincipal dispute was whether Anderson was prejudiced (he was -- as discussed separately, below). But the fact is that Anderson did lodge a contemporaneous objection to the accuracy of the allegations, that the trial did not make any attempt to resolve the dispute, and that Anderson did argue on appeal that as a result he had been sentenced on the basis of inaccurate information. The larger lesson, then, seems to be that responsibility for full airing of disputed contentions at sentencing is on counsel rather than the trial court.

Prejudice

Ineffective Assistance – Prejudice – Failure to Ensure Tape Recording Played to Jury Taken Down by Court Reporter

State v. Garrett L. Huff, 2009 WI App 92, PFR filed 6/3/09

For Huff: Jeffrey W. Jensen

Issue/Holding: ¶16      Huff has not even alleged, no less shown, how not reporting the audio tapes as they were played prejudiced him. As noted, he has not made either the tapes or the transcript part of the appellate Record, and has not, therefore, shown us that anything in those tapes was exculpatory. Accordingly, we do not discuss further the trial court’s violation of the law recognized by Ruiz-Velez. See Vesely v. Security First Nat’l Bank of Sheboygan Trust Dep’t, 128 Wis. 2d 246, 255 n.5, 381 N.W.2d 593, 598 n.5 (Ct. App. 1985) (we will not address inadequately developed contentions).

Ineffective Assistance – Prejudice – Strong Eyewitness Testimony

State v. Juan M. Sandoval, 2009 WI App 61, PFR filed 5/6/09

For Sandoval: Jefren E. Olsen, SPD, Madison Appellate

Issue/Holding: Failure to impeach rebuttal witness not prejudicial, given “the strong case the State made against Sandoval,” which included eyewitness testimony from an on-scene police officer who identified Sandoval as the shooter as well as, among other things, evidence of Sandoval’s DNA found on the gun; additionally, the impeachment value would not have been great in that the rebuttal witness clearly waffled anyway (“the jury witnessed firsthand Vela’s flip-flopping and still convicted Sandoval”), ¶¶36-37.

Ineffective Assistance – Prejudice: Jury Unanimity with Respect to Unanimity, Multiple Sexual Assaults

State v. Christopher F. Becker, 2009 WI App 59, PFR filed 5/8/09

For Becker: Jeremy C. Perri, SPD, Milwaukee Appellate

Issue/Holding: Waived objection to jury instruction “which failed to tie a particular act of sexual contact to a particular count” on a 2-count information of sexual assault of a child, not prejudicial (State v. Marcum, 166 Wis. 2d 908, 480 N.W.2d 545 (Ct. App. 1992), distinguished): ¶22   … As noted earlier, the Marcum jury returned a combination of verdicts, two acquittals and one guilty, making it impossible to know if all twelve jurors agreed that Marcum committed the same act in the count where there was a guilty verdict. See id. at 920. … ¶23   Unlike the defendant in Marcum, Becker was not prejudiced by his counsel’s failure to make a timely objection to the jury instructions, and thus does not prevail on this claim. See id. at 924. Unlike the Marcum jury, the jury here did not return a combination of acquittal and guilty verdicts; rather, it convicted Becker on both counts in question, returning two verdicts of guilty. See id. at 920. This eliminates the risk that the jury was not unanimous and, thus, does not give rise to prejudice by offending the unanimous jury requirement. The unanimity of the jury is accurate even if the jurors, as a result of the trial court’s answer to their question, did not all agree on which act should be assigned to which count. ¶24   Moreover, the jury was explicitly told that “[e]ach Count charges a separate crime and you must consider each one separately.” We agree with the State that no reasonable juror could hear that instruction and conclude that he or she could predicate both guilty verdicts on the same act. Thus, when all the jurors agreed that Becker was guilty of both counts, they unanimously agreed beyond a reasonable doubt that he had committed both of the acts of sexual assault charged: the act of touching the victim’s vaginal area and the act of allowing or causing the victim to touch his penis. How each individual juror assigned the two acts between the two counts made no difference; for however each juror assigned them, each juror could not find Becker guilty of both counts without concluding beyond a reasonable doubt that Becker engaged in both acts charged. One count involved touching the victim’s vagina, the other involved touching the defendant’s penis—the court stresses absence of “any suggestion that Becker touched the victim’s vaginal area two times,” ¶26, in other words, absence of any possibility the jury would have confused the necessary showing. (“Given the jury’s guilty verdicts on both counts, it is inconsequential as to which type of touching was tied to which count by the individual jurors because the jurors unanimously agreed that Becker was guilty beyond a reasonable doubt of both a sexual assault consisting of his touching the victim’s vaginal area and a sexual assault consisting of him allowing or causing the victim to touch his penis,” ¶27.) The court does, though, recognize the potential for mischief and serves up some stern advice; cold comfort for Becker no doubt, but worth the next litigant’s close attention: ¶10   Before we proceed to our analysis, we make the following edifying clarifications. This entire issue could have been avoided if the State had not put it in play with its sloppy draftsmanship. In the complaint and information, the district attorney did not tie the specific act of Becker touching the victim’s vaginal area to a specific count; nor did he tie the specific act of Becker allowing or causing the victim to touch his penis to a separate, specific count. Where a defendant, such as Becker, is charged with multiple acts violating a criminal statute, the district attorney should tie a specific act to each count in the case. The complaint and/or information should then specify in each count the specific act to which it applies. This should also be done if there are multiple acts occurring at different times or on different days. If the district attorney fails to charge with particularity, defense counsel should bring a motion to make the complaint and/or information more definite and certain. Finally, the trial court is not a lemming and should not overlook sloppy charging by the State. Rather, regardless of the State’s lack of care, the trial court should take great care to not give generic, nonspecific instructions or verdict forms to the jury. Having conveyed, with particularity, how to avoid this problem in the future, we continue with our analysis.

Ineffective Assistance – Prejudice – Challenge to Performance on Acquitted Count

For Prineas: Raymond M. Dall'osto, Kathryn A. Keppel

Issue/Holding: Challenge to counsel’s performance relating to a count on which the jury acquitted necessarily fails due to lack of prejudice, ¶35.

The court further indicates that “various other allegations” of deficient performance need not be reached, apparently because Prineas was acquitted on 4 of the 6 counts against him, ¶36.

Ineffective Assistance – Prejudice - Opinion Testimony re: Complainant’s Truthfulness

State v. Bryan James Krueger, 2008 WI App 162

For Krueger: Bradley J. Lochowicz

Issue/Holding: Where the issue was purely one of credibility, counsel’s failure to object to inadmissible opinion evidence enhancing the complainant’s credibility was prejudicial, ¶¶18-19.

Ineffective Assistance – Prejudice: Failure to Seek Remedy Available to Violation of Vienna Convention on Consular Relations

Johnbull K. Osagiede v. USA, 7th Cir No. 07-1131, 9/9/08

Issue/Holding: Although “direct” violation of the Vienna Convention doesn’t support suppression of evidence or dismissal of charge, other possible remedies may be fashioned; therefore, counsel’s deficient failure to raise such a violation is subject to “prejudice” analysis on an ineffective-assistance claim: The Government seems to assume that the only recourse available to Osagiede’s counsel would have been to file a motion for suppression or for dismissal, or perhaps to let the proceedings run their course and then raise the Article 36 violation on appeal. The Government focuses inordinately on backward-looking remedies and ignores the fact that the trial court judge is in a unique position to remedy an Article 36 violation before prejudice has occurred. Cf. Breard v. Pruett, 134 F.3d 615, 622 (4th Cir. 1998) (Butzner, J., concurring) (“The provisions of the Convention should be implemented before trial when they can be appropriately addressed”). Osagiede’s lawyer could have taken a simple action to remedy the Government’s violation of his Article 36 rights: she could have informed the foreign national of his rights and raised the violation with the presiding judge. As the Court noted in Sanchez-Llamas, if a defendant “raises an Article 36 violation at trial, a court can make the appropriate accommodations to ensure that the defendant secures, to the extent possible, the benefits of consular assistance.” Sanchez-Llamas, 548 U.S. at 350, 126 S. Ct. 2669. After being apprised of a potential violation, “a court might . . . inquire as to whether a defendant knows that he may contact his consulate; it might even order that the prosecuting authority allow a foreign national to contact his consulate.” Mora v. New York, 524 F.3d 183, 200 n.24 (2d Cir. 2008). The record makes clear that Osagiede’s counsel failed to seek this modest remedy. This failure precluded Osagiede from exercising his right to consular assistance and may well have been prejudicial. Prejudice, of course, is typically case-specific. Here, prejudice might (a hearing is ordered on the subject) have accrued from assistance that the consulate would have provided with respect to locating a potential witness and in helping decipher Nigerian accents on tape recordings that were used to aggravate the sentence. The defense bears this burden, and it might be much stiffer than the court lets on. The lesson is that, despite the court’s disavowal, precisely because of trial counsel’s omission, the inquiry is very much “backward-looking.” Better by far to deal with the problem when it first raises its head, without having to swivel it 180 degrees, don't you think?

Effective Assistance – Prejudice – Unanimity Instruction, Possession of Child Pornography

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

For Van Buren: Waring R. Fincke

Issue/Holding: Counsel’s failure to request a specific unanimity instruction with respect to juror agreement on which of the identified pictures was both harmful and shown to the victim was not prejudicial: ¶22      We reject this claim because Van Buren has not demonstrated the prejudice necessary to show ineffective assistance of counsel. The cases cited by Van Buren state that a criminal defendant is entitled to a jury trial, see State v. Cleveland, 50 Wis. 2d 666, 670, 184 N.W.2d 899 (1971), and jury unanimity, see State v. Koput, 134 Wis. 2d 195, 203-04, 396 N.W.2d 773 (Ct. App. 1986), rev’d on other grounds, 142 Wis. 2d 370, 418 N.W.2d 804 (1988). They do not relieve a defendant claiming ineffective assistance of the burden to show that, because of counsel’s unprofessional errors, the verdict is unreliable. In this case, Van Buren must show that there was a “reasonable probability” that the lack of a specific unanimity instruction resulted in a non-unanimous jury verdict. See Strickland, 466 U.S. at 694. ¶23      He has not so shown. The victim identified the two pictures nearly simultaneously, and both are undisputedly photos of “naked kids.” There is simply no basis in the record to suggest that the jury might have believed the victim with respect to one of the images and not the other, or found one of the images harmful and the other not. Our confidence in the verdict, and its unanimity, is not at all undermined. See id.

Effective Assistance – Prejudice – Failure to Object, to Taser Device Worn by Defendant in Courtroom

State v. Kevin M. Champlain, 2008 WI App 5, (AG’s) PFR filed 1/4/08

For Champlain: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: ¶28      The second Strickland prong is prejudice. [9] To establish constitutional prejudice the defendant must show that but for counsel’s unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different. Cooks, 297 Wis. 2d 633, ¶33. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. (quoting Strickland, 466 U.S. at 694). The focus of this inquiry is not the outcome of the trial, but on the reliability of the proceedings. State v. Thiel, 2003 WI 111, ¶20, 264 Wis. 2d 571, 665 N.W.2d 305. “Reliable” means something that “can be depended upon with confident certainty.” See The Random House Dictionary of the English Language 1628 (2d ed. 1987). … ¶31      Since no juror testified, we cannot say with absolute certainty that any juror saw the device or, if so, understood the purpose it served. [10] But given the numerous opportunities for such observation and the fact that the device markedly set off the appearance of Champlain’s right arm fitted with the device from his bare left arm, we think the only logical conclusions are that the jury saw the device and at least suspected it was intended for security purposes. Finally, we note that Champlain’s burden on the prejudice prong is not absolute certainty, but rather to demonstrate “a probability sufficient to undermine confidence in the outcome.” Cooks, 297 Wis.  2d 633, ¶33. In the final analysis, we are not confident in the reliability of this trial result. The requirement of showing “prejudice” apparently is, in this context, nominal only. The court pays it lip service, noting that where the challenge to erroneous restraint is “direct,” then prejudice “is presumed,” fn. 9, citing State v. Tatum, 191 Wis. 2d 547, 553, 530 N.W.2d 407 (Ct. App. 1995); as contrasted with IAC challenge to the same event, which entails a “slightly different” analysis, id. Or so the court says. But if you look for the sort of analysis you’d ordinarily associate with IAC-prejudice, you simply won’t find it. Was the strength of the State’s case overwhelming? Maybe, maybe not. Seemingly, it just doesn’t matter. Instead, the court is content to say that most likely, the jury saw the device and also suspected its purpose; and that’s it. The cite to Tatum is revealing. Indeed, the court might have been even better served citing, for the same proposition, Deck v. Missouri, USSC No. 04-5293, 5/23/05 (“where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation”). In other words, when the defendant is improperly restrained, the error is “structural” – harm inheres to the error and reversal of the conviction is automatic, with no separate showing of harm required. It’s not clear why the court of appeals is reluctant to say that prejudice is no more required on an IAC claim than on “direct” challenge to structural error. Perhaps paying lip service to prejudice is thought to inhibit further review. But that is rank speculation. All that might be said with any certainty is that the court’s reluctance is manifest: a different panel similarly held that IAC-prejudice is required for a different type of error (right to public trial) that with preserved objection would have resulted in automatic reversal, State v. Dhosi J. Ndina, 2007 WI App 268, ¶¶18-21, affirmed on other grounds, 2009 WI 21. And in that case, the court’s ensuing analysis (which resulted in denial of relief) had more teeth than it does here. The only proper conclusion to come to is that in the context of structural error, IAC-prejudice seems to be relatively uncharted terrain. (For that matter, see Larson v. Palmateer, 9th Cir No. 04-35465, 2/13/08, for idea that Deck-error is subject to harmless error analysis).

Effective Assistance – Prejudice – Public Trial

State v. Dhosi J. Ndina, 2007 WI App 268, affirmed on other grounds, 2009 WI 21

For Ndina: Richard L. Kaiser

Issue/Holding: ¶18      … Ndina has failed to prove he was prejudiced by counsel’s failure to object to the removal of his family from the courtroom for part of the trial. ¶19      Had counsel objected and raised the public trial challenge, there is no reason to believe that it would have changed the circumstances such that reasonable doubt would have been created in the minds of the jurors. The exclusion order was made outside the presence of the jury. Thus, there is no evidence that the jury even knew that Ndina’s family had been removed from the proceedings. Ndina does not present anything to show that having the disruptive family members in the courtroom would have had any effect on the verdict. As it turned out, the jury convicted Ndina on a lesser-included offense rather than the greater offense with which he was charged. Based on the record created by the trial court, the family members were removed from the courtroom only after repeatedly disrupting the ability of the court to properly conduct the trial. By eliminating the disturbances, the trial court helped insure that the jury returned a careful and reliable verdict. … ¶21      The key distinction as to the issue in this case is that when a defendant makes a timely objection at trial raising a public trial challenge, a defendant receives the benefit of automatic reversal without having to prove prejudice if the public trial violation is proven. Smith v. Hollins, 448 F.3d 533, 536-37 (2d Cir. 2006); however, if a defendant fails to make a timely objection at trial on a public trial challenge, then the issue can only be reviewed in the context of ineffective assistance and prejudice must be established. Purvis v. Crosby, 451 F.3d 734, 738-39 (11th Cir.), cert. denied, 127 S. Ct. 587 (2006). The court distinguishes State v. David L. Vanness, 2007 WI App 195, as a case barring access to all members of the public, while the more limited bar here was “a logical consequence for the impropriety of the family members who could not behave in the courtroom.” ¶20 n. 1; ¶23 n. 2. Note that the affirmance on other grounds arguably leaves the court of appeals' IAC holding viable.

Prejudice

State v. Thomas S. Mayo, 2007 WI 78, affirming unpublished opinion

For Mayo: Keith A. Findley, UW Law School

Issue/Holding: ¶64      On balance, we are satisfied, viewing the deficiencies of defense counsel and the incidents of prosecutorial misconduct individually and for the cumulative effect, [8] that Mayo has not established that there was a reasonable probability that the result would have been different. Strickland, 466 U.S. at 694. In order to show prejudice under Strickland, the defendant must show "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. See also State v. Gordon, 2003 WI 69, ¶22, 262 Wis. 2d 380, 663 N.W.2d 765. Looking at the entire trial in light of the Strickland formulation of prejudice, Mayo's trial was not so infected with error as to amount to a deprivation of his right to a fair trial. The result reached by the jury was reliable. The jurors had the opportunity to listen to the testimony of Price and Mayo, and to determine the credibility of each of them. Certainly, the focus in this case was on the testimony of those two witnesses and, obviously, the jury believed Price and rejected the testimony of Mayo. We hold, therefore, that Mayo has not shown that defense counsel's deficient performance was prejudicial, so as to warrant a new trial. McDowell, 272 Wis. 2d 488, ¶49.  [8] Federal cases have not limited the cumulative error test to the errors of defense counsel; rather, they have applied or expressed a willingness to apply the cumulative error test to all types of errors. See, e.g., Alvarez v. Boyd, 225 F.3d 820, 824 (7th Cir. 2000); U.S. v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990); U.S. v. Wallace, 848 F.2d 1464, 1472 (9th Cir. 1988). This court relied on federal cases in adopting the cumulative error analysis in State v. Thiel, 2003 WI 111, ¶¶59, 60, 62, 81, 264 Wis. 2d 571, 665 N.W.2d 305.

