On Point blog, page 7 of 8
Counsel – Ineffective Assistance – Deficient Performance: Adequate Investigation — Alibi Defense
State v. Eric D. Cooks, 2006 WI App 262
For Cooks: Joseph E. Redding
Issue/Holding:
¶50 Cooks, as the trial court found, provided Barth with the names of alibi witnesses and Barth had Cooks testify to his alibi. However, Barth failed to investigate the potential alibi witnesses and argue Cooks’ alibi to the jury. Barth failed to do so despite the fact that a corroborated alibi clearly would have reinforced Barth’s misidentification theory of defense.
Counsel – Ineffective Assistance – Deficient Performance: Adequate Investigation – Failure to Investigate Facts (Impeachment of Key Witnesses
State v. Jeannie M.P., 2005 WI App 183
For Jeannie M.P.: Michael Yovovich, Eileen Hirsch, SPD, Madison Appellate
Issue/Holding: Where counsel knew, or should have known, of evidence establishing possible motives for each of the two crucial State’s witnesses; and where adducing evidence of those motives would have been consistent with the chosen theory of defense, counsel’s failure to bring out that evidence at trial was deficient,
Counsel – Ineffective Assistance – Deficient Performance: Failure to Investigate Confession to Crime by Defendant’s Brother
State v. Joseph J. Guerard, 2004 WI 85, reversing unpublished decision of court of appeals
For Guerard: Joseph L. Sommers
Issue/Holding: Failure to interview or subpoena an investigator to whom the defendant’s brother had confessed was deficient performance; the basis for this failure, that counsel “thought the confessions were hearsay and that York’s reports were the work product of the State Public Defender’s office,
Counsel – Ineffective Assistance – Deficient Performance – Examination of Witness – Defendant’s Perjurious Testimony
State v. Derryle S. McDowell, 2004 WI 70, affirming 2003 WI App 168; habeas relief denied, McDowell v. Kingston, 497 F.3d 757 (7th Cir 2007)
For McDowell: Christopher J. Cherella
Amici: Keith A. Findley, John A. Pray
Issue/Holding: (Given the significance of the holding, at-length quoting is required in regard to counsel’s performance obligations relative to a client whose testimony may be perjurious:)
¶2.
Counsel – Ineffective Assistance – Deficient Performance: Failure to File Suppression Motion
State v. Peter R. Cash, 2004 WI App 63
For Cash: Lynn M. Bureta
Issue/Holding: Counsel was not ineffective for failing to file a suppression motion based on his assessment that the arrest was supported by probable cause; “the highly incriminating evidence against Cash known” to the authorities before the arrest in fact supported probable cause, ¶¶24-25.
What if there had been an arguable basis for the suppression and no non-tactical basis for failing to file it?
Counsel – Ineffective Assistance – Deficient Performance: Failure to Research Applicable Law and Object to Inadmissible Evidence (PSR)
State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04
For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate
Issue/Holding: Counsel’s failure to research admissibility of testimony which controlling caselaw plainly regards as confidential was deficient:
¶23. While Swierenga’s testimony was admissible, Geske’s was not. Crowell, which Greve reaffirmed, plainly instructs that information obtained during a court-ordered presentence investigation must remain confidential unless the court has specifically authorized its use under the limited confidentiality exception provided in Wis.
Counsel – Ineffective Assistance – Deficient Performance – Failure to Read Discovery – Failure to Investigate Must Be Strategic
State v. James R. Thiel, 2003 WI 111, reversing unpublished opinion of court of appeals
For Thiel: Bruce J. Rosen
Issue/Holding:
¶37. Turning to counsel’s performance, we first recognize that counsel’s failure to review certain portions of the discovery provided by the prosecution–especially Dr. Metzler’s medical reports–was deficient performance as a matter of law. In a felony case where the client potentially faces significant prison time,
Counsel – Ineffective Assistance – Deficient Performance – Failure to Research Law
State v. James R. Thiel, 2003 WI 111, reversing unpublished opinion of court of appeals
For Thiel: Bruce J. Rosen
Issue/Holding:
¶51. Third, counsel’s interpretation of Wis. Stat. § 972.11(3) reflects a failure either to research or correctly interpret relevant portions of the law. The circuit court found that counsel interpreted this statute as allowing the defense to prevent the State from presenting evidence of the complaining witness’s prior personal or medical history if the defense did not file a motion under § 972.11(3).
Ineffective Assistance – Counsel – Deficient Performance – Failure to Obtain DNA Tests
State v. Evan Zimmerman, 2003 WI App 196, (AG) PFR filed 9/10/03
For Zimmerman: Keith A. Findley, UW Law School
Issue/Holding: Counsel’s admittedly non-tactical failure to obtain DNA results on hair found on the victim’s pants and on scrapings from her fingernails was deficient, similar to State v. Glass, 170 Wis. 2d 146, 488 N.W.2d 432 (Ct. App. 1992):
¶40. Here,
Counsel – Ineffective Assistance – Deficient Performance – Failure to Offer Alternative Medical Testimony
State v. Evan Zimmerman, 2003 WI App 196, (AG) PFR filed 9/10/03
For Zimmerman: Keith A. Findley, UW Law School
Issue/Holding: Counsel’s failure to offer independent medical evidence that would have challenged the state’s expert as to the weapon used to kill the victim and that would have indicated that the murder was consistent with a sex crime, was deficient performance:
¶42. Given the particular facts of this case,