On Point: 7. Ineffective assistance

Waukesha County v. S.L.L., 2019WI66, affirming an unpublished court of appeals opinion, 2017AP1468; 6/12/19; case activity

This 4-3 decision is alarming. Waukesha County petitioned to recommit S.L.L., a homeless person, but failed to serve her with notice of the hearing because it had no idea where she was. Since she was not served, she didn’t appear for the hearing. The circuit court entered a default recommitment and forced medication order in her absence. SCOW says that is A-Okay.

Winnebago County v. J.M., 4/18/18, 2018 WI 37, affirming an unpublished court of appeals opinion, 2016AP619, case activity.

This opinion will interest lawyers who handle Chapter 51 cases and appellate lawyers of all stripes. It establishes that persons undergoing Chapter 51 mental commitments are entitled  to the effective assistance of counsel and formally adopts the Strickland test for ineffective assistance. It further holds that, due to the overwhelming evidence of dangerousness in this case, J.M. was not prejudiced when his counsel failed to object to him appearing before the jury wearing prison clothes accompanied by uniformed guards–even as he testified. Of particular interest to appellate lawyers, SCOW granted a motion to strike significant parts of Winnebago County’s oral argument because its lawyer asserted facts outside the appellate record.

Winnebago County v. J.M., 2016AP619, District 2, 11/9/16 (one-judge decision; ineligible for publication), petition for review granted 5/15/17, affirmed, 2018 WI 37; case activity

J.M.’s lawyer didn’t secure civilian clothes for him to wear at his ch. 51 recommitment hearing, so he appeared before the jury in his prison greens (sans the shackles, at least; and the stun belt wasn’t visible to the jury). The court of appeals rejects the claim J.M.’s lawyer was ineffective for failing to make a modest outlay at the local Goodwill to purchase J.M. an outfit without the negative stigmata and for failing to ask for a curative instruction.