Prejudice – Failure to Produce Corroboration for Alibi

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

For Cooks: Joseph E. Redding

Issue/Holding: Trial counsel’s deficient failure to adduce corroboration for the chosen defense of alibi was deficient, following analytical lead provided by Washington v. Smith, 219 F.3d 620 (7th Cir. 2000): ¶57      The court pointed out that the other potential alibi witnesses were with Washington around the time the robbery occurred.  Id. at 634.  The Seventh Circuit court rejected this court’s conclusion that the impact of three more witnesses corroborating Washington’s alibi would have been cumulative.  Id.   According to the Seventh Circuit, the additional testimony of the alibi witnesses—none of whom could have been impeached as having a criminal record—would have added a great deal of substance and credibility to Washington’s alibi.  Id.  “Rather than one direct alibi witness with a criminal record, Washington could have had three potentially more credible witnesses, all of whom would have supported his claim that he was [elsewhere] when the [tavern] was robbed.”  Id. ¶58      Applying this standard, we look to both the State’s and Cooks’ cases at trial.  As in Washington, the State’s case against Cooks had many weaknesses and thus was readily susceptible to being affected by errors.  Other than the authorities who testified, each of the State’s witnesses had criminal convictions.  Further, many of them had at some point recanted their identifications of Cooks as one of the robbers. … ¶62      Here, as in Washington, Cooks’ defense was crippled. The theory of the defense was misidentification, which rested both on the weaknesses of the State’s case and on Cooks’ assertion that he was at his mother’s home when the robbery took place. Although Cooks testified to his whereabouts on the night of the robbery, Cooks admitted having eight criminal convictions and his own testimony went uncorroborated. Without the corroborating testimony of the alibi witnesses, Cooks’ own testimony has the appearance of being self-serving. As this result clearly suggests, it doesn’t hurt to expand your research efforts beyond state IAC cases to federal habeas cases. Note that Cooks indeed invoked Washington but that the State—as the court of appeals pointedly and somewhat derisively notes, ¶51—“fails to even address Washington in its response.” Note, too, another similar 7th Circuit habeas case, released the very day before this one and thus too recent to be mentioned by it, Warren Goodman v. Bertrand, 7th Cir No. 04-2946, 10/31/06 (granting relief on facts it describes as “strikingly similar” to Washington). It’s enough to say here that Goodman reinforces the idea that “the pattern of counsel’s deficiencies must be considered in their totality,” and not merely as an “evaluating (of) each error in isolation. … In weighing each error individually, the Wisconsin Court of Appeals overlooked a pattern of ineffective assistance and unreasonably applied Strickland.” Not that Wisconsin courts haven’t reached that very conclusion, see, e.g, State v. Quentrell E. Williams, 2006 WI App 212, ¶34 (“When multiple errors in counsel’s representation are alleged by the defendant, we decide ineffective assistance of counsel based on the cumulative effect of those errors.”).

Prejudice – – Measured by Cumulative Effect of Multiple Alleged Deficiencies

State v. Quentrell E. Williams, 2006 WI App 212

For Williams: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: ¶34      When multiple errors in counsel’s representation are alleged by the defendant, we decide ineffective assistance of counsel based on the cumulative effect of those errors. State v. Zimmerman, 2003 WI App 196, ¶¶34, 47-49, 266 Wis. 2d 1003, 669 N.W.2d 762. As we have explained, none of the errors alleged by Williams raises a reasonable probability that the outcome of his trial would have been different absent that error. Because we have concluded Williams raised and argued the defense he claims his attorney overlooked, the testimony evidence Williams claims his attorney should have introduced would not support Williams’s contention that his actions were not reckless or were privileged as reasonable parental discipline, and any mischaracterization of testimony by the prosecution was inconsequential, we conclude that Williams was not denied effective assistance of counsel by the cumulative effect of those errors. Also see Warren Goodman v. Bertrand, 7th Cir No. 04-3946, 10/31/06 ("However, the cumulative effect of trial counsel’s errors sufficiently undermines our confidence in the outcome of the proceeding. Rather than evaluating each error in isolation, as did the Wisconsin Court of Appeals, the pattern of counsel’s deficiencies must be considered in their totality.").

Prejudice – Failure to Anticipate Lesser Included Offense

State v. Quentrell E. Williams, 2006 WI App 212

For Williams: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: Counsel’s failure to anticipate jury consideration of lesser included offense was not prejudicial, given that counsel raised an affirmative defense that encompassed that offense, eliciting testimony and obtaining an instruction on that defense, ¶¶20-22.

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: Counsel’s asking a police witness if he thought the complainant was truthful—eliciting a response that in the witness’s opinion she didn’t “make up any kind of statement”—was not prejudicial: ¶41      Officer Sterling’s response to the question about which Rodriguez complains both: (1) repeated testimony that was already before the jury (her emotional situation and the time that elapsed from when the police department received the 911-call to Sterling’s talk with LaMoore), and (2) the rest of Sterling’s response, if not already before the jury, was either something the jurors could reasonably infer from the evidence (that LaMoore was afraid of Rodriguez) or was within their common experience (that persons under great stress caused by something generally do not have the cognitive ability to fabricate). Indeed, as we have already seen, this is the underpinning to the “excited utterance” exception to the rule against hearsay, and is why it is “firmly rooted” in our jurisprudence. Accordingly, Rodriguez has not carried his burden to show that he was prejudiced by his trial lawyer’s questions to Officer Sterling.

Ineffective Assistance – Prejudice – Suppression Motion

State v. David J. Roberson, 2006 WI 80, affirming 2005 WI App 195

For Roberson: Richard D. Martin, SPD, Madison Appellate

Issue/Holding: ¶35      Ordinarily, an analysis of the admissibility of an in-court identification shifts to the State the heavy burden of establishing by clear and convincing evidence that the in-court identification was not tainted by the illegal activity. [14] Walker, 154 Wis.  2d at 186; Powell, 86 Wis.  2d at 65; Holmes v. State, 59 Wis. See Anderson, ___ Wis.  2d ___, ¶48. In an ineffective assistance of counsel claim, Strickland "places the burden on the defendant to affirmatively prove prejudice." Johnson, 153 Wis.  2d at 129. Compare Chapman v. California, 386 Strickland, 466 U.S. at 694. See also State v. Harvey, 2002 WI 93, ¶41, 254 Wis.  2d 442, 647 N.W.2d 189 ("[O]rdinarily, the one who benefits from the error must prove harmlessness, but in an ineffective assistance of counsel claim, the defendant must prove prejudice.") (citation omitted). In determining whether the defendant has met his or her burden of proving prejudice, the reviewing courts are required to consider the totality of the evidence before the trier of fact.  Johnson, 153 Wis.  2d at 129-30. Not as clear a statement as one might like. Typically, the prejudice component of an IAC claim for failing to file a suppression motion requires that the defendant show that the motion would have been meritorious. Dennis Thompson, Jr. v. Battaglia, 7th Cir. No. 04-3110, 8/14/06 ("when a habeas corpus petitioner such as Thompson claims that his lawyer’s failure to make a motion to suppress was ineffective, he must “prove the motion [would have been] meritorious.” United States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005)"). The ¶ quoted above certainly hints broadly in that direction but doesn’t explicitly say so.

Prejudice -- Structural Error

N.B.: The decision summarized immediately below was subequently reversed, albeit on a technical procedural ground (review of the merits not cognizable on habeas); although reversal eliminates the precedential effect of the opinion it doesn't eliminate potential viability of its reasoning: Wright v. Joseph L. Van Patten, USSC No. 07-212, 1/7/08.

Joseph Van Patten v. Deppisch, 7th Cir. No. 04-1276, 1/24/06, granting habeas relief in unpublished opinion of Wis COA

For Van Patten: Linda T. Coberly

Issue: Whether a no contest plea was properly entered where the defendant appeared in person but his attorney appeared by telephone.

Holding: … What does the law require when a client on the other end of a telephone hookup with his lawyer is standing before a judge, about to relinquish a bevy of important constitutional rights? … … In this case, although the transcript shows that the state trial judge did his best to conduct the plea colloquy with care, the arrangements made it impossible for Van Patten to have the “assistance of counsel” in anything but the most perfunctory sense. Van Patten stood alone before judge and prosecutor. Unlike the usual defendant in a criminal case, he could not turn to his lawyer for private legal advice, to clear up misunderstandings, to seek reassurance, or to discuss any last-minute misgivings. Listening over an audio connection, counsel could not detect and respond to cues from his client’s demeanor that might have indicated he did not understand certain aspects of the proceeding, or that he was changing his mind. If Van Patten wished to converse with his attorney, anyone else in the courtroom could effectively eavesdrop. (We assume the district attorney would balk if he were expected to conduct last-minute consultations with his staff via speakerphone in open court, “on the record,” with the defendant taking in every word.) … Getting the attorney on speakerphone may have been better than nothing. But the Sixth Amendment requires more than “formal compliance” with its guarantees. Cronic, 466 U.S. at 654 (citation omitted). … … Physical presence is necessary not only so that counsel can keep an eye on the client and the prosecutor, but so the court can keep an eye on counsel. Even if a private line had been arranged for Van Patten to speak with his attorney, we would regard long-distance lawyering in critical-stage proceedings as inadequate …. … … Because the physical absence of counsel from a hearing where a defendant gives up his most valuable constitutional rights and admits his guilt to a serious charge is a structural defect, the district court erred in finding that the error could be analyzed under a harmless standard. The state court opinion, which probably should have been published but wasn’t held that remote appearance by counsel at a guilty plea proceeding violates § 967.08, but was harmless error. The narrow question, then, is whether such a violation is necessarily harmful, and the 7th Circuit now says it is. Can the decision be extended to other proceedings authorized for remote appearance by the statute? You wouldn't think so, but you will have to draw your own conclusions for now. As for the defendant being constrained to appear remotely: the concerns expressed by the court with regard to counsel's absence from the defendant's side apply equally when it is counsel who is in court and the defendant on the other end of a fiber optics line.

Prejudice: Deficient Failure to Impeach Key Witnesses

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

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

Issue/Holding: ¶34 In summary, all of the evidence the State cites was, at best, circumstantial and tended to undermine the defendant’s credibility. If anything, the cited evidence underscores the detriment to the defendant of her counsel’s failure to present jurors with evidence establishing John’s and Susan’s possible motives for fabricating an assault. The State acknowledged in its closing argument (see footnote 3) that the entire case came down to a credibility contest between the defendant on one side and John and Susan on the other. In order to acquit the defendant of the sexual assault, however, jurors did not have to accept all of the defendant’s testimony, they only needed to arrive at a reasonable doubt regarding John’s and Susan’s testimony. Crucial evidence tending to undermine the credibility of the two key State witnesses was never presented to the jury.

Prejudice -- References to “Lifestyle”

State v. Peter A. Fonte, 2005 WI 77, reversing unpublished decision

For Fonte: Martha A. Askins, SPD, Madison Appellate

Issue/Holding: Defendant’s status as a “Dead Head,” and penchant for attending concerts, was not prejudicial, ¶29.

Prejudice: 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: ¶25. Because we determined that Jimmie's counsel performed in a deficient manner, we now must address whether his counsel's deficient performance prejudiced his defense. The central issue for the jury in the perjury case was one of credibility-whether to believe Jimmie's story that he told the truth while he was on the stand at the sexual assault trial. Although Swierenga did not testify that Jimmie lied during the sexual assault trial, he did testify about the process he used with sex offenders to help them go from denial to responsibility. He testified that it was his practice to inform defendants, such as Jimmie, that it would be to their benefit to tell the truth and show remorse at the sentencing stage because it could potentially mitigate the sentence they received. His testimony demonstrated that he walked Jimmie through this process and saw Jimmie progress from blaming the victim to accepting responsibility for the crime. In light of Swierenga's testimony, the impact of Geske's testimony-which only served to confirm that Jimmie changed his story during the sentencing phase-on the jury's credibility determination was minimal. Our confidence in the outcome of the trial, therefore, is not undermined by the failure of Jimmie's counsel to object to Geske's testimony. We reject Jimmie's ineffective assistance of counsel claim as it pertains to Geske's testimony. Determinations of prejudice tend to be fact-specific, of course. One thing leaps out, though: the casually dismissive treatment of Geske’s testimony as only confirming the perjury. Well, isn’t that exactly what makes the testimony prejudicial? Jimmie, after all, disputed the perjury (he did not lie at trial, he said, but at his allocution, and only then after being convinced that this “admission” would mitigate his sentence). Testimony that was admitted only because of deficient performance confirmed guilt. That the court characterizes the issue in terms virtually compelling a conclusion of prejudice as support for no prejudice surely says something. More baffling still, the court’s analysis simply doesn’t come to grips with Jimmie’s specific arguments, which had to do with the idea that the (inadmissible) PSR testimony appeared more detached and informed by a good deal of expertise, hence would be taken by the jury as credible. The (admissible) D-PSR testimony, on the other hand, actually “was consistent with … defense at the perjury trial” – or so Jimmie’s brief argued, though you won’t get any sense of that from the opinion itself. Add the court’s professed concern with but refusal to do anything about prosecutorial abuse, ¶¶26-27, and you have to wonder just what’s going on. Reversal on the merits would have been readily justifiable and would have sent an appropriate deterrent message. (It might be worth bringing up another decision involving virtually the same panel, where the court wagged its finger at the parties, said that it could almost envision granting relief, but then refused to find prejudice, State v. Fairly Earls, 00-2303, unpublished decision, ¶7 (“The State must heed the directives of these cases and be very careful in the questions it poses to witnesses, or it risks reversal”) – leaving the dirty work for the federal courts, Fairly W. Earls v. McCaughtry, 7th Cir. No. 03-2364, 8/16/04 (concluding that state court of appeals’ refusal to find prejudice was unreasonable)

Prejudice – Batson Claim

State v. George Melvin Taylor , 2004 WI App 81, PFR filed 4/13/04 For Taylor: Ellen Henak, SPD, Milwaukee Appellate Issue/Holding: ¶16. As has been noted by several courts when faced with ineffective-assistance-of-counsel claims such as Taylor's, it would fly in the face of the premise of Batson to require a defendant to show that the outcome of the trial would have been different if the composition of the jury, in regard to race or gender, had been altered. See, e.g., Davidson v. Gengler, 852 F. Supp. 782, 786-87 (W.D. Wis. 1994); Yelder, 575 So. 2d at 138-39. Thus, it seems that instead of determining whether the outcome of the trial was unreliable or would have been different, the proper determination should be whether the jury selection would have resulted differently. … ¶17. … Thus, in order to show prejudice, Taylor must establish that had trial counsel made the Batson objection, there is a "reasonable probability" that it would have been sustained and the trial court would have taken the appropriate curative action.

Prejudice

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

>For Guerard: Joseph L. Sommers

Issue/Holding: Counsel’s failure to use against-hearsay statements which exculpated the defendant because they were somewhat inconsistent with the victim’s testimony was objectively unreasonable: ¶49 Whether the prejudice is viewed as a different result at trial or a lesser sentence, we conclude that prejudice under Strickland has been established. Despite the strength of the victim's testimony and the existence of some inconsistency between her testimony and Daniel's confessions, the failure to put before the jury Daniel's hearsay statements inculpating himself and exculpating Guerard creates a reasonable probability of a different result at trial. The jury would have had to determine the weight and credibility to assign to Daniel's confessions, and might have convicted Guerard anyway. But the failure to introduce Daniel's admissible confessions exculpating Guerard undermines our confidence in this verdict. There is a reasonable probability that the jury would have viewed Daniel's hearsay confessions as creating a reasonable doubt about Guerard's involvement as the perpetrator of these crimes. ¶50. We will not comment here on the merits of the State's alternate theory that Guerard was along for the ride but did not enter the Borchelt home, and therefore likely would be convicted on retrial as an aider and abettor but not as a direct perpetrator. We note only that the State concedes that under this theory, Guerard probably would receive a shorter sentence due to the reduced degree of culpability; in that sense, there is prejudice. See Glover v. United States, 531 U.S. 198, 203 (2001)("[O]ur jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance.") Guerard has established both the deficient performance and prejudice aspects of his claim of ineffective assistance of counsel. We therefore reverse and remand for a new trial

Prejudice -- Deficient Performance Necessary for Consideration in Calculus for Prejudice State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04 For Arredondo: James A. Rebholz Issue/Holding: ¶49 n. 4 Arredondo also argues that he was prejudiced by the aggregate of his trial attorney's alleged errors. As noted, Arredondo's ineffective-assistance claims fail on the merits. That ends our inquiry. See State v. Thiel, 2003 WI 111, ¶61, 264 Wis. 2d 571, 606, 665 N.W.2d 305, 322-323 ("each act or omission must fall below an objective standard of reasonableness ... in order to be included in the calculus for prejudice").

Prejudice -- Closing Argument -- Mischaracterizing Theory of Defense as “The Police Are Lying”

