On Point: A. Right to counsel

State v. Richard M. Arrington, 2022 WI 53, reversing a published court of appeals opinion, 2021 WI App 32, 7/1/22, case activity (including briefs)

In a majority opinion written by Roggensack, SCOW holds that the State did not violate Arrington’s 6th Amendment right to counsel by using a jailhouse snitch to help cinch a 1st-degree homicide conviction against him. Thus, Arrington’s lawyer did not perform deficiently by failing to file a suppression motion. Dallet wrote a concurrence joined by A.W. Bradley and Karofsky arguing that a 6th Amendment violation did occur and that Arrington’s lawyer performed deficiently by not moving to suppress the snitch evidence. The concurrence agrees, however, that Arrington was not prejudiced by counsel’s conduct.

State v. Nhia Lee, 2019AP221-CR, petition dismissed as improvidently granted, 5/24/22; case activity (including briefs)

SCOW presumably took this case in order to address one or both of these issues: (1) whether a circuit court must appoint counsel at the county’s expense when the SPD is unable to do so within 10 days of the defendant’s initial appearance; and (2) whether Lee was denied the right to counsel, due process and a speedy trial as he sat in jail for over 100 days waiting for a lawyer. After briefing and oral argument, 5 justices voted to dismiss his petition as improvidently granted.

State v. Percy Antione Robinson, 2020AP1728-CR, certification granted 5/18/22; case activity (including briefs); ; remanded  5/10/23

Question presented:

The 4th Amendment requires that a judicial officer determine probable within 48 hours of a warrantless arrest. County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991). Milwaukee County complies with this mandate by having the judicial officer review a sworn affidavit from law enforcement and set initial bail. This procedure does not require the accused to appear in person. The judicial officer simply conducts a paper review and completes a CR-215 form. Does this procedure trigger the accused’s right to counsel?

State v. Percy Antione Robinson, 2020AP1728-Cr, certification filed 4/19/22, District 1; case activity (including briefs)

Whether Milwaukee County’s CR-215 procedure for determining probable cause triggers an accused’s 6th Amendment right to counsel for any subsequent “critical stage” of the legal proceeding?

State v. Daimon Von Jackson, Jr., 2019AP2383, petition for review of granted 3/21/22; dismissed as improvidently granted 5/8/23;  case activity (including briefs)

Issues (from Von Jackson’s PFR):

1.    Whether a defendant is prejudiced when trial counsel does not communicate with him before his homicide trial.

2.    Whether a defendant should be allowed to obtain new counsel when his current counsel is deficient.

State v. Daimon Von Jackson, Jr., 2019AP2383, 12/29/21, District 2 (not recommended for publication) case activity (including briefs); petition for review of granted 3/21/22; dismissed as improvidently granted 5/8/23

Jackson admitted being involved in a planned robbery that ended in the shooting death of its target. He said–and eyewitness testimony and physical evidence corroborated–that he wasn’t the shooter; instead he said he was the lookout. The state charged him with felony murder, armed robbery and being a felon in possession of a gun. Eventually, he entered a plea to second-degree reckless homicide. He says this plea came about because his trial lawyer, by lack of communication or preparation for trial, left him no choice–and the circuit court refused to allow him to dismiss that lawyer.

Nelson Garcia, Jr. v. Brian Foster, 20-CV-335 (E.D. Wis. 11/9/21).

Garcia challenged his robbery conviction on two grounds. (1) He was denied his right to counsel at a post-arrest police line up. (2) He was denied his right to go pro se at trial. While habeas wins are rare, what’s most remarkable is how blatantly the Wisconsin Court of Appeals violated SCOTUS precedent on both issues. To top that, SCOW granted review and then split 3-3 allowing the court of appeals decision to stand. Now, at long last, the Eastern District grants Garcia the relief SCOTUS requires.

State v. Robert Daris Spencer, 2018AP942-CR, petition for review, and petition for cross review, of an unpublished court of appeals decision, both granted 8/13/21; case activity (including briefs)

Issues presented (composed by On Point from the PFR and cross PFR)

1.  Was the circuit court’s ex parte voir dire and removal of a juror during trial a structural error requiring automatic reversal, or is it subject to harmless error analysis?
2. Did the circuit court improperly consider the race of the defendant and the witnesses in deciding to dismiss juror?
3. Is a defendant entitled to a postconviction hearing on an ineffective assistance of counsel claim when the record conclusively shows the claim should be denied?

State v. Nhia Lee, 2019AP221-CR, petition for review granted 5/19/21; case activity (including briefs)

Issues:

Whether a circuit court is required to appoint counsel at the county’s expense when the SPD is unable to do so within 10 days of the defendant’s initial appearance?

Whether Lee’s rights to due process, to counsel, and to a speedy trial were violated by his protracted pretrial confinement as he waited for the State Public Defender to find counsel for him.

State v. Richard Michael Arrington, 2021 WI App 32; review granted 9/14/21, reversed, 2022 WI 53; case activity (including briefs)

Arrington was being held at the Brown County Jail for 1st-degree homicide when another inmate, Miller, began chatting with him about his case. Turns out Miller was a snitch for State. With the assistance of police, Miller recorded his conversations with Arrington. Then the State used Arrington’s statements to obtain a homicide conviction. The court of appeals held that the State’s use of the snitch violated Arrington’s 6th Amendment right to counsel, and his trial lawyer was ineffective for failing to move to suppress the evidence.