On Point: A. Right to counsel

State v. Terrance Lavone Egerson, 2018 WI App 49; case activity (including briefs)

Egerson told the trial court that his lawyer was “totally deficient” and declared a “total breakdown in communication.” The trial court agreed to let Egerson have a new lawyer, but as the parties and the court discussed logistics, he said: “let me represent myself and have co-counsel.” When that was ignored, Egerson said: “let me represent myself and have no counsel.” The court of appeals holds that this was not clear and unequivocal request to go pro se. Thus, the trial court had no duty to conduct the colloquy required by State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997). If Egerson’s words don’t satisfy the test, what words would? Perhaps SCOW will tell us.

Scott Schmidt v. Brian Foster, 7th Circuit Court of Appeals No. 17-1727, 5/29/18, reversing Schmidt v. Pollard, No. 13-CV-1150 (E.D. Wis. Mar. 20, 2017); reversed en banc 12/20/18

A criminal defendant is entitled to counsel at all “critical stages” of the case. You probably think that a hearing, before a murder trial, that determines whether the accused will get to present his only defense counts as such a “critical stage.” The Wisconsin Court of Appeals, however, “easily reject[ed]” that notion in this (published) case. The Seventh Circuit now disagrees, saying the Wisconsin decision “unreasonably applied Supreme Court precedent and, frankly, ignored reality.”

The latest edition of the Volokh Conspiracy analyzes a recent 12-4 en banc decision by the 6th Circuit decision in which the majority answers the question above “no” based on current precedent. However, a “concurrence dubitante” argues that this conflicts with The Founders’ intent when they drafted the 6th Amendment. Another concurring opinion calls on SCOTUS to change its precedent. A dissent argues that based on the facts of this case,

State v. Jack M. Suriano, 2017 WI 42, affirming an unpublished court of appeals opinion, 2015AP959-CR; case activity (including posts)

In Wisconsin, a defendant can lose his or her right to counsel in two ways: waiver and forfeiture. Waiver is voluntary and requires a colloquy with the defendant. Forfeiture does not.

Three different attorneys accepted State Public Defender (SPD) appointments to represent Jack Suriano. Each, in quick succession, withdrew from representation. After granting the third attorney’s motion to withdraw, the court found that Suriano had forfeited his right to counsel.

State v. Elbe, 2016AP2012-2013, 1/26/17, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs)

The Elbes were charged with disorderly conduct back in 1996. They requested the appointment of counsel, but the trial court found that they were not indigent.  This caused them to plead no contest. Twenty years later they moved to vacate their convictions arguing that the 1996 decision violated their 6th Amendment right to counsel. They lost in the trial court and in the court of appeals.

Review of an unpublished court of appeals decision; case activity (including briefs)

Issue (composed by On Point)

Did the circuit court err in holding that Suriano forfeited his Sixth Amendment right to counsel after three appointed attorneys withdrew from representing him because the court did not warn Suriano that forfeiture was a possibility and did not advise Suriano of the difficulties and dangers of self-representation?

Joseph J. Jordan v. Randall R. Hepp, 7th Circuit Court of Appeals No. 14-3613, 2016 WL 4119862, 8/3/16

Jordan claims the Wisconsin courts unreasonably applied clearly established federal law when they held that he was not denied the right to represent himself and that his trial lawyer was not ineffective for failing to object to the prosecutor’s improper vouching for a police witness’s credibility. The Seventh Circuit okays the state courts’ decision on self-representation but orders a hearing on Jordan’s ineffective assistance claim.

Rashaad A. Imani v. William Pollard, 7th Circuit Court of Appeals No. 14-3407, 2016 WL 3434673, 6/22/16

Imani tried to exercise his right to self-representation under Faretta v. California, 422 U.S. 806 (1975), but the Wisconsin trial judge prevented him from doing so. In State v. Imani, 2010 WI 66, 326 Wis. 2d 179, 786 N.W.2d 40, the Wisconsin Supreme Court held that the trial judge properly found Imani wasn’t competent to represent himself and that he hadn’t made a knowing and voluntary choice to represent himself. The Seventh Circuit now holds that even under the stringent standard for federal habeas relief, SCOW’s decision was wrong, and Imani is entitled to a new trial.

Sila Luis v. United States, USSC No. 14-419, 2016 WL 1228690 (March 30, 2016), vacating and remanding U.S. v. Luis, 564 Fed. Appx. 493 (11th Cir. 2014) (per curiam) (unpublished); Scotusblog page (including links to briefs and commentary)

The question presented in this case is whether the pretrial restraint of a criminal defendant’s legitimate, untainted assets—that is, assets not traceable to a criminal offense—needed to retain counsel of choice violates the Sixth Amendment. A majority of the U.S. Supreme Court answers “yes,” though for different reasons.

State v. Joseph William Netzer, 2015AP213, District 4, 10/29/15 (one-judge decision; ineligible for publication); case activity

¶1     …. Netzer argues on appeal that he received ineffective assistance of counsel, was denied his constitutional right to a jury trial, and that the results of his blood tests were impermissibly admitted into evidence. We conclude that Netzer possessed no constitutional right to effective assistance of counsel in a civil proceeding,