State v. Steven T. Smith, 2003 WI App 234

For Smith: Mark S. Rosen

Issue/Holding: Failure to object to prosecutor’s closing argument assertion that characterized the theory of defense as “the police are lying” was, given the closeness of the case, prejudicial: ¶12. During closing argument, the State proposed the following to the jury: See, this argument -- While defense attorneys try and say, well, we're not saying the police are lying; what else are they saying? There's no other reasonable explanation, and it kind of frustrates me knowing and working in this field and knowing these officers; and you know them now too. You know them. They work hard. They do a tough job. They come in here to testify a lot of times. They work long, long hours. You weigh their testimony against the defendant's. … ¶19. In the case before us, because of certain evidentiary deficiencies and inconsistencies, the pendulum of fairness hung in equipoise. … ¶23. The line between permissible and impermissible final argument is not easy to follow and is charted by the peculiar circumstances of each trial. Whether the prosecutor's conduct during closing argument affected the fairness of the trial is determined by viewing the statements in the context of the total trial. State v. Wolff, 171 Wis. 2d 161, 167-68, 491 N.W.2d 498 (Ct. App. 1992). The line of demarcation to which we refer "is thus drawn where the prosecutor goes beyond reasoning from the evidence to a conclusion of guilt and instead suggests that the jury arrive at a verdict by considering factors other than the evidence." State v. Draize, 88 Wis. 2d 445, 454, 276 N.W.2d 784 (1979). "Argument on matters not in evidence is improper." State v. Albright, 98 Wis. 2d 663, 676, 298 N.W.2d 196 (Ct. App. 1980). ¶24. In close cases, a prosecutor must be sensitive to the evidentiary hand that he or she has been dealt. When arguing by inference, special care must be taken that there exists an evidentiary basis, however slight, for the logical conclusion he or she suggests in the closing argument. Artful subtleties, ill-cast and expressed, may be occasion for error. A prosecutor's interest as a representative of the state is "not [to] win a case, but [to see] that justice shall be done." Viereck v. United States, 318 U.S. 236, 248 (1943). ¶25. In this close case of evaluating credibility, we cannot ignore the prosecutor's self-imposed frustration at his own proposed suggestion that testifying police officers may have lied. This argument was made not in rebuttal, but in the State's opening final argument. There is, however, no basis in the record to assume the suggestion that any police witness lied. Nor is there any evidentiary basis to claim such an argument was invited. Smith's defense was mistaken identity, lack of physical evidence, and failure to meet the burden of proof. Once the prosecutor's rhetorical straw man was created, however, it had to be eliminated. How did the prosecutor accomplish that? With the challenged closing argument: "[I know] these officers; and you know them now too. You know them. They work hard. They do a tough job. They come in here to testify a lot of times. They work long, long hours. You weigh their testimony against the defendant's." ¶26. It is undisputed that there is no evidentiary basis for the officers' work habits or job demands, or the basis for the prosecutor's knowledge of them. This portion of the prosecutor's closing argument unfairly referenced matters not in the record and vouched for the credibility of the police witnesses. In the context of the total trial, we conclude that the quoted portion of the prosecutor's final argument placed the reliability of the proceedings in doubt to the extent that the fairness of the trial has been jeopardized. We conclude that Smith was prejudiced. Because the trial court did not conduct an evidentiary hearing to address the alleged deficiency of trial counsel for failure to object to the final argument or move for a mistrial, we remand for an evidentiary hearing for this determination. The case is quoted at length because, among other things, it’s so rare that closing argument is cause for reversal, let alone in the context of ineffective assistance. The principal case, Darden v. Wainwright, 477 U.S. 168 (1986), holds that even universal condemnation of the prosecutor’s rhetoric (in that case, referring to Darden as “an animal”) isn’t enough to show denial of a fair trial. But Smith seems to take a different approach – not so much that police lying vs. defendant’s credibility represents an appeal to juror emotions, but that the defense never claimed the police were lying, and therefore the prosecutor’s characterization of the defense claim wasn’t based on the evidence. The problem, that is, may be less that the prosecutor appealed to juror sentiment to support the police no matter what, and more that the prosecutor mischaracterized the defense position. It’s probably wrong, then, to see this holding as limiting prosecutorial rhetorical flourishes; wrong, in particular, to extrapolate to a generalized ban on the term “lying.” In this regard, see, e.g., State v. Johnson, 153 Wis. 2d 121, 132-33, 449 N.W.2d 845 (1990), on reconsideration (approving prosecutor’s description of defendant as a “liar”); and Kappos v. Duckworth, 54 F.3d 365 (7th Cir. 1995) (referring to defendant as “artful liar” didn’t violate constitution). Nor, for that matter, should this holding be confused as retreat from the evidentiary principle that a defendant may be cross-examined as to whether other witnesses are “lying.” State v. Andre Bolden, 2003 WI App 155, ¶11 [a dubious result, to be sure, but no less binding for that. Note, however, that that issue is pending on supreme court review, in 02-2793-CR, State v. Victor K. Johnson, decision below unpublished. The point is that, unless and until Bolden is overruled, the prosecutor may be able to cross-examine the defendant as to whether other witnesses are “lying,” and then argue to the jury that that is indeed the defense theory – which could well work a meaningful distinction from Smith]. The other interesting aspect is that the credibility issue doesn’t really seem all that close. Draw your own conclusions, but a holding of no prejudice probably wouldn’t have been controversial. In other words, the result may represent a sense that prosecutorial appeal to raw emotion is an increasing problem and must be stopped before getting out of hand. If so, the court certainly found a clever way to do that, because, as noted, the holding isn’t really anchored in notions of inflammatory appeals. See also Hodge v. Hurley, 6th Cir No. 03-3166 (prejducial failure to object to "egregiously improper closing argument," during which "the prosecutor commented on the credibility of witnesses, misrepresented the facts of the case, made derogatory remarks about the defendant, and generally tried to convince the jury to convict on the basis of bad character").

Prejudice -- Coercion Defense, § 939.46(1)

State v. Jeffrey A. Keeran, 2004 WI App 4, PFR filed 1/5/04

For Keeran: Joseph L. Sommers

Issue/Holding:Trial counsel’s failure to adduce evidence, in support of a theory of defense of coercion, that Barreau (who threatened to hurt Keeran unless he participated in the charged offenses) “was a violent psychopath,” and had a relationship with Keeran akin to “master and slave” was not prejudicial because this evidence did not satisfy the coercion requirement that participation was the exclusive means of avoiding imminent death or great bodily harm: ¶21. Keeran could not have successfully defended himself at trial using a coercion defense by producing additional evidence showing that Keeran reasonably believed that if he did not comply with Barreau's orders Barreau would attempt to cause Keeran great bodily harm or worse. Keeran had to produce evidence showing that cooperation with Barreau's criminal endeavors was Keeran's only means of avoiding imminent death or great bodily harm. Because Keeran's testimony did not show that he had no other means of preventing imminent harm, a reasonable fear that Barreau would attempt to harm Keeran was no defense.

Prejudice -- Cumulative Effect of Discrete Deficiencies

State v. James R. Thiel, 2003 WI 111, reversing unpublished opinion of court of appeals

For Thiel: Bruce J. Rosen

Issue/Holding: ¶59. This court has never specifically addressed the issue of how to calculate prejudice arising from multiple deficiencies by trial counsel when the specific errors, evaluated individually, do not satisfy the prejudice standard in Strickland. Several circuits of the United States Court of Appeals have addressed the appropriateness of looking at the cumulative effect of multiple instances of deficient performance by counsel when assessing prejudice. The consensus appears to hold that when a court finds numerous deficiencies in a counsel's performance, it need not rely on the prejudicial effect of a single deficiency if, taken together, the deficiencies establish cumulative prejudice. See Washington v. Smith, 219 F.3d 620, 634-35 (7th Cir. 2000) ("Evaluated individually, these errors may or may not have been prejudicial to Washington, but we must assess 'the totality of the omitted evidence' under Strickland, rather than the individual errors."); Harris v. Wood, 64 F.3d 1432, 1439 (9th Cir. 1995). Although some circuits have decided to the contrary, we adopt the reasoning of the courts that have held that prejudice should be assessed based on the cumulative effect of counsel's deficiencies. ¶60. This approach is sensible and in accord with Strickland. See Gonzales v. McKune, 247 F.3d 1066, 1078 n.4 (10th Cir. 2001) ("Strickland . . . makes it clear that all acts of inadequate performance may be cumulated in order to conduct the prejudice prong."). Just as a single mistake in an attorney's otherwise commendable representation may be so serious as to impugn the integrity of a proceeding, the cumulative effect of several deficient acts or omissions may, in certain instances, also undermine a reviewing court's confidence in the outcome of a proceeding. Therefore, in determining whether a defendant has been prejudiced as a result of counsel's deficient performance, we may aggregate the effects of multiple incidents of deficient performance in determining whether the overall impact of the deficiencies satisfied the standard for a new trial under Strickland. While the court thus seems to have clearly resolved the issue, if it happens to come up again, resort might be taken to the approach in withheld-exculpatory evidence cases, which are relevant because that is where the IAC test for prejudice originates, see State v. Pitsch, 124 Wis.2d 628, 641 n. 7, 369 N.W.2d 711 (1985). On the test for materiality of withheld exculpatory evidence see, e.g., Castleberry v. Brigano, 2003 FED App 0398P, No. 02-3433 (6th Cir. 11/12/03) (state court's application of "item-by-item determination of materiality" was unreasonable application of controlling Supreme Court caselaw: The Court in Kyles specified that the materiality of withhled evidence may be detremined only by evaluating the evidence collectively.").

Prejudice -- Deficient Performance Under Favorable but Subsequently Overruled Case Law -- Tested by Law at Time of Appeal not Trial 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: Counsel’s ignorance of the holding in State v. Wallerman, 203 Wis. 2d 158, 552 N.W.2d 128 (Ct. App. 1996) (defendant may foreclose proof of other-acts evidence by stipulating to existence of element) non-prejudicial in light of subsequent overruling in State v. Veach, 2002 WI 110, 255 Wis. 2d 390, 648 N.W.2d 447: ¶11 We have reviewed Silva’s claim concerning his attorney’s ignorance of the possibility of a Wallerman stipulation in the context of an ineffective assistance of counsel claim and we conclude that his attorney’s lack of knowledge of the Wallerman holding constituted deficient performance. However, we are obligated to review ineffective assistance of counsel claims based on the law in place at the time of the appeal, and the Wallerman holding has been overturned; thus, we are compelled to conclude that Silva suffered no prejudice. See Lockhart v. Fretwell, 506 U.S. 364, 372-73 (1993). But see Young v. Dretke, 5th Cir. No. 02-50341, 1/9/04 (under established Supreme Court precedent, prejudice is established by reference to law at time of deficient performance, not to current law; therefore, counsel's deficient failure to seek dismissal was prejudicial where law at time of trial would have required dismissal with prejudice though that law had been amended by time of appeal), distinguishing between rights declared by judicial fiat and by statute: Fretwell dealt with a right declared by a judicial decision, a right which had achieved no recognition as a final statement of the law. Restated, the rule relied on by Fretwell was proclaimed by a single judicial decision and was not finally settled as a binding legal principle. The case, and the rule it announced, had, in fact, been overruled by the time Fretwell raised the issue in habeas. In short, Fretwell had no legal “entitlement” to a rule that had never “vested” as a final statement of the law. Implicit in this concept is that finality of a federal constitutional rule is never established until the Supreme Court has spoken. Statutes, as “final” statements of the law, are distinguishable. Once a statute is duly enacted by the legislature, it is a “final”, if not necessarily permanent, statement of the law on that particular point. Although it may be attacked in collateral proceedings as unconstitutional, it has achieved recognition as a final statement of the law by the lawgiver, that is, the legislature and, indeed, the state, and the statute confers benefits that the law recognizes and protects. For example, a case that has been overruled is not authoritative in all pending and subsequent litigation, whereas a duly-enacted statute conferring procedural or substantive rights entitles its beneficiaries to those rights for the period in which it is validly operating. Unlike the benefit sought in Fretwell, a state statute is not an error, misapprehension, or “right the law simply does not recognize.” Nix v. Whiteside, 475 U.S. 157, 186 (1986) (Blackmun, J., concurring). Thus Young was, at the time of his arrest, indictment and trial, legally entitled to the final “vested” rights conferred upon him by the duly enacted Texas statutes; Fretwell, on the other hand, was not lawfully entitled to claim the benefit of a judicial rule that had not become finally authoritative. This distinction doesn't cast doubt on Silva (and may indeed fortify it), which deal with judge-made rather than legislative law, but is probably worth keeping mind.

Prejudice -- Deficient Handling of Defendant's Possibly Perjurious Testimony State v. Derryle S. McDowell, 2003 WI App 168, affirmed, 2004 WI 70; habeas relief denied, 7th Cir No. 06-3288, 8/15/07 For McDowell: Christopher J. Cherella Amici: Keith A. Findley, John T. Savee, John A. Pray, Frank Remington Center & WACDL Issue/Holding: Counsel’s deficient performance in examining the defendant via narrative rather than question-and-answer neither supports a presumption of prejudice, ¶71 n. 23, nor was prejudicial under the circumstances, given the overwhelming strength of the state’s case and the preposterous nature of the defense. ¶68.

Prejudice -- Failure to Impeach, With Prior Convictions

State v. Antwan D. Manuel, affirming 2004 WI App 111

For Manuel: Steven D. Phillips, SPD, Madison Appellate

Issue/Holding: Failure to impeach a hearsay declarant with his prior convictions (see § 908.06) was not prejudicial, where the jury heard that the declarant was on probation and therefore would have known that he had indeed been convicted of a crime; and, “‘the exact number of convictions might have incrementally weakened the credibility of the witnesses, [but] this decrease is not enough to establish a reasonable probability that the jury would have reached a different verdict,’” ¶74, quoting State v. Trawitzki, 2001 WI 77, ¶44, 244 Wis. 2d 523, 628 N.W.2d 801.

Prejudice -- Deficient Failure to Impeach, Where Credibility is the Key Issue

State v. James R. Thiel, 2003 WI 111, reversing unpublished opinion of court of appeals

For Thiel: Bruce J. Rosen

Issue/Holding: Where the complainant’s credibility was the critical issue at trial, counsel’s the cumulative impact of counsel’s failure to impeach her in several discrete respects was prejudicial, though individually viewed each would probably not support relief. ¶¶64-73. ¶74. Overall, counsel's objectively unreasonable failures seriously affected his ability to impeach the credibility of the complainant and some of the State's witnesses. It also weakened his ability to protect Thiel's credibility. The cumulative result of these failures was to keep from the jury important, additional discrepancies in JoAnn's account of the alleged encounters as well as discrepancies in her discussions with other persons. … ¶78. The nature of the credibility evidence in this case cannot be characterized as merely cumulative. We find instructive on this matter Washington v. Smith, 219 F.3d 620 (7th Cir. 2000), a decision of the Seventh Circuit Court of Appeals concerning a Wisconsin case that had denied an ineffective assistance of counsel claim largely on grounds that omitted evidence of additional alibi witnesses was merely cumulative. We find the following reasoning particularly relevant to assessing Thiel's claim: The impact of three more witnesses corroborating Washington's alibi would not have been "cumulative" as the Wisconsin Court of Appeals believed. Evidence is cumulative when it "supports a fact established by existing evidence," Black's Law Dictionary 577 (7th ed. 1999), but Washington's whereabouts on the day of the robbery was far from established--it was the issue in the case. The fact that [another witness] had already testified to facts consistent with Washington's alibi did not render additional testimony cumulative. Indeed, the additional testimony . . . would have added a great deal of substance and credibility to Washington's alibi. Id. at 634. ¶79. As in Washington, the veracity of JoAnn's claims of sexual relations with Thiel was not established to such a degree that additional evidence could not have further undermined her credibility and generated reasonable doubt as to Thiel's guilt. While much of the State's evidence at trial was strong, the evidence of Thiel's guilt was not beyond dispute. Moreover, additional credibility evidence might have affected the number of charges on which Thiel was convicted. We are concerned about underestimating the importance of cumulative credibility evidence in a case that depends so heavily on the credibility of the complainant. We agree with the circuit court that credibility was the issue upon which a reasonable doubt turned. In this case, there was no physical evidence of the alleged sexual encounters, nor did any of the supportive witnesses who testified present evidence regarding their observation, direct or indirect, of the alleged encounters. Rather, the State's witnesses all served to bolster or otherwise credit JoAnn's version of the facts. The unreasonable errors that disabled Thiel's counsel from presenting material, discrediting facts pertinent to JoAnn's account of the alleged encounters shakes our confidence in the result of this proceeding.

Prejudice -- Multiplicity Challenge -- Sexual Assault State v. William Koller, 2001 WI App 253, PFR filed For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate Issue: Whether counsel's failure to raise a multiplicity challenge was ineffective. Holding: ¶53. We agree with Koller that the postconviction testimony of his trial counsel reveals no sound strategic reason for omitting a multiplicity challenge at the close of the State's case. However, regardless of counsel's subjective thought process, his omission was objectively reasonable. ¶54. The flaw in Koller's argument is his assumption that the trial court's assessment of multiplicity at the close of the State's case would have been based only on prior trial testimony. However, as shown above, the State was under no duty to persuade the jury that multiple charging was proper, and the presumed omission of trial testimony showing a new volitional departure was not by itself a problem. This was a matter for the trial court to address if and when it was raised. If a multiplicity challenge had been raised, the trial court could have permitted the State to present additional evidence on the topic. ¶55. Accordingly, in order to show that he was prejudiced by the omitted objection, Koller needed to show that the State would have been unable to present evidence satisfying the trial judge, by a preponderance of the evidence, that the second penis-to-vagina penetration was a new volitional departure. Koller has not made the attempt, and any such effort would be highly speculative. See Erickson, 227 Wis. 2d at 774 (speculation is insufficient to satisfy the prejudice prong of Strickland). In light of Katherine D.'s pretrial statements, it appears the State could have easily met its burden.

Prejudice -- Failure to File Timely 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: ¶19. Penson, however, not only reiterates the constitutional imperatives regarding the right to appellate counsel outlined in Douglas and Anders, it is also instructive on the appropriate remedy when a court disregards those imperatives. In Penson, the Supreme Court rejected the state's argument that the defendant needed to show "prejudice" under Strickland, 466 U.S. 668. In so doing, the Supreme Court stated that "it is important to emphasize that the denial of counsel in this case left petitioner completely without representation during the appellate court's actual decisional process. This is quite different from a case in which it is claimed that counsel's performance was ineffective." Penson, 488 U.S at 88. As such, the denial of counsel in these circumstances gives rise to a "presumption of prejudice," rendering any actual finding of prejudice under Strickland superfluous. Id. at 88-89. Accordingly, we find that Seibert, who clearly indicated his desire to pursue an appeal of the circuit court's order denying his petition for supervised release on the record, is not required to demonstrate prejudice at an evidentiary hearing. While the State urges us to subject Seibert to this procedural hurdle under Strickland, we note that Strickland is applicable only where an individual is represented by counsel. See Jenkins v. Coombe, , 821 F.2d 158, 161 (2d Cir. 1987) (finding Strickland inapplicable where defendant had "no counsel or, at best, nominal counsel to represent his interests on the state appeal"). When the court of appeals independently reviewed the trial record for error in the context of Seibert's habeas proceeding, he was not represented by counsel, in violation of the commands of Douglas and Anders.

Prejudice -- Conceding Guilt

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: ¶30 ... Gordon was not prejudiced. He has not demonstrated a reasonable probability that the result of the proceeding would have been different without the attorney's concession. Strickland, 466 U.S. at 694. After Gordon's testimony, "there was no way in the world that the jury was going to acquit" on the disorderly conduct while armed count. Underwood, 939 F.2d at 474. The closing argument concession did not constitute ineffective assistance of counsel.

Prejudice -- Closing Argument -- Failure to Argue for Acquittal on All Counts

State v. William Koller, 2001 WI App 253, PFR filed

For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate

Issue:Whether counsel's failure to argue for acquittal, coupled with a suggestion in closing argument, that the jury might find the defendant guilty of some but not all counts, was ineffective. Holding: Because of the strength of the evidence, Koller can't meet his burden of showing a reasonable probability that the result would have been different had counsel argued the case differently. ¶¶17-23.

Prejudice -- Where Trial Was to the Court -- Failure to Obtain Expert -- SVP State v. Kenneth Parrish, 2002 WI App 263, PFR filed 11/11/02 For Parrish: Charles B. Vetzner, SPD, Madison Appellate Issue/Holding: The trial court's rejection of respondent's post-commitment proffer of an expert, in support of a claim that trial counsel was ineffective for not securing an expert, is sustained, due in particular to the trial court's conclusion that the proffered expert would not have altered the outcome: "that judge, by virtue of having been the fact finder at trial, is in the best position to consider whether additional information would have altered his or her commitment decision." ¶¶37-42.

