On Point blog, page 14 of 32
Misinformation about IC max does not permit plea withdrawal
State v. Jason D. Henderson, 2015AP1740-CR, District I, 3/1/16 (1-judge decision; ineligible for publication); case activity (including briefs)
Henderson pled to two misdemeanor repeaters. He now seeks to withdraw his plea on the ground that counsel was ineffective for misinforming him that the two-year maximum sentence on each count was divided into one year of initial confinement and one year of extended supervision, rather than the correct 18 month/6 month split.
Counsel ineffective; failed to challenge credibility in swearing contest
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.
Social worker’s testimony about behavior of child abuse victims passes Daubert
State v. Larry J. Smith, 2016 WI App 8; case activity
Ordinarily, “the third time’s a charm.” But here, with its third decision rejecting a Daubert challenge to expert testimony, the court of appeals triple underscores just how flexible the test really is. The decision also addresses a vouching issue.
Evidence of retail theft sufficient; ineffective assistance claim fails because lawyer should have assumed client was lying
State v. Daniel Scott Klinkenberg, 2015AP331-CR, District 4, 11/5/15 (1-judge opinion, ineligible for publication); case activity (including briefs)
This is one of those really fact-specific decisions. The centerpiece of the State’s case against Klinkenberg for retail theft was security camera footage that did not show him concealing merchandise of leaving the store with unpurchased merchandise. Yet the jury convicted, and the court of appeals affirmed.
Introduction of evidence of prior TPR, parenting of other children, didn’t entitle parent to new TPR trial
Sauk County DHS v. A.C., 2015AP898 & 2015AP899, District 4, 10/22/15 (one-judge decision; ineligible for publication); case activity
A.C.’s trial lawyer was not ineffective for failing to take steps to exclude evidence about the termination of A.C.’s rights to a child in a prior case and about her parenting conduct toward that child and another child.
GAL’s representation of corporation counsel in unrelated matter didn’t create conflict of interest in TPR case
La Crosse County HSD v. C.J.T., 2015AP252, District 4, 10/16/15 (one-judge decision; ineligible for publication); case activity
The fact that the County’s attorney handling this TPR proceeding retained the GAL in the case to represent the her in an unrelated personal injury matter didn’t create a conflict of interest that required a new trial.
SCOTUS: “Right to counsel” guarantees reasonable competence not perfect advocacy
Maryland v. Kulbicki, USSC No. 14-848 (per curiam) (October 5, 2015) granting cert and reversing Kulbicki v. State, 99 A.3d 730, 440 Md. 33 (2014); SCOTUSblog page
This is a summary reversal of a Maryland Court of Appeal’s decision, which held that Kulbicki’s defense lawyers were constitutionally ineffective back in 1995. A jury convicted Kulbicki of 1st-degree murder for shooting his mistress. The State’s case rested on a Comparative Bullet Lead Analysis, which the scientific community generally accepted then, but doesn’t now.
References to victim’s truthfulness, parochial schooling don’t merit new trial
State v. Joshua J. Feltz, 2014AP2675-CR, District 1, 9/29/15 (not recommended for publication); case activity (including briefs)
Feltz hasn’t shown his defense was prejudiced when his trial counsel elicited a statement about the truthfulness of the victim. Nor was defense counsel deficient in agreeing to allow the prosecutor to refer in closing to the victim attending a school “where moral guidance is provided.”
Guest Post: Mike Tobin on SCOW’s new, narrow interpretation of Padilla
State v. Shata, 2015 WI 74, 7/9/15, reversing an unpublished court of appeals decision, 2013AP1437-CR; majority opinion by Ziegler, dissenting opinion by Bradley (joined by Abrahamson); case activity (including briefs)
State v. Ortiz-Mondragon, 2015 WI 73, 7/9/15, affirming a published court of appeals decision, 2013AP2435-CR, majority opinion by Justice Ziegler, dissenting opinion by Bradley (joined by Abrahamson); case activity (including briefs)
In a pair of 5-2 decisions, the Wisconsin Supreme Court held that defense attorneys provided adequate advice about immigration consequences. In each case, the defendant sought withdrawal of his guilty plea because he had not been properly advised regarding the mandatory adverse immigration consequences of conviction.
As described below, the cases presented different circumstances regarding the nature of the convictions and the advice given by the attorney. Nonetheless, the following points seem clear regarding the court’s interpretation of Padilla v. Kentucky: 1) the court is narrowly interpreting the obligations of defense attorneys under Padilla; 2) the court does not believe that deportation is ever automatic or mandatory; and 3) if the information or advice provided was accurate, the court will find that the attorney’s performance was adequate, regardless of extent of legal research that the attorney conducted.
Freed from the shackles of AEDPA deference, Seventh Circuit finds trial counsel in homicide case ineffective for failing to consider consultation with forensic pathology expert
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.