On Point: A. Right to counsel

State v. Jack M. Suriano, 2017 WI 42, affirming an unpublished court of appeals opinion, 2015AP959-CR; case activity (including posts)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Review of an unpublished court of appeals decision; case activity (including briefs)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

State v. Ennis Lee Brown, 2015AP522-CR, District 1, 10/9/15 (not recommended for publication); case activity (including briefs)

The 14½-month delay in trying Brown didn’t violate his right to a speedy trial, as “all of the delays are attributable to the defense, and most are attributable to Brown’s poor behavior and inability to work with his assigned counsel.” (¶56). At the same time, the trial court didn’t err in allowing Brown to proceed pro se at the start of trial, as Brown’s “poor behavior and inability to work with his assigned counsel” don’t show Brown was incompetent to represent himself.

Wayne Kubsch v. Ron Neal, 7th Circuit Court of Appeals No. 14-1898, 8/12/15

After being convicted of murdering his wife, her son, and her ex-husband, Kubsch was sentenced to death. He challenged his conviction and sentence in a federal habeas proceeding on three grounds: (1) the Indiana trial court excluded evidence of a witness’s exculpatory hearsay statement to police; (2) his trial counsel was ineffective in seeking admission of the witness’s hearsay statement; and (3) his waiver of counsel and choice to represent himself at the sentencing phase of his trial were not knowing and voluntary. The court, over a dissent by one judge as to the first and second claims, rejects Kubsch’s arguments.

Laderian McGhee v. Michael A. Dittmann, 7th Circuit Court of Appeals No. 14-1763, 7/22/15

The Wisconsin Court of Appeals reasonably applied federal law in rejecting McGhee’s claim that he was denied the right to self-representation under Faretta v. California, 422 U.S. 806 (1975).