Prejudice -- Jury -- Six-Person Panel

State v. Jesse Franklin, Jeffrey A. Huck, 2001 WI 104, 629 N.W.2d 289

For defendants: Richard D. Martin, SPD, Milwaukee Appellate

Issue: "¶10. ... (W)hether the misdemeanants in these consolidated cases were denied the right to effective assistance of counsel when their attorneys failed to object to the six-person jury statute which was found unconstitutional in [State v. Hansford, 219 Wis.2d 226, 580 N.W.2d 171 (1998)]."

Holding: Even if failure to object amounted to deficient performance, the defendants can't show prejudice: "A six-person jury in and of itself is an insufficient basis for us to conclude that the defendants were deprived of a fair trial whose result is reliable." ¶15, citing State v. Huebner, 2000 WI 59, 235 Wis. 2d 486, 611 N.W.2d 727. Nor does this defect fall in the narrowly defined categories in which prejudice is presumed (such as substantial plea bargain breach). ¶¶18-23. "(W)hen not falling within one of the three presumptions enumerated in Strickland, prejudice will only result when the counsel's errors have deprived the defendant of a fair trial whose result is reliable." ¶24. (Note: Clearly, had the error been preserved, reversal would have been automatic without testing for harmless error or impact on the result. Nonetheless, if the defect doesn't fall within one of the "limited circumstances" of presumptive prejudice explicitly recognized by the court -- and this one, the court says, does not -- then the defendant must prove prejudice. ¶25. This is problematic at best. The court simply doesn't explain why the result of the deficiency -- in effect, denial of right to trial by jury as defined by Wisconsin law -- isn't the sort of structural defect for which prejudice is presumed.)

Prejudice -- Jury Selection.

State v. William Nielsen, 2001 WI App 192, PFR filed

For Nielsen: Waring R. Fincke

Issue/Holding: ¶26 ... Nielsen takes issue with trial counsel's general strategy in selecting jurors.... ¶27. We will not second guess trial counsel's selection of trial tactics or strategies in the face of alternatives that he or she has considered. See State v. Felton, 110 Wis. 2d 485, 502-03, 329 N.W.2d 161 (1983). Moreover, we are aware of no legal authority holding counsel deficient where the impaneled jury was impartial, perhaps because where there is no allegation that any of the actual jurors were biased, it would be speculative for a court to conclude that the jury would have been fairer had trial counsel used peremptory strikes differently. See Erickson, 227 Wis. 2d at 774 (where there was no allegation that impaneled jury was biased, court examining whether defendant suffered actual prejudice from deficient number of peremptory strikes could do no better than to speculate on what would have been the result of defendant's trial had the trial court not erred; such speculation is insufficient to prove prejudice).

Prejudice -- Reversal if Error Preserved not Necessarily Prejudicial if Not Preserved -- Jury Selection -- Allotted Peremptory Strikes

State v. James E. Erickson, 227 Wis.2d 758, 596 N.W.2d 749 (1999), on certification.

For Erickson: Glenn L. Cushing, SPD, Madison Appellate.

Issue/Holding: Reversal isn't automatic in context of ineffective assistance of counsel for failure to preserve error that would have automatically led to relief: ¶20 The fact that a preserved error could lead to automatic reversal does not necessarily mean that the same result need be reached when that error is waived. Like the court in Damaske, we decline to ignore Erickson’s waiver. As is normally done in criminal cases, we will analyze the waiver within the ineffective assistance of counsel framework.

Issue/Holding2: Erickson didn't receive his full complement of peremptories and he argues that, as a result, he's entitled to new trial as a matter of law, under State v. Ramos, 211 Wis. 2d 12, 564 N.W.2d 328 (1997); alternatively, he argues ineffective assistance of counsel (because trial counsel didn't object to this situation). The court notes preservation of the issue in Ramos, and declines to overlook waiver, even though a preserved Ramos error results in automatic relief. ¶¶14-20.

The court reviews this issue as ineffective assistance of counsel. Deficient performance isn't reached, the court resolving the issue on absence of prejudice. This case is distinguishable from situations where prejudice is presumed (denial of counsel at critical stage; government interference with representation; conflict of interest), largely given the conceded impartiality of Erickson's jury. ¶¶24-30. Nor is the court inclined to expand Ramos to a situation such as this, where both sides receive the same number of peremptories, albeit fewer than statutorily mandated. Ramos applies where "the defendant uses peremptory strikes to correct a circuit court error, effectively receiving fewer strikes than provided for in the statute and receiving fewer strikes than received by the State. Ramos stands for nothing more and we decline to expand its reach beyond those facts." ¶31. A showing of prejudice is also beyond reach: any benefit Erickson would have received from the additional strikes he was entitled to would have equally inured to the state's benefit (the state having been equally deprived of a full allotment). ¶¶34-36.  Had, though, Erickson preserved the error, would he have been entitled to automatic reversal, i.e., without regard to harmless error analysis? On this point see this 7th Circuit habeas case on the arbitrary elimination of peremptories, Akeem Aki-Khuam v. Davis, 02-1945, 5/8/03: trial procedure which in effect replaced statutorily-provided peremptories with required showing of race-neutral cause violated due process and equal protection: Petitioner had a substantial and legitimate expectation that he would be tried by a jury selected in accordance with Indiana state law and federal constitutional law, including those provisions guaranteeing his right to exercise peremptory challenges. Instead, Petitioner was deprived of his liberty by a jury whose very creation involved a denial of his statutory and constitutional rights. Consequently, Petitioner was denied due process and equal protection of the law in violation of the Fourteenth Amendment. Because the 7th Circuit granted habeas relief without discusison of harmless error it's fair to read this case as supporting automatic reversal.

Go To (COA) Brief

Prejudice -- Partial Acquittal

State v. Murle E. Perkins, 2000 WI App 137, 237 Wis. 2d 313, 614 N.W.2d 25, reversed on other grounds, State v. Perkins, 2001 WI 46 ¶2 n. 2.

For Perkins: William E. Schmaal, SPD, Madison Appellate

Issue: Whether counsel was ineffective for failing to stipulate to prior felony convictions on a charge of felon in possession of firearm.

Holding: The jury's acquittal on the charge (along with acquittal on charge of intoxicated use of firearm) shows that Perkins suffered no prejudice. ¶25.

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Prejudice -- Impeachment of Witness with Priors

State v. Jason J. Trawitzki, 2001 WI 77, affirming State v. Trawitzki, 2000 WI App 205, 238 Wis. 2d 795, 618 N.W.2d 884

For Trawitzki: Donald T. Lang, SPD, Madison Appellate

Issue: Whether counsel was ineffective for failing to impeach state's witnesses with the number of their prior convictions.

Holding: Because the jury knew that these witnesses, who wore prison clothing, were incarcerated, the jury already had reason to question credibility, and the exact number of priors would have added to this doubt only in an incremental way. Moreover, there was strong evidence of guilt independent of these witnesses. Therefore, prejudice can't be shown. ¶¶39-44.

Go To (COA) Brief

Prejudice -- Failure to Impeach Witness with Priors State v. Peter G. Tkacz, 2002 WI App 281, PFR filed 11/14/02 For Tkacz: Mark S. Rosen Issue/Holding: Counsel's failure to impeach a state's witness with the number of her prior convictions wasn't prejudicial, where the jury already had sufficient reason to question the witness's credibility. ¶¶18-25 ( State v. Trawitzki, 2001 WI 77, ¶19, 244 Wis. 2d 523, 628 N.W.2d 801, followed, court stressing that "Trawitzki was not about numbers or how the numbers came to be that way; it was about whether the jury had an adequate basis to question the credibility of the witnesses such that a failure to impeach with the exact number of convictions would likely not have affected the outcome of the case.").

Prejudice -- Failure to Impeach Witness

State v. Nathaniel A. Lindell, 2000 WI App 180, 238 Wis.2d 422, 617 N.W.2d 500, affirmed, State v. Lindell, 2001 WI 108, 629 N.W.2d 223

For Lindell: Russell L. Hanson; Timothy J. Gaskell

Issue: Whether Lindell was denied effective assistance of counsel by failure to pursue impeachment of a state's witness.

Issue/Holding: ¶130. We agree with the court of appeals in its three reasons for finding that the defendant was not prejudiced by Hanson. First, the circuit court found that defense counsel had made a strategic decision not to pursue the admission of this impeachment evidence against Hanson because the element of surprise had been eliminated. Second, Hanson's credibility was of limited value, as he had an extensive record. Third, the evidence of Nathaniel Lindell's guilt was overwhelming.

Prejudice -- Jury Instruction Conceding Element

State v. John Tomlinson, Jr., 2001 WI App 212, affirmed on other grounds, 2002 WI 91

For Tomlinson: John J. Grau

Issue:Whether counsel was ineffective for failing to object to an instruction that conceded the element of a dangerous weapon.

Holding: Given that the defendant used the bat to fracture the homicide victim's skull, the result would not have been different even had counsel objected (i.e., the jury would have found it to be dangerous weapon in any event), hence failure to object was not prejudicial.

Prejudice -- Jury Instruction Incompletely Describing Element -- Rectified by Other, Correct Recitations

State v. Gary L. Gordon, 2002 WI App 53, reversed on other grounds, 2003 WI 69

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

Issue:Whether failure to object to an instruction that, at least in part, incompletely described an element was ineffective assistance.

Holding: Because the instructions, including a written copy provided the jury, repeatedly contained an accurate description of the element, a subsequent misstatement during re-instruction did not mislead the jury. ¶¶21-22.

Prejudice -- Jury Instruction Omitting Element

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: Counsel's failure to object to instructional omission of necessary element does not support rule of per se prejudice. ¶¶33-41. (The holding in State v. Krueger, 2001 WI App 14, 240 Wis. 2d 644, 623 N.W.2d 211 and related cases -- "that a jury instruction lacking an essential element of the crime is fundamentally unfair and establishes prejudice under the Strickland test" -- is deemed to have been overruled by State v. Harvey, 2002 WI 93, 254 Wis. 2d 442, 647 N.W.2d 189. ¶34.)

Prejudice -- Jury Instruction Omitting Element

State v. Arden Krueger, 2001 WI App 14, 240 Wis. 2d 644, 623 N.W.2d 211

For Krueger: Edward J. Hunt

Issue: Whether trial counsel was ineffective in failing to object to an instruction that omitted a necessary element of the offense.

Holding: Because failure to instruct the jury on an essential element is necessarily harmful (¶12), counsel's conceded deficiency in not objecting to an omitted element was prejudicial (¶14). (The charge was sexual contact, and the jury was instructed on "intentional touching," but not, critically, on the purpose of the touching as arousing or degrading, etc.)

-- Postconviction Hearing -- pleading facts sufficient to require Machner hearing

State v. Frederick L. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163 <

For Pharm: Jack E. Schairer

Issue: Whether Pharm pleaded sufficient facts to require a Ch. 980 postcommitment hearing on his claim of ineffective assistance of counsel.

Holding: The trial court's denial of the claim without an evidentiary hearing wasn't error: trial counsel's failure to object to testimony wasn't prejudicial, ¶¶28-30; the assertion that counsel's failure to have "substantially probable" adequately defined "is conclusory," ¶¶31-32.

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Prejudice -- Jury Instruction Omitting Element (PTAC) Alonzo R. Perry v. McCaughtry, 308 F.3d 682 (7th Cir. 2002) For Perry: David D. Cook Issue/Holding Failure to object to omission of ptac liability in lesser offense instruction on felony murder -- where evidence was undisputed that defendant not direct actor -- non-prejudicial: The charges, the attorneys' arguments, Perry's own statements offered into evidence and the jury instructions as a whole all spoke in terms of Perry's culpability on each count as a party to the crime. Thus, it was absolutely clear at trial that Perry was being charged, on all counts, as a party to the crime. (Note: Strong dissent discusses how, despite intimations to contrary in some cases, under Wisconsin law it is jury question whether murder is natural and probable consequence of armed robbery, especially where (as here) defendant had no foreknowledge that robbery victim would be killed.)

Prejudice -- Omitted Witnesses Vonaire T. Washington v. Smith, 219 F.3d 620 (7th Cir. 2000) For Washington: Robert R. Henak Issue/Holding: Impact of errors (from deficient performance) must be evaluated in their totality, not individually. Here, failure to adduce alibi witnesses not cumulative, where omitted witnesses couldn't have been impeached with prior criminal records, and "would have added a great deal of substance and credibility to Washington's alibi.... Rather than one direct alibi witness with a criminal record, Washington could have had three potentially more credible witnesses...."

Prejudice -- Inadmissible Evidence State v. Shelleen B. Joyner, 2002 WI App 250, PFR filed 10/24/02 For Joyner: Margaret A. Maroney, SPD, Madison Appellate Issue/Holding: Where the defense is one of misidentification and absolute denial of involvement, unobjected-to hearsay statements that placed the defendant at the scene were not prejudicial under the test for ineffective assistance of counsel, because the defendant's own pretrial statement also placed her at the scene. ¶11.

Prejudice -- Voir Dire

State v. William Koller, 2001 WI App 253, PFR filed

For Koller: Peter M. Koneazny, SPD, Milwaukee Appellate

Issue: Whether counsel's failure to question prospective jurors sufficiently about their experiences with, and as, assault victims was ineffective.

Holding: ¶14. ... The prejudice issue here is whether his counsel's performance resulted in the seating of a biased juror, not whether a differently composed jury would have acquitted him. See State v. Traylor, 170 Wis. 2d 393, 400-01, 489 N.W.2d 626 (Ct. App. 1992); see also State v. Lindell, 2001 WI 108, ¶81, ___ Wis. 2d ___, 629 N.W.2d 223. ¶15. Accordingly, at the postconviction stage Koller needed to show that if his trial counsel had asked more or better questions, those questions would have resulted in the discovery of bias on the part of at least one of the jurors who actually decided his case. He might have done this by calling suspect jurors as witnesses at his postconviction hearing and asking them the questions he now claims his trial counsel should have asked. There is nothing unusual about this sort of retroactive determination of juror bias. E.g., State v. Delgado, 223 Wis. 2d 270, 588 N.W.2d 1 (1999) (postconviction hearing conducted to determine whether juror who gave an erroneous answer during voir dire was actually biased). However, Koller made no such showing, and his assertion of possible juror bias is mere speculation. See State v. Erickson, 227 Wis. 2d 758, 774, 596 N.W.2d 749 (1999) (speculation is insufficient to satisfy the prejudice prong of Strickland). ¶16. Therefore, based on Koller's failure to show prejudice, we reject his claim that he was denied effective assistance of counsel during voir dire.

Prejudice: Sentencing

State v. Wayne R. Anderson, 222 Wis. 2d 403, 588 N.W.2d 75 (Ct. App. 1998)

For Anderson: Margaret A. Maroney, SPD, Madison Appellate

Issue/Holding: In summary, Anderson disputed the important and relevant portions of the PSI. Having done that, it was trial counsel's further duty to see that the accuracy of those matters was fully resolved by a proper hearing. Counsel did not do this. As a result, the trial court relied on certain of these disputed portions of the PSI without first resolving the accuracy of the allegations. We hold that Anderson was prejudiced by this process. The State further argues that if the trial court relied on inaccurate information in the PSI, such was harmless error because Anderson has not challenged the majority of the PSI which describes similarly despicable child sexual abuse. See State v. Littrup, 164 Wis.2d 120, 132, 473 N.W.2d 164, 168 (Ct. App. 1991) (once defendant demonstrates a due process violation by clear and convincing evidence that he or she was sentenced on the basis of inaccurate information and that this was prejudicial, the burden shifts to the State to demonstrate that the error was harmless). However, on the facts of this case, we reject the State's contention that the unchallenged portions of the PSI demonstrate that any error was harmless. From the trial court's sentencing remarks, it is clear that some of the PSI's allegations which Anderson did challenge influenced the court's assessment of Anderson's character and the gravity of his offenses and its conclusion that a very lengthy sentence was necessary. We are not confident that the PSI did not contribute to the substantial sentence Anderson received. See State v. Dyess, 124 Wis.2d 525, 543, 370 N.W.2d 222, 231-32 (1985) (an error is harmless if there is no reasonable probability that the error contributed to the outcome).

Prejudice -- Plea Bargain

State v. Tony M. Smith, 207 Wis.2d 259, 558 N.W.2d 379 (1997)

For Smith: John Pray, UW Law School

Issue/Holding: ¶38 Instead, we conclude that when a prosecutor agrees to make no sentence recommendation but instead recommends a significant prison term, such conduct is a material and substantial breach of the plea agreement. Such a breach of the State's agreement on sentencing is a “manifest injustice” and always results in prejudice to the defendant. See State v. Bangert, 131 Wis. 2d at 289. The breach of a material and substantial term of a plea agreement by the prosecutor deprives the defendant of a sentencing proceeding whose result is fair and reliable. Our conclusion precludes any need to consider what the sentencing judge would have done if the defense counsel had objected to the breach by the district attorney. Rather, our conclusion is premised on the rule of Santobello, that when a negotiated plea rests in any significant degree on a promise or agreement of the prosecutor, such promise must be fulfilled. 404 U.S. at 262. ... ¶40 We conclude that Smith was automatically prejudiced when the prosecutor materially and substantially breached the plea agreement. Thus, there is no need to remand for a determination of the ineffectiveness of counsel. Instead, we grant Smith's request for a new sentencing hearing conducted in accordance with the terms of the plea agreement.

