On Point: a. Found

Larry H. Dunn v. Cathy Jess, 7th Circuit Court of Appeals No. 20-1168 (Nov. 24, 2020)

Dunn was charged with felony murder and other offenses based on the fact he had struck the victim, who was later found dead from a head injury. In a rare case that clears the high hurdles of both AEDPA and Strickland v. Washington, 466 U.S. 668 (1984), the Seventh Circuit holds his trial lawyer was ineffective for failing to call an expert witness to support his defense that his acts did not cause the victim’s death.

State v. Pedro R. Mendoza, III, 2018AP2325-Cr,10/6/20,  District 1 (not recommended for publication); case activity (including briefs)

A jury convicted Mendoza of 1st degree recklessly endangering safety and 1st degree endangering safety when he shot into a car occupied by H.V. and M.M.C. Mendoza claimed his trial counsel was ineffective for failing to: (1) seek exclusion of his history with the Latin Kings, (2) seek admission of evidence that H.V. and M.M.C. had previously intimidated witnesses and conspired to falsify testimony; and (3) introduce expert testimony regarding his PTSD to help show that he shot in self-defense. The circuit court ordered a Machner hearing, but denied relief. The court of appeals issued a rare reversal on all 3 ineffective assistance of counsel claims and remanded the case for a new trial.

Michael Gilbreath v. Dan Winkleski, Case No. 19-cv-728-jdp (W.D. Wis. Aug. 4, 2020)

Witness credibility was the key issue at Gilbreath’s trial, and his counsel’s failure to present evidence that would have undermined [the complaining witness’s] credibility and bolstered Gilbreath’s defense deprived Gilbreath of a fair trial. The Wisconsin Court of Appeals unreasonably concluded that the failure to present the credibility evidence was a matter of reasonable trial strategy and that the evidence was merely cumulative. Gilbreath is entitled to habeas relief.

State v. Desmond Myers LaPean, 2019AP1448, 7/14/20, District 3 (not recommended for publication); case activity (including briefs)

LaPean pleaded to a sexual assault of a child with an agreement that the state would cap its recommendation at 10 years of initial confinement and 10 of extended supervision. But at sentencing, the state first recommended 12 and 12. After defense counsel’s objection, the state instead requested 10 and 14. Counsel didn’t notice the second breach, but the prosecutor eventually did, telling the court the agreement was for 10 and 10. The court gave 12 and 10.

State v. Ryan C. Diehl, 2020 WI App 16; case activity (including briefs)

At Diehl’s trial for operating with a blood-alcohol content exceeding .02, the state asked the arresting officer and Diehl himself multiple questions that invited the jury to infer he had multiple OWI convictions. Because these questions were irrelevant and unfairly prejudicial, trial counsel was ineffective for failing to object to them, and Diehl is entitled to a new trial.

Terez Cook v. Brian Foster, Warden, 7th Circuit Court of Appeals No. 18-2214, 1/29/2020

Pursuing a federal writ of habeas corpus is always a long shot; in non-capital cases fewer than 1% of petitions are successful. Terez Cook gets it done here, convincing the Seventh Circuit his lawyer was ineffective at his trial for a home-invasion robbery (and that the Wisconsin court of appeals’ decision to the contrary was not just wrong, but unreasonable). The federal court is puzzled by a few aspects of our state court’s denial of Cook’s claims. But the thing that seems to push that denial over the line into unreasonableness–AEDPA‘s stringent requirement for habeas relief–is that it got a crucial fact wrong. The state court’s opinion relies on a confession by Cook–a confesssion for which there’s apparently no evidence. How did our court go astray? Well, the state described the (non-existent) confession in its brief, and then Cook’s direct-appeal counsel apparently didn’t check the facts, and neither did the court of appeals.

Hatem M. Shata v. Denise Symdon, No. 16-CV-574 (E.D. Wis. Dec. 12, 2018)

Shata’s case was one of two our supreme court decided on the same day–both held counsel not ineffective for failing to give accurate advice on immigration consequences. You can see our prior post for the facts and our analysis of those decisions. Basically, counsel told Shata that pleading to the charged drug count would carry a “strong chance” of deporation, when in fact deportation was mandatory. Unlike our supreme court, the federal court now says that this wasn’t good enough–and further, that the supreme court’s conclusion that it was good enough was an unreasonable application of the law that SCOTUS clearly established in Padilla v. Kentucky, 559 U.S. 356 (2010).

State v. Brian D. Frazier, 2017AP1249-CR, District 4, 8/2/18 (not recommended for publication); case activity (including briefs)

Frazier agreed to drive himself to the police station to answer some questions and was assured when the questioning began that he was not under arrest and did not have to answer questions. But the initial non-custodial encounter was transformed into custody for purposes of Miranda by the officer’s subsequent words and actions, triggering the need for the Miranda warning.  The officer never read Frazier the warning, so the confession he gave must be suppressed.

State v. Tanya Lynn Schmit, 2017AP871-CR, District 3, 7/31/18 (one-judge decision; ineligible for publication); case activity (including briefs)

Schmit was charged with OWI. She told her trial lawyer there were two witnesses who would support her defense that she wasn’t the driver, but trial counsel didn’t interview the witnesses or call them at trial. Trial counsel’s failure constitutes deficient performance and the deficiency was prejudicial.

State v. Gerrod R. Bell, 2018 WI 28, 4/10/18, affirming an unpublished court of appeals opinion, 2015AP2667-2668-CR; case activity (including links)

A defendant is presumed innocent until the State proves him guilty beyond a reasonable doubt. That’s what the Constitution says. Yet, in this child sexual assault case, the State cleverly told jurors that they could not acquit the defendant unless they believed his accusers had lied about the alleged assaults and unless they had evidence of the victims’ motive for lying.  Bell argued that this prosecution strategy impermissibly shifted the burden of proof to him. In a 3-1-1 opinion, SCOW approved the strategy and ruled against him.