On Point blog, page 1 of 9
SCOTUS holds that trial court may limit discussion between defendant and counsel during overnight trial recess about defendant’s testimony for its own sake but not about issues incidental to testimony.
Villarreal v. Texas, USSC No. 24-557, 2/25/2025, affirming Villarreal v. State, 707 S.W.3d 138 (Tex. Crim. App. 2024) ; Scotusblog page (with links to briefs and commentary)
SCOTUS holds that testifying criminal defendant may be prohibited by trial court from conferring with defense counsel during an overnight recess about testimony for its own sake but not about matters incidental to testimony.
COA clarifies state’s burden to show valid waiver of counsel on a collateral attack motion in decision recommended for publication
State v. Robert M. Christianson, 2024AP1884-CR, 2/12/26, District IV (recommended for publication); case activity (including briefs)
Christianson pleaded no contest to OWI 8th after the circuit court rejected his collateral challenges to 3 prior OWI convictions. On appeal, he renews his arguments that the three convictions are invalid because he did not have legal counsel, he did not knowingly, intelligently, and voluntarily (“KIV”) waive his right to counsel, and the court handling the case failed to find that he was competent to proceed without counsel in each case. COA concludes that Christianson made a prima facie showing that he was denied his constitutional right to counsel in all three cases, but the state met its burden to show that he nonetheless validly waived his right to counsel in 2 of the 3 cases, and the circuit court properly found that he was competent to proceed without counsel.
In fact-intensive TPR appeal, COA rejects numerous creative legal arguments and affirms
State of Wisconsin v. D.R.-R.D.J. 2024AP2406, 10/8/25, District II (ineligible for publication); case activity
In an imposingly lengthy opinion involving an interesting choice of counsel claim (among many others), COA rejects arguments that “Diane” was denied her rights to counsel of choice and to the effective assistance of counsel and affirms.
SCOTUS grants cert to determine scope of defendant’s right to discuss matters with counsel during recess in trial testimony.
David Asa Villarreal v. Texas, USSC No. 24-557, certiorari granted 4/7/25
SCOTUS added to its 2025-26 docket this week when it granted the petitioner’s cert. petition to address the following:
Whether a trial court abridges the defendant’s Sixth Amendment right to counsel by prohibiting the defendant and his counsel from discussing the defendant’s testimony during an overnight recess.
COA holds that circuit court erroneously permitted defendant to represent themselves at a competency hearing
State v. L.J.T., Jr., 2024AP1877-CR, 12/12/24, District IV (one-judge decision; ineligible for publication); case activity
In a very unique appeal arising from pretrial competency proceedings, COA holds that the defendant was not competent to exercise the right of self-representation and reverses for a new hearing.
In published decision, COA holds that CR-215 procedure triggers attachment of right to counsel but denies relief given that law was “unsettled”
State v. Percy Antione Robinson, 2020AP1728-CR, 8/6/24, District I (recommended for publication); case activity
In a published decision that criminal practitioners have been waiting on for years, COA holds that a CR-215 probable cause procedure used to satisfy the requirements of Riverside triggers the attachment of the Sixth Amendment right to counsel.
Defense win! Seventh Circuit affirms habeas grant, holds right to counsel attaches when CR-215 form completed
Nelson Garcia, Jr., v. Randall Hepp, No. 21-3268, 4/25/23, affirming Nelson Garcia, Jr. v. Brian Foster
A long line of Supreme Court cases holds that a criminal defendant’s right to counsel attaches when he or she becomes a criminal defendant: when he or she is formally accused of a crime. Most recently, in Rothgery v. Gillespie County, 554 U.S. 191 (2008), the Court applied this rule to conclude that the defendant had the right to counsel when a police officer brought him before a judge and the judge found probable cause, committed him to jail, and set bail. In Milwaukee County, though, when a person is arrested without a warrant, judges routinely find probable cause, order detention, and set bail without seeing the person. As happened in Garcia’s case, an officer presents a judge a form–the CR-215–detailing the basis for suspecting the person; the judge can then check a box indicating that probable cause exists and can also set bond. The form is then distributed to, among others, the person being held.
COA affirms TPR order and holds that claimed structural error requires post-disposition motion and Machner hearing
State v. O.F., 2022AP1703, District 1, 01/18/2023 (one-judge decision; ineligible for publication); case activity
Ultimately, the issue addressed by the court of appeals is whether O.F. received ineffective assistance of counsel where trial counsel was alleged to have “violated his duty of confidentiality and loyalty” to his client. O.F.’s claims were based on multiple statements made by his trial counsel that arguably disclosed confidential information to the court and painted O.F. in a bad light. The court rejects O.F.’s claim primarily because he failed to establish “any prejudice” and also rejects O.F.’s assertions that his IAC claim was structural and thus did not require a post-disposition motion or a Machner evidentiary hearing. (Opinion, ¶¶22-25).
SCOW: trial judge’s in-chambers conversation with ailing juror wasn’t a critical stage of proceedings requiring the presence of defense counsel
State v. Robert Daris Spencer, 2022 WI 56, July 6, 2022, affirming in part and reversing in part an unpublished court of appeals decision; case activity (including briefs)
A majority of the supreme court holds that Spencer had no right to be personally present or even to have counsel present when the trial judge decided to dismiss a juror for cause just before deliberations began because the judge’s interaction with the juror wasn’t a critical stage of the proceedings.
COA rejects IAC claims based on the failure to seek suppression of an in-court identification
State v. Alberto E. Rivera, 2021AP1100, 7/12/22, District 1, (not recommended for publication); case activity, (including briefs)
The court of appeals rejects Rivera’s claims for ineffective assistance of postconviction counsel for failing to raise two claims of ineffective assistance of trial counsel. Rivera challenged trial counsel’s counsel’s failure to seek suppression of an in-court identification because (a) it was tainted by an earlier suggestive “showup” procedure, and (b) his right to counsel was violated during the line-up because his retained counsel was not present for it.