Prejudice -- Improper Advice as to Rejecting Plea Bargain -- Fair Trial Doesn't Wipe Out Deficient Performance

State v. James A. Fritz, Jr. 212 Wis.2d 284, 569 N.W.2d 48 (Ct. App. 1997)

For Fritz: Wm. J. Tyroler, SPD, Milwaukee Appellate

Issue/Holding: Although the focus of the “prejudice” aspect of Strickland and its progeny is “on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair,” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993), a defendant who claims that he or she would have accepted a plea bargain if the trial lawyer had not been constitutionally deficient is not foreclosed from showing prejudice by the fact that he or she has had a fair trial, United States v. Blaylock, 20 F.3d 1458, 1466 (9th Cir. 1994). The defendant must show, however, that he or she would have in fact accepted the plea bargain but for the lawyer's deficient performance. Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995). Additionally, under the law in most jurisdictions, the defendant must demonstrate that “the plea bargain agreement would have resulted in a lesser sentence.” Ibid. (citing cases). In connection with this latter requirement, however, the Wisconsin Supreme Court has held that a retrospective attempt to analyze whether a defendant would have received a different sentence but for a prosecutor’s unobjected-to breach of a plea bargain is not possible because it “would necessarily involve speculation and calculation,” and testimony by the trial judge who imposed sentence “would be inappropriate, and irrelevant.” State v. Smith, 207 Wis.2d 259, 281, 558 N.W.2d 379, 389 (1997) (establishing a per se rule of prejudice where a trial lawyer does not object to the prosecution’s breach of a plea bargain). This, we believe, trumps the requirement that a defendant demonstrate that “the plea bargain agreement would have resulted in a lesser sentence.” See Engelen, 68 F.3d at 241.... (Note: Prosecutor retains discretion on remand as to whether or not to re-extend rejected plea bargain. But see Nunes v. Mueller, 9th Cir. 03-15509, 12/1/03 (remedy for similar problem of ineffective assistance due to counsel's failure to convey plea offer terms accurately is to require State to provide "identical offer" it made earlier). )

Litigating IAC Claims

Litigating IAC Claims – Multiple Attorneys: Only the Last Need Be Called as Witness

State v. Paul Anthony Butler, 2009 WI App 52, PFR filed 4/20/09

For Butler: Trisha R. Stewart Martin

Issue/Holding: ¶8        As noted, one of Butler’s claims on this appeal is that his lawyers should have sought to suppress the gun. The only person who testified at the hearing under State v. Machner, 92 Wis. 2d 797, 285 N.W.2d 905 (Ct. App. 1979) (hearing to determine whether lawyer gave a defendant ineffective assistance), as to whether his lawyers gave him ineffective assistance was Butler’s second lawyer, and she testified that after researching and discussing the matter with other criminal-defense lawyers in whom she had confidence, she concluded that the Fourth Amendment did not apply to what the security guard did. The circuit court excused the first lawyer from appearing because, as it explained in open court at the start of the Machner hearing, “whatever [the first lawyer] did or did not do in terms of representing Mr. Butler, was not at issue in this case, because Mr. Butler had a different attorney when he entered his plea … [and] the fact that [the first lawyer] failed to file a motion to suppress is of no consequence.” The circuit court was correct. See General Accident Ins. Co. v. Schoendorf & Sorgi, 202 Wis. 2d 98, 104, 105 n.7, 549 N.W.2d 429, 432 & n.7 (1996) (alleged initial negligence by law firm in drafting pension and profit-sharing plan not a cause of damages sustained by client after another firm negligently failed to bring plan into compliance); Seltrecht v. Bremer, 214 Wis. 2d 110, 123–124, 571 N.W.2d 686, 691 (Ct. App. 1997) (alleged negligence by first lawyer not a cause of injury to client when second lawyer could have cured it).…

Litigating IAC Claims – Sufficiency of Pleading, Machner Hearing - Conclusory Allegations

State v. Ronnie Lee Winters, 2009 WI App 48, PFR filed 4/8/09

For Winters: Ralph Sczygelski

Issue/Holding: Machner hearing not required where the claims were conclusory and self-serving, ¶¶30-34.

Litigating IAC Claims – Sufficiency of Pleading, Machner Hearing - Prejudice - Guilty Plea

State v. Ronnie Lee Winters, 2009 WI App 48, PFR filed 4/8/09

For Winters: Ralph Sczygelski

Issue/Holding: Machner hearing not required on claim that counsel failed to timely convey plea offer, where defendant made no showing he would have accepted the offer: ¶36      If Winters wanted the trial court to hold an evidentiary hearing, he had the obligation to assert sufficient facts, which if true, would entitle him to relief. See Bentley, 201 Wis.  2d at 310-18. To be entitled to relief on his claim that trial counsel failed to timely convey the plea offer, Winters would have to aver not only that trial counsel failed to convey the plea offer to him, but also that “there was a reasonable probability” that he would have accepted it. See State v. Ludwig, 124 Wis.  2d 600, 611, 369 N.W.2d 722 (1985). Without such an assertion, there is no possible “relief” the court can offer. If Winters would have turned the plea bargain down even if it had been conveyed earlier, he was not prejudiced.

Litigating IAC Claims – Sufficiency of Pleading, Machner Hearing - Prejudice - Guilty Plea

State v. Ronnie Lee Winters, 2009 WI App 48, PFR filed 4/8/09

For Winters: Ralph Sczygelski

Issue/Holding: Machner hearing not required to hear claims counsel failed to point out inconsistencies in several witnesses’ descriptions of the perpetrator, where the evidence of guilt was strong and the witnesses’ “roles in the case were not significant to the ultimate result,” ¶¶37-39.

Litigating IAC Claims – Sufficiency of Pleading, Machner Hearing

State v. Cornell D. Reynolds, 2005 WI App 222

For Reynolds: Terry Evans Williams

Issue/Holding: Defendant was entitled to a Machner evidentiary hearing on his ineffective-assistance claim of deficient failure to pursue an alibi defense, where his postconviction motion was accompanied by affidavits indicating that he was with someone else at the time of the offense, hence could not have committed it, ¶¶8-11.

The court rejects the State’s argument that Reynolds was required to have submitted an affidavit from trial counsel, ¶10 n. 4, albeit on the procedural ground that no supporting authority is cited, and the court “need not address an argument unsupported by citation to authority.” The claim that the affidavits don’t amount to a “coherent” defense is rejected on the idea that “the State’s arguments challenge the credibility of Reynolds’s factual assertions, an issue ordinarily determined based on live testimony,” ¶11. Finally: the court says that Reynolds’ expression of remorse and acceptance of responsibility at sentencing “certainly raise a factual dispute regarding the veracity of Reynolds’s alibi claim.  However, that is precisely the sort of dispute that should be resolved by a Machner hearing.” ¶14. Just something to think about next time you tip-toe through the mine-strewn field of allocution. Is there a meta-message, with respect to favoring hearings on postconviction IAC claims? Perhaps, when you also take into account State v. Lisamba L. Love, 2005 WI 116, ¶¶30, et seq, though that case isn't cited by this one.

Evidentiary Hearing -- IAC Claim -- Trial Court Discretion to Deny

State v. David J. Roberson, 2005 WI App 195

For Roberson: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding: ¶11      A circuit court acts within its discretion in denying without a Machner hearing a postconviction motion based on ineffective assistance of counsel when: (1) the defendant has failed to allege sufficient facts in the motion to raise a question of fact; (2) the defendant has presented only conclusory allegations; or (3) the record conclusively demonstrates that the defendant is not entitled to relief. Nelson v. State, 54 Wis. 2d 489, 497-98, 195 N.W.2d 629 (1972). “If the motion on its face alleges facts that would entitle the defendant to relief, the circuit court has no discretion and must hold an evidentiary hearing.” State v. Bentley, 201 Wis. 2d 303, 310, 548 N.W.2d 50 (1996).  The trial court’s stated basis for denying a Machner hearing – “the court’s own observation of witnesses” who testified at trial but who “were not questioned thoroughly” as to the matter now in dispute – was misplaced, ¶13. However, the record “conclusively demonstrates that Roberson is not entitled to relief” (failure to raise a suppression issue is deemed non-prejudicial because the evidence would have been admissible anyway) and denial of hearing is affirmed on that alternative basis, ¶14.

Litigating IAC Claims -- "Appellate" vs. "Postconviction" Counsel State ex rel. Richard A. Ford v. Holm, 2004 WI App 22, PFR filed 3/1/04 For Ford: James R. Troupis, State Bar Pro Bono Project For Amicus (SPD): Marla Stephens, Director; Patricia K. Flood, First Asst. Issue/Holding: ¶9 n. 4: The court in State v. Knight, 168 Wis. 2d 509, 522, 484 N.W.2d 540 (1992), referred to “appellate counsel,” as opposed to “postconviction counsel.” The terms are sometimes used interchangeably, but where a distinction is drawn, it usually involves whether the representation at issue involved proceedings before this court or the circuit court. See State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 678-81, 556 N.W.2d 136 (Ct. App. 1996) (holding that claims of ineffective assistance of “post-conviction counsel,” such as the failure to file a postconviction motion in the trial court for plea withdrawal, must be raised in the trial court rather than by a Knight petition to this court). Although the allegation of ineffective assistance of counsel in this case involves the alleged actions or omissions of counsel prior to the filing of an appeal, it is nonetheless properly raised by way of a Knight petition in this court. See State ex rel. Smalley v. Morgan, 211 Wis. 2d 795, 798-99, 565 N.W.2d 805 (Ct. App. 1997) (“Counsel’s failure to commence an appeal under either RULE 809.30 or 809.32, regardless of whether such an appeal had to be preceded by a postconviction motion, can be challenged by a Knight petition in this court because counsel’s inaction in this court is at issue.” (footnote omitted)).

Litigating IAC Claims -- Evidentiary Hearing -- Pleading Requirements

State v. John Allen, 2004 WI 106, affirming unpublished decision

For Allen: Michael J. Backes

Issue/Holding: ¶14 A hearing on a postconviction motion is required only when the movant states sufficient material facts that, if true, would entitle the defendant to relief. … ¶15 It has been said repeatedly that a postconviction motion for relief requires more than conclusory allegations. Despite the repetitive theme that such motions require the allegation of sufficient material facts that, if true, would entitle the defendant to relief, many defendants continue to file insufficient postconviction motions.… … ¶21 There is a clear theme running through these and other similar cases. As we said in Bentley, the motion must include facts that "allow the reviewing court to meaningfully assess [the defendant's] claim." Bentley, 201 Wis. 2d at 314. For example, an insufficient statement that does not allow the court to meaningfully assess a defendant's claim might be an assertion that trial counsel did not adequately prepare for trial. This assertion is the defendant's opinion only, and it does not allege a factual basis for the opinion. On the other hand, a defendant's assertion that trial counsel failed to adequately prepare for trial because counsel did not review all the police reports and one police report contained exculpatory information that counsel did not put into evidence, alleges a factual basis for the assertion. See Saunders, 196 Wis. 2d at 51-52. ¶22 In addition, facts that allow a reviewing court to meaningfully assess a defendant's claim are those facts that are material to the issue presented to the court. A "material fact" is: "[a] fact that is significant or essential to the issue or matter at hand." Black's Law Dictionary 611 (7th ed. 1999). … ¶23 As an assistance to defendants and their counsel, we propose that postconviction motions sufficient to meet the Bentley standard allege the five "w's" and one "h"; that is, who, what, where, when, why, and how. A motion that alleges, within the four corners of the document itself, the kind of material factual objectivity we describe above will necessarily include sufficient material facts for reviewing courts to meaningfully assess a defendant's claim. … The meta-message would seem to be: postconviction motions must contain more, rather than less, detail, at least when requesting an evidentiary hearing. The court gives examples of motions that would pass muster; these were elided above but should be studied. The court goes on to find Allen’s motion insufficient to have warranted a hearing: “Though replete with information, the motion contains conclusory allegations and lacks sufficient material facts that Bentley requires,” ¶29. The motion, for example, “focused” on a document but failed to allege “sufficient material facts” to support a conclusion that it “actually exists.” Id. And so on. UPDATE: See also State v. Lisamba L. Love, 2005 WI 116, ¶¶30, et seq. (applying Allen and concluding that sufficient facts pleaded to warrant hearing on both IAC and NDE claims); the court noting, importantly, ¶36, that the pleading need not establish that the asserted facts are admissible evidence: "a movant need not demonstrate theories of admissibility for every factual assertion he or she seeks to introduce"; accord, ¶50: "as we noted above, a movant need not demonstrate the admissibility of the facts asserted in the postconviction motion, but rather must show sufficient objective material factual assertions that, if true, would warrant the movant to relief."

Litigating IAC Claims -- Trial Court's Broad Discretion to Consider Evidence State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04 For Arredondo: James A. Rebholz Issue/Holding: ¶50. Next, Arredondo alleges that the postconviction court erroneously exercised its discretion when it “refus[ed] to admit or consider” the testimony of Arredondo's witnesses at the Machner hearing. We disagree. While the postconviction court purported to limit the evidence Arredondo could present at the Machner hearing, it actually accepted and considered all written submissions from the parties, including Arredondo's witness affidavits and proffers of testimony. “‘A circuit court has broad discretion in determining the relevance and admissibility of proffered evidence.’” State v. Oberlander, 149 Wis. 2d 132, 140, 438 N.W.2d 580, 583 (1989) (quoted source omitted). Arredondo does not show how the court erroneously exercised its discretion. See, e.g., United States v. Delker, 757 F.2d 1390, 1396 (3d Cir. 1985) (court has discretion to accept evidence by live testimony or proffer at bail hearing). (The court seems to be saying that the postconviction court isn’t bound by the rules of evidence, as indicated by the approving reference to Delker. However, the rules of evidence are generally applicable to all court proceedings, save exceptions specified in § 911.01. One exception is for “pretrial release under ch. 969” (i.e., bail proceedings) but this exception specifically does not include a habeas challenge to bail, § 911.01(4)(c) – which means that Delker is certainly correct in context but its extension to postconviction proceedings is at best facile, at worst inapt.)

Litigating IAC Claims -- Necessity for Specifity in Pleading Assertions State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04 For Arredondo: James A. Rebholz Issue/Holding: ¶40. Arredondo further alleges that his attorney failed to investigate parole-revocation proceedings, which would have revealed that Moederndorfer allegedly lied to Moederndorfer's parole agent concerning some matter other than the facts of this case. He claims that his attorney should have used the testimony of Moederndorfer's parole agent to impeach Moederndorfer's character for truthfulness. Arredondo does not elaborate, however, on what the parole agent would have said if called to testify. When a defendant claims that trial counsel was deficient for failing to present testimony, the defendant must allege with specificity what the particular witness would have said if called to testify. See State v. Flynn, 190 Wis. 2d 31, 48, 527 N.W.2d 343, 349-350 (Ct. App. 1994). Arredondo has failed to provide the requisite specificity.

Litigating IAC -- Appellate Review -- Deference to Trial Court

State v. James R. Thiel, 2003 WI 111, reversing unpublished opinion of court of appeals

For Thiel: Bruce J. Rosen

Issue/Holding: ¶22. Thiel asks this court to modify the foregoing standard of review and, as a matter of policy, announce a rule that appellate courts accord some degree of deference to a trial judge's assessment of counsel's deficient performance and the prejudicial effect of counsel's errors. He reasons that trial judges have a unique vantage point on these issues, having heard all the evidence and observed the conduct and demeanor of the witnesses, counsel, and members of the jury--both at trial and at the postconviction hearing. ¶23. We decline this invitation. Since the Strickland decision, this court has consistently held that "[t]he ultimate determination of whether counsel's performance was deficient and prejudicial to the defense are questions of law which this court reviews independently." State v. Johnson, 153 Wis. 2d 121, 128, 449 N.W.2d 845 (1990) (citing State v. Pitsch, 124 Wis. 2d 628, 634, 369 N.W.2d 711 (1985)); see also Trawitzki, 244 Wis. 2d 523, ¶19. To the extent that a trial judge wishes to introduce into the record factual determinations that require consideration on appeal--such as assessments of credibility and demeanor--the judge should articulate these findings of fact in his or her decision. On review, appellate courts must be sensitive to these findings and not exclude them, either expressly or impliedly, from an analysis of deficiency and prejudice, unless they are clearly erroneous. ¶24. In our review of Thiel's claim of ineffective assistance of counsel, we grant deference only to the circuit court's findings of historical fact. We review de novo the legal questions of whether deficient performance has been established and whether it led to prejudice rising to a level undermining the reliability of the proceeding.

Litigating IAC -- Challenge to Guilty Plea -- Denial without Hearing State v. Louis J. Thornton, 2002 WI App 294 Issue/Holding: The trial court's denial of a claim of ineffective assistance of counsel in support of a motion to withdraw guilty pleas, without hearing testimony from the trial attorney, wasn't error where the motion was conclusory and didn't explain why the defendant would have gone to trial absent the asserted attorney-deficiencies. ¶27.

Litigating IAC -- Challenge to Failure to File ("Riverside") Motion to Suppress -- Burden to Show Success on Merits

State v. Frederick G. Jackson, 229 Wis. 2d 328, 600 N.W.2d 39 (Ct. App. 1999)

For Jackson: Allan D. Krezminski.

Issue/Holding: The interrogation took place in violation of County of Riverside v. McLaughlin, 500 U.S. 44 (1991) (suspect must be taken to court within 48 hours of arrest). Jackson alleges ineffective assistance of counsel for failing to file a motion to suppress on this basis. The trial court denied the postconviction motion without a hearing. The court of appeals affirms: Jackson's motion is bereft of any allegation, no less any factual support for any such allegation, that he would not have pled guilty if his lawyer had sought to suppress his statement to the detective because of an alleged violation of the County of Riverside decision. Moreover, he has not made any offer of proof to support a conclusion that such a motion would have been successful. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (defendant who alleges that counsel was ineffective for withdrawing a suppression motion must show that the motion would have succeeded). Accordingly, the trial court was not required to hold an evidentiary hearing on his claim. See Bentley, 201 Wis.2d at 309-310, 548 N.W.2d at 53. Nevertheless, the trial court could have, within the proper exercise of its discretion, held an evidentiary hearing even though such a hearing was not required. See ibid.

Litigating IAC -- Trial Counsel's Testimony -- Rejecting

State v. Jeffrey S. Kimbrough, 2001 WI App 138, PFR filed 6/25/01

For Kimbrough: Glenn C. Cushing, SPD, Madison Appellate

Issue: Whether, on postconviction challenge to trial counsel's failure to request a lesser offense option, the trial court was entitled to reject counsel's own acknowledgement that the omission was inadvertent, and to find instead that counsel in fact intended to pursue an all-or-nothing strategy.

Holding: "(T)he trial court in this case was free to accept or reject all or any portion of defense counsel's testimony as it deemed credible." ¶29. Moreover, an all-or-nothing strategy "would have been reasonable if defense counsel had made it for strategic reasons." ¶31. Harris v. Read, 894 F.2d 871 (7th Cir. 1990) (court reviewing ineffective assistance claim may "not construct strategic defenses which counsel does not offer") distinguished on fact-specific grounds, but with the following caution: ¶35. Clearly, the reasoning in Harris does not require a reviewing court to view defense counsel's subjective testimony as dispositive of an ineffective assistance claim. Such testimony is simply evidence to be considered along with other evidence in the record that a court will examine in assessing counsel's overall performance. Consequently, we hold that defense counsel's representation of Kimbrough was objectively reasonable under all the circumstances and ensured that Kimbrough received a fair trial. Therefore, Kimbrough has failed to demonstrate that his representation was constitutionally deficient.

