On Point: a. Found

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State v. Gerrod R. Bell, 2018 WI 28, 4/10/18, affirming an unpublished court of appeals opinion, 2015AP2667-2668-CR; case activity (including links)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

State v. Micah Nathaniel Reno, 2016AP1371-CR, District 1 (not recommended for publication); case activity (including briefs)

Reno’s trial lawyer wanted to call A.A. as a witness at trial. But A.A. had a pending case and A.A.’s lawyer told Reno’s lawyer not to talk to her. Thinking he was barred by the ethics rules from talking to a represented person, Reno’s lawyer didn’t attempt to talk to A.A. or call her as a witness. Trial counsel was ineffective because he was not attempting to talk to A.A. about the subject matter of her case, but only about the subject matter of Reno’s case, and therefore counsel wasn’t barred under the rules of ethics from trying to talk to or call A.A. as a witness.

State v. Irvin Perez-Basurto, 2016AP2136, 7/18/2017, District 1 (one-judge decision; ineligible for publication); case activity (including briefs)

Irvin Perez-Basurto was born in Mexico and brought to the United States by his mother when he was 14. He had been approved by the Homeland Security for Deferred Action for Childhood Arrivals status (he is, in common parlance, a “dreamer”) and was thus permitted to remain in this country.

Jae Lee v. United States, USSC No. 16-327, 2017 WL 2694701 (June 23, 2017), reversing Lee v. United States, 825 F.3d 311 (6th Cir. 2016); Scotusblog page (including links to briefs and commentary)

Lee’s lawyer told him he would not be deported if he pleaded guilty to a drug charge. His lawyer was wrong, so he performed deficiently under Padilla v. Kentucky, 559 U.S. 356 (2010). But can Lee establish his lawyer’s indisputably wrong advice prejudiced him, i.e., that he would have gone to trial had he known he would be deported even though he had no real prospect of acquittal? Yes, says a majority of the Supreme Court, rejecting the approach urged by the Government and adopted by some federal circuits.

State v. Lamont Donnell Sholar, 2016AP987, 6/20/17, District 1 (not recommended for publication), petition for review granted 10/17/17, affirmed, 2018 WI 53; case activity (including briefs)

Sholar was charged with 5 counts of sex trafficking and 1 count of sexual assault.  At trial, defense counsel allowed “Exhibit 79”–a 181-page report containing the contents of Sholar’s cell phone, including 1,4000 text messages and photos of girls and women in suggestive poses, to go to the jury. The State concedes that defense counsel  performed deficiently, but argued that Sholar was prejudiced only with respect to the sexual assault charge, not the sex trafficking charges. The court of appeals agreed.

State v. David Earl Harris, Jr., 2016AP548-CR, 5/31/17, District 1 (unpublished); case activity (including briefs)

The state charged Harris with heinous conduct giving rise to false imprisonment, sexual assault, and strangulation charges. At trial, the DA introduced a copy of a TRO that pre-dated the criminal complaint but mirrored the facts that it alleged. Defense counsel didn’t mind letting the jury see the TRO because she thought it showed that the TRO allegations were false. But she didn’t notice the part of the TRO where the court commissioner found reasonable grounds to believe that Harris had committed all heinous conduct described in the TRO. Uh oh. Guess what happened?

Former ASPD John Breffeilh just brought a real gem to On Point’s attention. It’s an indexed compilation of hundreds (maybe thousands) of successful ineffective assistance of counsel cases from around the nation. The database runs from 1984 when SCOTUS  decided Strickland through the present. It includes Wisconsin cases and covers everything from criminal cases, to sexual predator cases, to involuntary mental commitments.

Skimming this resource can help you (a) avoid missteps and/or (b) find the perfect case to support your client’s ineffective assistance of counsel claim.

State v. Rafael D. Honig, 2016 WI App 10; case activity (including briefs)

Honig, convicted at trial of two first-degree child sexual assaults, asserts that his trial counsel mishandled three issues bearing on the credibility of his accusers; the court of appeals agrees.

Oscar C. Thomas v. Marc Clements, 7th Circuit Court of Appeals No. 14-2539, 6/16/15, petition for rehearing en banc denied, 8/7/15

Thomas is entitled to a new trial for the intentional homicide of Joyce Oliver-Thomas, his ex-wife, because his trial lawyer was ineffective for failing to ask a pathology expert to review the conclusions of the state’s forensic pathologist—conclusions on which the prosecutor relied heavily in arguing that Thomas caused Oliver-Thomas’s death intentionally rather than accidentally, as Thomas claimed.