Litigating IAC -- Necessity of Machner Hearing

State v. Gary Curtis, 218 Wis. 2d 550, 582 N.W.2d 409 (Ct. App. 1998)

For Curtis: Arthur B. Nathan

Issue/Holding: A Machner hearing is required (in order to preserve trial counsel's testimony) on a claim of ineffective assistance, notwithstanding an argument "that because trial counsel's errors were so obvious and could not possibly have been trial tactics, no Machner hearing was required."

Other With respect to sanctions, also see various cases discussing enforcement of appellate procedure, here.

Ineffective Assistance: Relation to Interest of Justice Claim

State v. Quentrell E. Williams, 2006 WI App 212

For Williams: Eileen A. Hirsch, SPD, Madison Appellate

Issue/Holding: ¶14      The State contends a claim for a new trial in the interest of justice is inappropriate when the claim may be analyzed under ineffective assistance of counsel. Thus, the State argues, Williams’s entire argument must be analyzed under the framework of ineffective assistance of counsel. We disagree.  … ¶16      … State v. Hicks, 202 Wis. 2d 150, 152-53, 549 N.W.2d 435 (1996) … granted a new trial because the real controversy was not fully tried even though we had granted a new trial as a result of ineffective assistance of counsel. ¶17      Thus, Hicks supports a conclusion that an argument that can be framed under ineffective assistance of counsel may also support a motion for a new trial because the real controversy was not fully tried. We therefore consider Williams’s arguments that he was denied effective assistance of counsel and that the real controversy was not fully tried. …

Sanctions – Inadequate Appendix to Appellate Brief, Citation to Record

S.C. Johnson v. Milton E. Morris, 2010 WI App 6, PFR filed 12/30/09

Issue/Holding: ¶5 n. 1: We note that neither Russell’s nor Buske’s appellate counsel properly cite to the record. Record cites are often missing. An appellate court is improperly burdened where briefs fail to consistently and accurately cite to the record. Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957). Even more troubling is that both appellate counsel failed to include in the appendix all “the findings or opinion[s] of the circuit court … including oral or written rulings or decisions showing the circuit court’s reasoning regarding those issues,” as required by Wis. Stat. Rule 809.19(2)(a) (2007-08). We had to sift through the voluminous record to find the trial court’s rulings on some of the issues on appeal. We impose a fine of $150 on Buske’s appellate counsel and a fine of $150 on Russell’s appellate counsel. See State v. Bons, 2007 WI App 124, ¶¶21-25, 301 Wis. 2d 227, 731 N.W.2d 367. Both fines are payable to the clerk of this court within thirty days of the release of this opinion. See id., ¶25.

Sanctions – Inadequate Appendix to Appellate Brief

Werner v. Hendry, 2009 WI App 103, PFR filed 7/17/09

Issue/Holding: ¶11      As a final matter, we observe that the appellant’s appendix fails to include the trial court’s reasoning. It is essential that the appendix include the record items truly relevant and essential to understanding the issues raised, particularly the trial court’s oral ruling. State v. Bons, 2007 WI App 124, ¶23, 301 Wis. 2d 227, 731 N.W.2d 367. Counsel for the appellant is sanctioned $150 for providing a false appendix certification and providing a deficient appendix. Id., ¶25. Counsel shall pay $150 to the clerk of this court within thirty days of the release of this opinion. Just a friendly reminder to anyone filing an appellate brief: the court expects you to provide an adequate appendix, and it also takes the certification process very seriously. By the way, the court also dismissed Werner’s appeal on jurisdictional grounds, due to an untimely notice of appeal; the fine is insult added to injury.

Sanctions – Inadequate Appendix to Appellate Brief

State v. Todd E. Peterson, 2008 WI App 140

For Peterson: Ralph Sczygelski

Issue/Holding: ¶6 n. 5: In accordance with Wis. Stat. Rule 809.19(2)(a), the appellant’s appendix must contain “relevant trial court record entries, the findings or opinion of the trial court and limited portions of the record essential to an understanding of the issues raised, including oral or written rulings or decisions showing the trial court’s reasoning regarding those issues.” Peterson’s appendix does not contain the September 21, 2006 transcript, which is essential to the issue of the circuit court’s disqualification of retained counsel. Failure to comply with a requirement of the rules “is grounds for … imposition of a penalty or costs on a party or counsel, or other action as the court considers appropriate.” Wis. Stat. Rule 809.83(2). Accordingly, we sanction Attorney Ralph Sczygelski and direct that he pay $150 to the clerk of this court within thirty days of the release of this opinion. See State v. Bons, 2007 WI App 124, ¶¶22-25, 301 Wis. 2d 227, 731 N.W.2d 367.

Sanctions – Ad Hominem Argumentation

Bettendorf v. St. Croix County, 2008 WI App 97

Issue/Holding: An appellate “brief contain(ing) a collection of attacks against [opposing counsel] that are nothing more than unfounded, mean-spirited slurs” subjects its author to ethical sanction: ¶17      “A lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials.” (Emphasis added.) Preamble, SCR ch. 20 (2005-06). “The advocate’s function is to present evidence and argument so that the cause may be decided according to law…. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.” [3] Comment, SCR 20:3.5 (2005-06). Given corporation counsel’s unwarranted belligerence, it is the determination of this panel that a copy of this opinion shall be furnished to the Office of Lawyer Regulation for review and further investigation, as that office may deem appropriate.  [3] We thus appreciate Bettendorf’s attorney’s professionalism and restraint, demonstrated by his refusal to turn his reply brief into a similar set of attacks. An object lesson in the dangers of brief-writing as therapy—ventilating, in a word. The court quotes some (or is it all? the court doesn’t say) of the offending language: ¶¶15-16. Sophomoric? No doubt. Personal? Well, use of the personal pronoun “I” is a bit of a giveaway. Clearly, the rhetoric is both gratuitous and self-defeating. (Remember, respondent made the offensive argument; the appeal, without getting into the details, seems quite frivolous and perhaps the appellant would have been sanctioned had it not been for the distraction caused by respondent’s tone.) Let’s agree, then, that respondent’s approach is one an effective advocate should always avoid, at all costs. But just why was it unethical rather than merely ineffectual? For exhibiting what the court oddly characterizes as “unwarranted belligerence”? The characterization suggests, by the way, that warranted “belligerence” is within bounds. And if that is so, then why wasn’t counsel’s belligerence warranted by the mere fact of a patently frivolous appeal? There is, to be sure, no doubt that sufficiently aggravated and personal attacks on opposing counsel run afoul of ethical rules, e.g., U.S. Bank National v. City of Milwaukee, 2003 WI App 220, fn. 4; see also, Matter of Abbott, 925 A.2d 482 (Del. 2007). But where the line is drawn remains to be seen, nor does the court quite get around to saying. Perhaps a boundary can’t be set. At a minimum, then, it’s best to avoid ascribing motive to your opponent, as counsel apparently did here (accusing appellant of pursuing “excessive” “self-interest”).

Sanctions – False Certification of Appendix to Appellate Brief

State v. Philip R. Bons, 2007 WI App 124, PFR filed 4/24/07

For Bons: Vladimir M. Gorokhovsky

Issue/Holding: ¶23      Applying the plain language of the rule, Gorokhovsky’s certification of compliance is false. His appendix contains only a copy of the judgment of conviction, the notice of motion and motion to suppress, and the notice of intent to pursue postconviction relief. How these documents in any way inform this court about the trial court’s determinations “essential to an understanding of the issues raised,” we do not know. A judgment of conviction tells us absolutely nothing about how the trial court ruled on a matter of interest to the appellant. A notice of motion and motion to suppress and the notice of intent to pursue postconviction relief are meaningless to the discussion of the issues at bar. Here, the trial court provided extensive oral decisions on the issue of whether Ramstack properly detained Bons and the question of whether Bons voluntarily consented to the searches of his vehicle or trunk. Both of these oral decisions were “essential to an understanding of the issues raised.” Neither were in the appendix. Yet, Gorokhovsky certified that the essential items were in his appendix. They were not. Therefore, his certification is false. In fact, no items essential to our understanding of the issues were in his appendix. ¶24      Filing a false certification with this court is a serious infraction not only of the rule, but it also violates SCR 20:3:3(a) (2006). This rule provides, “A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal.” By attesting that he complied with the appendix rules when he did not, Gorokhovsky made such a false statement. ¶25      Gorokhovsky’s deficient appendix placed an unwarranted burden on this court. Failure to comply with a requirement of the rules “is grounds for … imposition of a penalty or costs on a party or counsel, or other action as the court considers appropriate.” Wis. Stat. § 809.83(2) (2005-06). Accordingly, we sanction Gorokhovsky and direct that he pay $150 to the clerk of this court within thirty days of the release of this opinion. Judge Brown’s concurrence (¶¶26-30) both stresses the importance of a complete Appendix and laments the current tendency to burden the court with “worthless” Appendices. The certification requirement is meant to improve this practice and, in the event you missed the point of raking the unfortunate Mr. Gorokhovsky over the coals: “It is time that the rule was enforced.” Indeed, the underlying search and seizure issue seems to be so utterly mundane that the only purpose of publication is to drive home the need for more complete Appendices. In this respect, it’s probably not irrelevant that the same sort of transgression also resulted in a $150 fine, but in an unpublished opinion, State v. Devin Brown, 2005AP2450-CR, Dist. I, 12/19/06. And lest you think this is a merely parochial concern, you might want to take a look at U.S. v. White, 472 F3d 458 (7th Cir 2006) (order to show cause why counsel should not be fined $1000 for same sort of violation—yep, that’s one more digit than our COA thought necessary for condign punishment; accompanied by strong language re: need to ensure “meticulous” compliance with briefing rules). U.S. v. Patridge, 7th Cir No. 06-3635, 11/14/07 ("frivolous arguments and noncompliance with the Rules" subjected appellate practitioner to show-cause order "why he should not be suspended from practice until he demonstrates an ability to litigate an appeal competently and responsibly").

Sanctions – Jury Costs – § 814.51, Assessed Against State

Flottmeyer and Monroe Co. D.A.’s Office v. Circuit Court for Monroe Co., 2007 WI App 36

Issue/Holding1: Jury fees may be assessed against the State under § 814.51 for canceling a jury 2 days before the scheduled trial, notwithstanding that the statutory text refers to “plaintiff” rather than “State.”

Martineau v. State Conservation Commission, 54 Wis. 2d 76, 79, 194 N.W.2d 664 (1972) requires that “costs may not be taxed against the state or an administrative agency of the state unless expressly authorized by statute.” However, the statutory reference to “plaintiff” is broad enough to encompass the “State,” ¶¶9-13: ¶14      In sum, we conclude that the term “plaintiff” in Wis. Stat. § 814.51 is an express reference to the State for purposes of the Martineau rule here. Accordingly, we reject the State’s argument that the circuit court lacked authority to impose jury fees against the State. A tangential point of possible parochial interest: what about the Office of the State Public Defender? It’s a state agency, entitled to sovereign immunity but unlike the “State” in its prosecutorial modality not a party to the litigation. The issue was unsuccessfully litigated some time ago, not necessarily well to be sure, but then again the court’s discussion was somewhat less than edifying: OSPD v. Dunn County, 98AP1659. It’s not that this new case establishes SPD sovereign immunity, but that it keeps the question alive.

Issue/Holding2: The decision to assess jury fees under § 814.51 is subject to the same discretionary considerations as the inherent exercise of such authority (see Patricia O’Neil v Monroe County Circuit Court, 2003 WI App 140), ¶16. That exercise was properly made where, although the prosecutor was informed only on the eve of trial that the complainant would not appear to testify despite prior assurance, the prosecutor had not personally spoken with that witness in several months, ¶¶16-24 (the court of appeals stressing that the trial judge had not assigned personal blame to the prosecutor but instead faulted the district attorney’s office for not doing more to keep in contact with the complainant, ¶¶23-24).

Support for the result is awfully thin. The complainant said she’d show up and had in fact been served with a subpoena. What more could the office have done? This, and nothing more: “In particular, although the prosecutor advised the court that she was informed two or three weeks prior to the trial date that the witness had indicated to the victim-witness coordinator that she would appear, the prosecutor did not indicate whether the witness had been contacted since that time, despite the fact that it was known that the witness had moved to Chicago,” ¶24. Gloat if you want, just remember that jury fees may also be assessed against defense counsel, in other words, that this particular door swings both ways.

Sanctions -- Factual Misrepresentations, Inadequate Citations

Settipalli v. Settipalli, 2005 WI App 8

Issue/Holding: Repeated misrepresentations as to record facts, and inadequate citations to the record and legal authority in support of argument, ¶¶19-26, support imposition of sanctions: ¶27 In summary, we conclude that Sandesha’s brief contains both omissions and affirmative misrepresentations. One of the options available to this court is to strike the brief and dismiss the appeal. See Mogged v. Mogged, 2000 WI App 39, ¶17, 233 Wis. 2d 90, 607 N.W.2d 662 (Ct. App. 1999). We choose not to dismiss the appeal as a sanction for these failings because that is a drastic remedy and because other available remedies will, we hope, discourage this type of appellate advocacy in the future. See Smythe v. Smythe, 225 Wis. 2d 456, 468- 69, 592 N.W.2d 628 (1999). ¶28 WISCONSIN STAT. § 809.83(2) permits the court to impose a penalty or costs on a party or counsel for violation of court rules. Vigorous advocacy for a client, and candor with the court, are not inconsistent requirements of our legal system. Both characteristics are expected and honored by the court and by the public. These expectations are of such long standing in, and of such importance to, our judicial system that departure from either one of those requirements is a serious matter. Recognizing that individual litigants do not generally have the knowledge or skill to write appellate briefs, and that candor with the court and compliance with court rules are primarily the responsibility of the attorney involved, we conclude that sanctions should be imposed against Sandesha’s counsel. Specifically, we conclude that Ramakrishna is entitled to the costs and attorney fees he incurred or expended on this appeal. We remand to the trial court to determine the amount of costs and attorney fees to be awarded.

Sanctions-- Violating No-Cite Rule, § 809.23(3)

State v. John S. Cooper, 2003 WI App 227, PFR filed 11/14/03

For Cooper: John A. Birdsall

Issue/Holding: ¶23. As a final matter, this court notes with dismay the multiple citations to unpublished opinions contained in Cooper's appellate brief. The Rules of Appellate Procedure proscribe as follows: Unpublished opinions not cited. An unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority, except to support a claim of claim preclusion, issue preclusion, or the law of the case. Wis. Stat. Rule 809.23(3) (2001-02). ¶24. Cooper's appellate counsel attempts to minimize his culpability by locating such citations in footnotes and providing the disclaimer that citations to unpublished decisions are “for information and illustrative purposes only.” His use of the unpublished opinions to support his argument, however, reveals his intent to persuade this court with the improper citations. ¶25. When faced with such a blatant disregard for the Rules of Appellate Procedure in the past, this court has not hesitated to impose consequences. While "[w]e sometimes (perhaps too often) make allowances for appellate counsel's failure to abide by these rules ... [t]here are limits beyond which we cannot go in overlooking these kinds of failings." State v. Pettit, 171 Wis. 2d 627, 647, 492 N.W.2d 633 (Ct. App. 1992). Cooper's appellate counsel has exceeded those limits. ¶26. We hereby impose a fine of $50 for each violation of Wis. Stat. Rule 809.23(3) (2001-02). We count nine citations to unpublished opinions in the appellant's brief, for a total fine of $450. (Well. The court is obviously in high dudgeon over “such a blatant disregard for the” rules as to remind the court of what it has previously said. Make no mistake: this is a send-a-message fine, given both the accompanying rhetoric and the sheer amount. Cite an unpublished case and you can expect a sanction. Even so, a fine for citing unpublished cases is one thing; imposing a fine for each such cite is something else. Cite two unpublished cases and it’s like speeding in a work zone. The court’s ire is simply impossible to fathom. In the first place, the court of appeals isn’t always fastidious about enforcing the no-cite rule. Indeed, the court very recently let counsel off the hook with mere admonishment after counsel not merely cited an unpublished case but didn’t even reveal that it was unpublished. LaCrosse Co. v. Stacy C., 02-1620, 12 n. 4, the court noting that “there is currently a motion before the supreme court to change this rule”; but at the same time cautioning that “the current rule as quoted above is the only operative rule[;] (i)t must be observed by counsel.” The effort to change the rule was, of course, subsequently rejected, by order dated 7/1/03. 2003 WI 84. But that effort was no less pending at the time Cooper’s brief was written – which makes singling out its transgression unfair, at least in appearance. Consider, too, the narrow reach of the no-cite rule, as construed by the court itself – you can cite non-precedential trial court decisions, Brandt v. LIRC, 160 Wis. 2d 353, 466 N.W.2d 673 (Ct. App. 1991), unpublished cases from other states, Predick v. O'Connor, 2003 WI App 46, ¶12 n. 7, and unpublished federal decisions, State ex rel. Gendrich v. Litscher, 2001 WI App 163, ¶7 n. 6. So, about the only thing you can’t do is inform the court of what it has itself said. Why, then, a draconian fine for violating a rule that serves little purpose? Perhaps it’s precisely because the rule serves no obviously useful purpose; excessive sanction is the best last defense in favor of a crumbling policy. Finally, there are good-faith challenges that might be made to the rule. One federal court has held that a similar rule violates Art. III, Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), though that panel decision was subsequently dismissed on en banc review because the underlying appeal was moot, 235 F.3d 1054. (Wis. Const. Art. VII, § 2 tracks Art. III language, so the same argument could be made under the Wis. Const.) Another court disagrees, Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001), but that doesn’t make a challenge to R. 809.23 any less in good faith. There’s a good discussion in this law review article: “SEPARATION OF POWERS AND THE HORIZONTAL FORCE OF PRECEDENT,” 78 Notre Dame L. Rev. 1075 (2003). And for an “angle” that, according to the author, “has not yet been closely examined by courts or commentators,” namely “that no-citation rules, which forbid all citation to unpublished opinions, tread upon the First Amendment rights of attorneys, and by extension, their clients,” see: NOTE: NO-CITATION RULES AS A PRIOR RESTRAINT ON ATTORNEY SPEECH, 103 Col. L. Rev. 1202 (2003).) (UPDATE: Efforts to create a uniform federal rule, allowing citation of unpublished opinions, has generated a good deal of controversy. See, generally, this site. For a vigorous arguments in favor of the no-cite position, see these letters by Judge Kozinski and a majority of 7th Circuit judges. But for a concise but thoughtful view opposing the Kozinski position, go here. And for a scholarly analysis, "NO-CITATION RULES UNDER SIEGE: A BATTLEFIELD REPORT AND ANALYSIS," go here. What this all shows is that this controvesry isn't likely to go away antyime soon.)

Sanctions - Dismissal of Appeal

State v. Ralph D. Smythe, 225 Wis.2d 456, 592 N.W.2d 628 (1999)

For Smythe: Ralph A. Kalal

Issue/Holding: ¶3 The petitioner seeks review of the following issue: Does Rule 809.83(2), pertaining to the imposition of sanctions, allow the court of appeals to dismiss a party's appeal as a sanction against the party's counsel, based upon the conduct of the counsel in other cases not involving the party and occurring in the past? We conclude that a court of appeals decision to dismiss an appeal may be reversed when there is compelling evidence that that court based its decision, in part, on the past practices of counsel in unrelated matters. Because the court based its decision in this case partly on past, unrelated extension practices by Attorney Kalal, we reverse the order and remand the case for reconsideration.

Sanctions -- Fine for Being Late

Scott F. Anderson v. Circuit Court for Milwaukee County, 219 Wis.2d 1, 578 N.W.2d 633 (1998), affirming unpublished opinion.

Holding: A circuit court has the power to sanction an attorney for being late to a scheduled court appearance in violation of a scheduling order, but the fine imposed under the particular facts here was an erroneous exercise of discretion.

Analysis: Though the trial court possessed authority to impose a fine, it nonetheless erroneously exercised discretion. "A court should use caution in imposing sanctions against attorneys." The "circuit court must make a record of the reasons for imposing sanctions[.]" The attorney must be given the opportunity to explain his/her tardiness, and the "record must assess the disruptive impact on the court court's calendar[.]" Attorney Anderson was given the opportunity to explain why he was late, but the trial court failed to identify any disruption he caused; nor did the record show that Attorney Anderson had a history of being late. The record therefore could not sustain the order. (Note: the mandate vacates the order imposing the fine, rather than remanding for further proceedings in which the court would have the opportunity to renew his effort to impose the fine.)

Sanctions -- Jury Costs

Patricia O’Neil and OSPD v Monroe County Circuit Court, 2003 WI App 140

For O’Neil: Tracey Lencioni, SPD, Office of Legal Counsel

On-line Briefs: http://www.wisspd.org/html/appellate/briefbank/briefs/022866.pdf (brief-in-chief); http://www.wisspd.org/html/appellate/briefbank/briefs/022866r.pdf (reply brief)

Issue/Holding: The trial court’s imposition of jury costs against counsel was an erroneous exercise of discretion, in that the conduct of counsel leading to dismissal of the jury didn’t rise to a level of negligence. ¶21.

A fact-specific case, but the important lesson is: even though a court possesses inherent authority to impose costs for dismissing a jury, that power ought to be wielded as a scalpel not a cudgel. Counsel obtained an expert witness, and so informed the prosecutor, the day before trial. After the jury was impaneled the state objected to the (supposedly) late notice of the expert; the court ordered an adjournment to give the state time to get a responsive expert, dismissed the jury, and ordered counsel to pay the jury costs. But the expert was retained so late because the state tardily provided its witness list. If counsel’s expert was a last-minute revelation, it was because of events that the state had put in train. Indeed, the trial court had also assigned blame to the prosecutor for the result, causing the court of appeals to remark: “This is where the problem lies. O’Neil cannot be criticized for following a local custom, which was to respond to the State’s list of witnesses.” ¶18. The trial court did not, however, also go after the prosecutor. Instead, the trial court ascribed responsibility solely to defense counsel on the theory that she should have objected to the prosecutor’s tardiness. ¶8. The court of appeals seems to have clearly seen that the defense was thus punished for doing its job too efficiently; rather than complaining about the state’s dilatoriness, defense counsel put her nose to the grindstone and came up with the witness needed to move the case along. This background also highlights an interesting procedural flaw that might otherwise be missed in the erroneous-exercise-of-discretion reversal on the merits: “In light of the ambiguous discovery order and the informal manner in which counsel generally exchanged witness lists, O'Neil had no notice that instead of scrambling to obtain an expert witness and being prepared to go to trial on January 3, she was required to object to the State's list to avoid sanctions,” ¶19, emphasis supplied. In other words, the sanction was flawed because counsel was given inadequate notice of the consequences of the very actions for which punishment was sought. It ought to be kept in mind that due process applies to attorneys, same as defendants, even if the consequences are merely civil. And those consequences weren’t exactly inconsiderable in this instance – costs amounted to $1,111.95. Although this basic point is probably self-evident, also see, for example, Howell v. Denomie, 2005 WI 81, ¶17 ("in order to determine that an appeal is frivolous, the court of appeals is required to give notice that it is considering the issue. It must also give an opportunity to respond to the issue before a determination is made."); and Johnson v. Cherry (Appeal of Clinite), 7th Cir No. 04-3562, 9/6/05 (before imposing sanctions, in amount of $1300, against attorney for alleged misconduct, court was required to afford "notice of the specific conduct for which it was contemplating sanctions," and opportunity to mount defense).

Sanctions -- Federal Authority -- Omission of Required Appendix Materials from Appendix

A.M. v. Butler, 7th Cir. No. 02-2882, 3/2/04 Issue/Holding: Finally, we return to the Circuit Rule 30 [appellant must provide opinion under review, in appendix to brief] violation we noted earlier in this opinion. We have repeatedly emphasized the importance of compliance with Circuit Rule 30. In United States v. Rogers, 270 F.3d 1076 (7th Cir. 2001), we said: Compliance with Circuit Rule 30 is essential to proper performance of the appellate task, especially by those members of this court whose chambers are outside Chicago and who lack instant access to the record. Even judges with chambers in Chicago often prepare for oral argument at home or elsewhere and need the district judge’s reasons ready to hand. 270 F.3d at 1085. Years ago, we issued mere warnings to attorneys who failed to comply with Rule 30. See Mortell v. Mortell Co., 887 F.2d 1322 (7th Cir. 1989); United States v. White, 888 F.2d 490 (7th Cir. 1989); United States v. Bond, 847 F.2d 1233 (7th Cir. 1988). More recently, we have imposed both a reprimand and a $1,000 fine for Rule 30 violations. Rogers, 270 F.3d at 1085, and United States v. Evans, 131 F.3d 1192 (7th Cir. 1997). We will stay true to that practice here. Accordingly, we reprimand attorney Hoffman and give her 14 days to show cause, if any she has, why she should not be fined $1,000 for noncompliance with Rule 30. Wisconsin also requires both that the lower court decision be reproduced in the brief appendix, 809.19(2). There's no reason to think that the court of appeals will enforce that requirement with the same alacrity as the 7th Circuit, but it is certainly wise to keep in mind the reason for the court's ire, explicitly articulated above: omitting the materials required by the rules makes the judges' work unnecessarily difficult. Why irritate an appellate judge for no good reason? UPDATE: The court subsequently decided to "chalk up the violation of Rule 30 in this case to a simple mistake," and discharged the order to show cause, although the "original opinion still stands as a public censure." A.M. v. Butler, 4/22/04. The basis for this conclusion is worth quoting, inasmuch as it shows the value of mitigating background factors even where the issue involves sanctions: Furthermore, we note that Ms. Hoffman has no record of violating court rules and has, in fact, performed capably in other cases. ... We also note that in her career as a public lawyer (first as an assistant, later as a supervising attorney in the Criminal Appeals Division of the office of the Attorney General of Illinois, and now as a member of the staff of the DuPage County State’s Attorney’s Office) she has earned the respect of her colleagues and courtroom adversaries.1 1A “highly diligent, professional, skilled and dedicated lawyer,” says Joel D. Bertocchi, the former solicitor general of Illinois, in a letter representative of others we have received. But, in a subseuqent opinion, the 7th Circuit expressed disquietude "about shoddy performance by lawyers representing the Sttae of Illinois," citing A.M. as Exhibit A. Madej v. Briley, 04-1760, 5/28/04: Systemic problems require systemic solutions. One option is to instruct the district court to open proceedings to determine who is responsible for the state’s failure to comply with its order, and to impose appropriate penalties for contempt of court. Even better, however, would be the adoption of procedures within the state’s legal bureaucracy to ensure that these problems do not recur. We invite the Attorney General and the State’s Attorney to explain, within 21 days, what they think can be done in lieu of contempt proceedings. Given the failure of the assurances made to us in Carroll and A.M., any proposals must be concrete rather than general promises to do better next time. ...

Sanctions – Misrepresentation to Appellate Court (Dicta)

State v. Michael D. Sykes, 2005 WI 48, affirming unpublished decision of court of appeals

For Sykes: Jeffrey J. De La Rosa

Dicta: Appellate counsel should simply correct misstatements made at oral argument or in the briefs, without first asking permission of the court, ¶¶49-55 (3-Justice dissent, on point not discussed by majority).

Seems self-evident, and probably is. For an example of what might be at stake, see BAPR v. Kalal, 2002 WI 45: This attorney disciplinary matter involves an attorney's misrepresentation of fact during oral argument to this court, in violation of SCR 20:3.3, which imposes upon attorneys the obligation of candor toward the tribunal. We emphasize at the outset that an attorney's duty of candor toward the tribunal is central to the truth-seeking function of any court, including, obviously, this one. Oral argument is not an opportunity for deception. This court makes its decisions, albeit tentatively, immediately following oral argument, relying in part on information supplied by counsel in response to the court's questions. This is a critical part of the court's decision-making process. Attorney Ralph Kalal knowingly made false statements to this court during oral argument, in response to questions from members of the court. Under these circumstances, only a strong, unmistakable and public sanction will reinforce the attorney's obligation of truthfulness and candor in court and deter the sort of gamesmanship that Attorney Kalal's conduct represents. We conclude that the gravity of this misconduct requires at least a public reprimand. This isn’t to suggest that intentional misrepresentations were in the Justices’ minds in Sykes. Not in the remotest. Reference to Kalal simply underscores the importance of oral argument to the decisional process, which in turn means stressing the importance of factually accurate assertions at argument. Following an unfavorable result, it will be little consolation that the court’s wrath stopped merely at distraction, short of sanction. Counsel who "knowingly" fails to cite controlling authority "directly adverse" to his or her position is subject to sanction for an ethical breach: Tyler v. State, 47 P.3d 1095 (Alaska App. 2001).

Malpractice Claim – “Actual Innocence” Requirement Applicable to Appellate as Well as Trial Counsel

Tallmadge v. Boyle, 2007 WI App 47, PFR filed 3/19/07

Issue/Holding: The rule of Hicks v. Nunnery, 2002 WI App 87, that an attorney malpractice claim in a criminal case requires proof of actual innocence, applies to appellate as well as trial counsel representation: ¶19      There is nothing in this record to demonstrate that Tallmadge could prove that any action or inaction by Boyle caused him any recoverable injury. In a situation where a criminally convicted defendant files a legal malpractice lawsuit, the injury is different than in non-criminal settings. In order to prove causation, the convicted criminal must show that, but for his former attorney’s conduct, he would have been successful in the criminal lawsuit. Success in this context is not merely to have a court grant a motion or even order a new trial. Success in this context is a get out of jail free card. Thus, success here means proving to a jury that the convicted criminal is innocent of all fifteen counts for which he was convicted. Hicks clearly declares this to be the law in Wisconsin. … ¶22      … The bottom line is that public policy in this state bars convicted criminals who file a legal malpractice claim, from recovering money from their former defense counsel, unless they can prove that “but for” that defense counsel’s actions, the convicted criminal would be free. Tallmadge fails to provide us with any persuasive reason for making a distinction between legal malpractice actions against trial counsel versus appellate counsel. The public policy in this state does not support Tallmadge’s attempted distinction. Thus, because there is nothing in the record to suggest that but for Boyle’s actions or inactions Tallmadge would be out of prison, summary judgment was proper, and public policy considerations preclude the continuation of this legal malpractice action.

Right/Assertion/Waiver of Counsel

Counsel – Right to, Public Expense – Generally

State v. Alvernest Floyd Kennedy, 2008 WI App 186

Pro se

Issue/Holding: ¶10      There are two avenues by which an indigent criminal defendant will be afforded counsel at no expense. The first is through the legislatively created Office of the State Public Defender. The legislature created Wis. Stat. ch. 977 of the Wisconsin Statutes establishing the Office of the State Public Defender “to deal with the appointment of counsel for indigent defendants.” Pirk, 175 Wis.  2d at 506. The second avenue emerges only after a defendant has been found ineligible by the SPD and rests in the inherent power of the court. See State v. Dean, 163 Wis.  2d 503, 512-13, 471 N.W.2d 310 (Ct. App. 1991). If a criminal defendant has been found ineligible by the SPD statutory standards for the appointment of counsel, the trial court may, in its discretion, invoke its inherent authority and appoint counsel at county expense when “the ‘necessities of the case’ and the demands of ‘public justice and sound policy’ require appointing counsel … to protect the defendant’s constitutional right to counsel.” Id. at 513 (citation omitted).

Counsel – Right to - Review of SPD Denial of Representation, § 977.06(4)

State v. Alvernest Floyd Kennedy, 2008 WI App 186

Pro se

Issue/Holding1: ¶11      Kennedy argues that the trial court failed to properly review the SPD’s determination that he did not qualify for the appointment of counsel. In reviewing this issue, the trial court’s findings of fact will not be overturned unless clearly erroneous. See id, 163 Wis.  2d at 511. However, whether Kennedy “was denied a constitutional right is a question of constitutional fact that we review independently.” See id. ¶12      Wisconsin Stat. § 977.06(4) provides in pertinent part that: “A circuit court may review any indigency determination upon its own motion or the motion of the defendant and shall review any indigency determination upon the motion of the district attorney or the state public defender.” In Dean, we addressed the same issue, engaged in statutory construction of the statutes, and determined that under the statute the circuit court’s “‘review [of] any indigency determination’ is limited to determining whether the public defender properly followed the legislative criteria.” Id., 163 Wis.  2d at 511 (citation omitted). The legislative criteria are set forth in detail in Wis. Stat. § 977.07(2). In general, the assessment involves a calculation of whether a person’s liabilities are greater than his/her assets. See id. Issue/Holding2: Circuit court refusal to overturn SPD refusal to appoint counsel, based on defendant’s failure to submit sufficient documentation to make an indigency evaluation is sustained:   ¶15      The circuit court’s finding in this regard is not clearly erroneous. It is the defendant’s burden to submit documentation sufficient and current so that an accurate assessment of financial circumstances can be made. See Buelow, 122 Wis.  2d at 472. Although Kennedy submitted exhibits purporting to show that he does not have any income and is unemployed, he also submitted evidence showing ownership of three properties but failed to document income from the properties. Like the trial court, with only this documentation, we cannot conclude that the SPD erred in rendering its non-indigency determination. Accordingly, we must conclude that the trial court did not err in its review of the SPD determination. Based on the circumstances presented to it, this was the only reasonable determination it could make. [4] Kennedy’s effort to have the circuit court reconsider meets the same fate, largely for the same reason; although he submitted additional documentation, it was incomplete: ¶24      Kennedy then filed a motion with the circuit court, challenging the SPD denial and seeking appointment of counsel. He alleged in the reconsideration motion that the SPD miscalculated his financial status and the trial court erred in relying on the miscalculation. The problem with this argument is that Kennedy failed to submit to the circuit court all the documentation he alleges was filed with the SPD. There is nothing in the record revealing the SPD’s specific calculation, what numbers they used or how they reached their financial ineligibility conclusion. It is Kennedy’s responsibility to make sure that the record contains the necessary information to support his argument. See State Bank of Hartland v. Arndt, 129 Wis.  2d 411, 423, 385 N.W.2d 219 (Ct. App. 1986). Without that information in the record, we assume that the trial court’s determination, based on the SPD’s calculation was correct. See id. (“Given an incomplete record, we will assume that it supports every fact essential to sustain the trial court’s exercise of discretion.”) (citation omitted). Thus, the circuit court did not err in rejecting Kennedy’s arguments on reconsideration relating to the SPD “miscalculation” of his financial status or the circuit court’s reliance thereon.

Counsel – Right to - Defendant Must Cooperate With SPD 1st

State v. Alvernest Floyd Kennedy, 2008 WI App 186

Pro se

Issue/Holding: ¶27      We emphasize that the procedures set forth in Dean by this court suggest that the inherent power of the circuit court shall be exercised to cover situations where a defendant cooperated with the SPD’s financial analysis, was found not to be indigent under the legislative criteria, but based on the individual circumstances of the case, public justice, and sound policy is in fact “indigent.” Id. at 512-14. A defendant may be found ineligible by the SPD, but still demonstrate he/she is unable to retain and pay for private counsel. If that is the case, the circuit court shall consider all relevant information submitted, on a case-by-case basis, to decide whether the defendant truly is indigent and whether counsel should be appointed at county expense. Id. at 514. ¶28      The inherent power of the court should not be invoked when a defendant fails to seek SPD appointment, fails to cooperate with the SPD for the indigency assessment, or fails to submit the required information to make a proper assessment. In other words, the first step for a defendant in seeking appointment of counsel based on inability to pay must be with the SPD. A defendant must fully and timely cooperate with the SPD so that it can make an accurate determination of eligibility. The inherent authority of the circuit court is not intended to replace the SPD appointments. Rather, it is intended to cover those circumstances where a defendant does not satisfy the legislatively created SPD criteria for appointment, but still demonstrates indigency.

Counsel – Right to - Inherent Judicial Authority - Defendant's Burden of Proof

State v. Alvernest Floyd Kennedy, 2008 WI App 186

Pro se

Issue/Holding: Defendant did not satisfy his burden of proving indigency, for purposes of invoking inherent judicial authority to appoint counsel, where he failed to submit information regarding attempts to retain counsel as well as information relative to rental property, ¶18.

Right to Counsel - Inherent Judicial Authority to Appoint - Indigency Determination - Use of Federal Poverty Guidelines

State v. Jose Nieves-Gonzalez, 2001 WI App 90, 242 Wis. 2d 782, 625 N.W.2d 913

Issue: Whether the trial court incorrectly applied federal poverty guidelines in refusing to appoint counsel at county expense, after the defendant failed to qualify under public defender standards.

Holding: Although federal poverty guidelines are not necessarily conclusive, they should be used "as a proper consideration for court-appointed counsel." ¶8. Here, the court considered these guidelines in denying the defendant's request for counsel without a hearing, but made an error (mathematical in nature) in applying them. As a result, the trial court's finding that defendant's income exceeded federal poverty guidelines is clearly erroneous -- in fact, his income is well below guidelines -- and the matter is remanded for a hearing at which the guidelines will be properly applied. ¶¶8-14. The court further indicates: "We note that, even including spousal income, Nieves-Gonzalez's household income is still well below the federal poverty guidelines. Unless, upon further inquiry by the trial court, evidence comes to light showing that Nieves-Gonzalez has additional resources available, it would be difficult to conclude that he is not entitled to court-appointed counsel." ¶14.

Right to Counsel - Judicial Appointment, Discretion to Continue on Appeal

Juneau County DHS v. James B., 2000 WI App 86, 234 Wis. 2d 406, 610 N.W.2d 144

For Appellant; James L. Boardman; Chris R. Velnetske

Issue: Whether judicial appointment of counsel in a CHIPS case necessarily terminates after disposition, or may be continued for appeal.

Holding: Judicial appointment of counsel in a CHIPS case doesn't automatically terminate upon disposition, the circuit court retaining authority to continue the appointment for purposes of appeal. Whether the appointment should be continued is a matter of discretion, implicating the factors in Joni B. v. State, 202 Wis. 2d 1, 549 N.W.2d 411 (1996). Because the trial court failed to apply this test, the matter is remanded so that it can do so. ¶¶8-10 (Note: § 809.85, which continues on appeal a trial-level judicial appointment of counsel until the court of appeals relieves counsel, isn't applicable here, "because no appeal has yet been commenced." ¶5.)

Right to Counsel - Judicial Appointment - Continuation on Appeal

In re Paternity of Roberta Jo W.: Roberta Jo W. v. Leroy W., 218 Wis.2d 225, 578 N.W.2d 185 (1998), on certification.

Holding: The second issue is whether the circuit court erred in terminating court-appointed counsel upon the filing of a notice of appeal. We hold that after a notice of appeal was filed, the case was within the jurisdiction of the court of appeals, and the circuit court no longer had discretion to terminate court-appointed counsel.

Right to Change of Counsel – Inability to Communicate Due to Client’s Severe Hearing Impairment

State v. Dwight Glen Jones, 2007 WI App 248

For Jones: Ellen Henak, SPD, Milwaukee Appellate

Issue/Holding:  ¶13   Although an indigent defendant does not have the right to pick his or her trial lawyer, Mulkovich v. State, 73 Wis. 2d 464, 474, 243 N.W.2d 198, 203–204 (1976) (“This court has frequently said that, except in cases of indigency, a defendant may have whatever counsel he chooses to retain and may refuse to accept the services of counsel he does not want.”), the indigent defendant is entitled to a lawyer with whom he or she can communicate, State v. Lomax, 146 Wis. 2d 356, 359, 362, 432 N.W.2d 89, 90, 92 (1988); anything less would make a mockery of the hallowed right to effective legal representation. The ability-to-communicate assessment is left to the reasoned discretion of the trial court. … Given what the trial court here knew, namely that Jones apparently had profound hearing problems, its inquiry into why Jones was frustrated with his lawyer’s interaction with him was inadequate to make an effective record as to why it denied his lawyer’s motion to withdraw, especially in light of the lawyer’s admission that, apparently, other than first meeting his client at the preliminary examination(!), he only met with Jones once—a meeting that, as noted, Jones told the trial court was not “a good meeting.” ¶14   As we have seen, the trial court gave two reasons at the end of the hearing on the motion of Jones’s lawyer to deny the lawyer’s request to be allowed to withdraw: (1) Jones was not entitled to pick his lawyer; and (2) Jones was not being denied his Sixth Amendment right to counsel. In light, however, of the trial court’s awareness of Jones’s apparent substantial hearing problems and Jones’s repeated and non-dilatory pleas to get the lawyer off the case, these reasons are conclusory at best and do not meet the Lomax-recognized duty to make sufficient inquiry. See ibid. The trial court’s explanations for denying Jones’s postconviction motion were little better. … ¶19   Jones submitted substantial scientific and other evidence with his postconviction motion attesting to the difficulties persons like him have in communicating with the non-hearing-impaired, and, also that those who are not hearing-impaired may overestimate their ability to communicate with those who are. He is entitled to try to prove this at what Lomax recommends is the preferred approach—a retrospective evidentiary hearing. See id., 146 Wis. 2d at 365, 432 N.W.2d at 93. We reverse the trial court’s order denying without an evidentiary hearing Jones’s motion for postconviction relief, and remand this matter to the trial court with instructions to hold that hearing, giving Jones sufficient leeway to prove, by expert testimony if necessary, his contention that he had an irresolvable breakdown in communications with his trial lawyer. If, at the conclusion of that hearing, the trial court determines that was there was a substantial breakdown in communications between Jones and his lawyer, he is to be given a new trial, which is the relief Jones seeks on this appeal. The court, incidentally, exhorts the SPD to scrutinize attorney performance closely, albeit with an eye toward the limitations imposed by scarce reources, ¶5 n. 1: "We recognize that the limitation of resources makes monitoring of appointed counsel by the State Public Defender impossible. However, as appointing authority, it is also reasonable to expect a meaningful response to and inquiry regarding complaints about the appointed lawyer’s conduct that, if true, could seriously prejudice the client’s right to meaningful representation." The court also uses a punctuation mark to express apparent shock at counsel’s late entry into the case, ¶13:“(first meeting his client at the preliminary examination(!).”

Right to Counsel - Change of Counsel State v. Derryle S. McDowell, 2004 WI 70, affirming 2003 WI App 168, 266 Wis. 2d 599, 669 N.W.2d 204 For McDowell: Christopher J. Cherella Amici: Keith A. Findley, John A. Pray, Frank Remington Center & WACDL Issue/Holding: ¶66. The final issue we consider is whether the circuit court erred in failing to permit McDowell new counsel. In situations involving appointment of new counsel, a circuit court's exercise of discretion is triggered by a defendant's presentation of a substantial complaint that could be interpreted as a request for new counsel. State v. Kazee, 146 Wis. 2d 366, 371, 432 N.W.2d 93 (1988). When a substantial complaint is made, the trial judge should inquire whether there are proper reasons for substitution. Id. (citations omitted). … ¶70. Upon examining the record, we note that defense counsel did not actually move to withdraw on the first day of trial, even though he acknowledged being "fired." Moreover, we recognize that McDowell himself made no request for new counsel, even though he spoke to the circuit court, confirming his understanding that he would benefit by cooperating with his attorney. ¶71. Still, like the court of appeals, we "do not endorse the trial court's quick 'hogwash' reaction." … ¶72. Thus, we employ the factors set forth in State v. Lomax to determine whether withdrawal of counsel and the appointment of new counsel was warranted under the circumstances of this case…. ¶73. In addressing the first Lomax factor, we acknowledge that the circuit court did not conduct a colloquy to more fully develop the substance of McDowell's complaint. However, as the State notes, this must be set against "the fact that neither [defense counsel] nor McDowell offered any evidence of incompetency or of a conflict that made counsel's continued representation untenable." In light of the record, we agree that the circuit court cannot reasonably be faulted for failing to make a full inquiry. ¶74. The second Lomax factor supports upholding the circuit court's decision. We have previously noted that "defendants in criminal cases often attempt to secure last-minute substitution of counsel to delay the trial, and the practice has 'plagued' the criminal courts in Milwaukee county." Kazee, 146 Wis. 2d at 373. Given the number of adjournments in this case, along with the lack of clear expression on the part of both defense counsel and McDowell, it is understandable why the circuit court rejected McDowell's eleventh-hour attempt to fire counsel. ¶75. Finally, the third Lomax factor also favors the circuit court. The record does not support that the alleged conflict between McDowell and defense counsel was so great that it resulted in a total lack of communication, or prevented an adequate defense. Indeed, as the State observes, it seems likely that the court's remarks to McDowell regarding the advisability of cooperating with counsel persuaded him to communicate with counsel. The fact that McDowell disagreed with his attorney over the presentation of his testimony does not, in our view, automatically create "an irreconcilable conflict which leads to an apparently unjust verdict." State v. Wanta, 224 Wis. 2d 679, 703, 592 N.W.2d 645 (Ct. App. 1999). Note that this is an unsettled area under United States Supreme Court caselaw, which means that 2254 habeas invokes different considerations, e.g., Plumlee v. Masto, 512 F.3d 1204 (9th Cir 2008 en banc) (“Plumlee has cited no Supreme Court case — and we are not aware of any — that stands for the proposition that the Sixth Amendment is violated when a defendant is represented by a lawyer free of actual conflicts of interest, but with whom the defendant refuses to cooperate because of dislike or distrust. Indeed, Morris v. Slappy is to the contrary.”) This en banc decision overturned a panel decision, 465 F.3d 910, which, though no longer viable as a matter of federal habeas principles, nonetheless probably has salience for local practice, stressing, among other things: On the duty of a trial court to appoint substitute counsel in the face of irreconcilable conflict or complete breakdown in communication between counsel and client, there is near-unanimity among the circuits. See United States v. Mullen, 32 F.3d 891, 897 (4th Cir. 1994) (holding that the trial court abused its discretion in refusing to appoint substitute counsel where “there was a total breakdown in communication between [counsel and client]” that “ma[de] an adequate defense unlikely”); Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991) (explaining that a defendant is entitled to a substitution of counsel where there exists “a conflict of interest, an irreconcilable conflict, or a complete breakdown in communication between the attorney and the defendant”); United States v. Padilla, 819 F.2d 952, 955 (10th Cir. 1987) (same); Wilson v. Mintzes, 761 F.2d 275, 280 (6th Cir. 1985) (same); United States v. Welty, 674 F.2d 185, 188 (3d Cir. 1982) (same); United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973) (same); United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972) (same); see also United States v. Zillges, 978 F.2d 369, 372 (7th Cir. 1992) (in evaluating motion to substitute counsel, court must consider several factors, including “whether the conflict between the defendant and his counsel was so great that it resulted in a total lack of communication preventing an adequate defense”); United States v. Allen, 789 F.2d 90, 92 (1st Cir. 1986) (same); cf. United States v. Graham, 91 F.3d 213, 221 (D.C. Cir. 1996) (“A defendant [has] the right to effective representation by appointed counsel, and this right may be endangered if the attorney-client relationship is bad enough.”).7 These “convergent holdings” (all but one prior to the Nevada Supreme Court’s 1995 decision on Plumlee’s direct appeal) “reflected and applied clearly established federal law as determined by the U.S. Supreme Court” as of the time of the relevant state court decision. Robinson, 360 F.3d at 1059. On a different but related point: where there has been a violation of the defendant's right to representation by counsel of choice, the majority of federal courts apply a rule of automatic reversal. U.S. v. Gonzales-Lopez, 8th Cir No. 03-3487, 3/8/05. But contrast, Rodriguez v. Chandler, 382 F.3d 670 (7th Cir. 2004) (correct test is adverse-effect standard used in conflict of interest analysis).

Choice of (Retained Counsel), Generally

State v. Anthony L. Prineas, 2009 WI App 28, PFR filed 3/6/09

For Prineas: Raymond M. Dall'osto, Kathryn A. Keppel

Issue/Holding: ¶14      In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the U.S. Supreme Court explained that the right to counsel derived from the Sixth Amendment includes “the right of a defendant who does not require appointed counsel to choose who will represent him.” Id. at 144. “[T]he  Sixth Amendment right to counsel of choice … commands, not that a trial be fair, but that a particular guarantee of fairness be provided—to wit, that the accused be defended by the counsel he [or she] believes to be best.” Id. at 146. However, Gonzalez-Lopez makes clear that the right to counsel of choice is not unlimited: We have recognized a trial court’s wide latitude in balancing the right to counsel of choice against the needs of fairness.… The court has, moreover, an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them. Id. at 152 (citations omitted). Thus, under the Sixth Amendment, a defendant has only a presumptive right to employ his or her chosen counsel.  See Wheat, 486 U.S. at 159. ¶15      Recently, the United States Court of Appeals, Seventh Circuit, affirmed this presumption, stating that under the Sixth Amendment, a non indigent defendant has a “right to select, and be represented by, one’s preferred attorney; thus, trial courts must recognize a presumption in favor of a defendant’s counsel of choice.” Carlson v. Jess, 526 F.3d 1018, 1024 (7th Cir. 2008). [2] Furthermore, the Fourteenth Amendment prevents a court from arbitrarily or unreasonably denying a defendant the right to obtain a continuance.  Id. at 1024-25. Accordingly, the precise issue presented by Prineas is whether the circuit court’s denial of his motion for substitution and a continuance was arbitrary or unreasonable and therefore violated his constitutional rights. Prineas asserts that, applying Carlson, the circuit court’s denial was error.

Substitution of (Retained Counsel), Contingent on Continuance

State v. Anthony L. Prineas, 2009 WI App 28, PFR filed 3/6/09

For Prineas: Raymond M. Dall'osto, Kathryn A. Keppel

Issue/Holding: The trial court’s refusal to allow Prineas to substitute one retained counsel for another absent “an extraordinary reason,” where substitution would necessitate continuance of the scheduled trial over objection of the complainant and her family, is upheld as a proper exercise of discretion; Carlson v. Jess, 526 F.3d 1018 (7th Cir. 2008), distinguished: ¶24      We reach a different conclusion here. When it made the decision to deny Prineas his counsel of choice, the circuit court properly balanced Prineas’ request against the public’s interest in the prompt and efficient administration of justice. See Lomax, 146 Wis. 2d at 360. Several factors weigh in favor of the court’s exercise of its discretion, for example: Prineas did not specify the length of delay that would be required; he did not dispute his current counsel’s ability to try the case; the court considered the inconvenience to the court and the concerns of the victim; and Prineas provided no reason for substitution and the accompanying delay. See id.; see also State v. Wedgeworth, 100 Wis. 2d 514, 521, 302 N.W.2d 810 (1981) (court may assume that if there is a compelling reason existing why counsel cannot provide adequate representation it would have been mentioned). ¶25      We acknowledge that on appeal Prineas presents an extensive argument that mirrors Carlson’s complaints of ineffective assistance of counsel and a breakdown in communication. Those arguments, however, are raised for the first time on appeal and will not be considered.  See Ungar v. Sarafite, 376 U.S. 575, 589 (1964) (on review of circuit court’s decision to deny motion to replace existing retained counsel with new retained counsel, the appellate court should consider “the reasons presented to the trial judge at the time the request [was] denied”). If Prineas had concerns about the quality of representation he was receiving prior to trial, he had the opportunity to so advise the court at the motion hearing. The record demonstrates that the circuit court allowed both attorneys to speak in support of Prineas’ motion, but neither provided a substantive response. As the circuit court notes in is postconviction order, “How could the court use the … balancing test that the court is invited to do by [Prineas] when the court was given nothing to balance from the defendant’s side?” The trial court was explicit: “The court stated that it would not grant a continuance so close to the trial date unless Prineas or his counsel could ‘give [the court] some extraordinary reason other than just a simple desire to change [attorneys] at this late date,’” ¶4. (¶21: “not something that I would grant except in an extraordinary reason”.) Try as you might, you won’t see “extraordinary reason” among the factors informing discretion, ¶13. And, curiously, the court of appeals says nothing about the distorting effect of this onerous, extrajudicial requirement. Put it like this: a trial court tells you that to get what you want you have to come up something “extraordinary”; you can’t, and so you say little (why bother with a futile exercise?); and then, on appeal, the court of appeals says it’s your fault you didn’t say anything. The court’s rhetorical question—“How could the court use the … balancing test that the court is invited to do by [Prineas] when the court was given nothing to balance from the defendant’s side?”—has it quite backward. How could Prineas give the court something to balance when the court announced it was improperly tilting the scales? Even so, when all is said and done, the only justification for refusing a continuance seems to be the complainant’s desire that the case “be done so she could get on with her life,” ¶4. Is that an appropriate basis to deny substitution of counsel? Interesting question; too bad the court didn’t forthrightly confront it. Instead, the court appears to be more interested in limiting Carlson to its facts. Coincidence that 2 of the 3 judges on Prineas’ panel were on Carlson’s (overturned) panel? You be the judge.

Retained Counsel, Choice of, Generally

State v. Todd E. Peterson, 2008 WI App 140

For Peterson: Ralph Sczygelski

Issue/Holding: ¶7        … In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the Supreme Court explained that the right to counsel derived from the Sixth Amendment includes “the right of a defendant who does not require appointed counsel to choose who will represent him.” Id. at 144. … However, Gonzalez-Lopez makes clear that the right to counsel of choice is not unlimited …. Thus, under the Sixth Amendment, a defendant has only a presumptive right to employ his or her own chosen counsel. See Wheat v. United States, 486 U.S. 153, 159, 164 (1988). ¶8        Our supreme court addressed disqualification of a defendant’s retained counsel of choice in State v. Miller, 160 Wis. 2d 646, 467 N.W.2d 118 (1991). Miller makes clear that the circuit court has the discretion to disqualify a defendant’s counsel of choice for a conflict of interest even when the defendant will voluntarily waive the conflict. Id. at 650. Miller reconciles the competing policy interests of a defendant’s Sixth Amendment right to representation by counsel of choice with countervailing interests in maintaining the integrity of the judicial system. See id. at 652-53. Miller also confirmed the principle espoused in Wheat, that a presumption favoring the defendant’s choice exists. See Miller, 160 Wis. 2d at 652; Wheat, 486 U.S. at 164.

Right to Retained Postconviction Counsel of Choice - Based on 6th Amendment

State v. Todd E. Peterson, 2008 WI App 140

For Peterson: Ralph Sczygelski

Issue/Holding: A defendant has a 6th amendment-based right to retained postconviction counsel of choice: ¶9        The State correctly counters that Miller and Gonzalez-Lopez involved the right to counsel of choice at trial. Here, Peterson was postconviction, at a Machner proceeding. … ¶10      Martinez and Tamalini provide no guidance on the question presented. The issue here arose not on direct appeal under Wis. Stat. § 808.03, but rather when Peterson pursued postconviction relief in the circuit court. See Wis. Stat. § 808.01(1) (“appeal” means review in an appellate court). ¶11      We have located no Wisconsin case directly on point; that is, addressing the right to be represented by retained counsel of choice during postconviction proceedings in the circuit court. Neither party has offered any mandatory authority for deciding the question. Nonetheless, sufficient guidance exists in Sixth and Fourteenth Amendment case law to indicate that a person has a qualified right to counsel of choice. … It is apparent from