On Point: 1. Deficient performance

State v. Ricky H. Jones, 2013AP1731-CR, District 2, 7/30/14 (unpublished); case actvity

Exclusion of expert testimony about defendant’s lack of propensity toward child sexual assault

In defending Jones against two counts of 1st-degree sexual assault of a child, his lawyer wanted to elicit expert testimony that Jones posed a low risk of committing a sexual offense–a strategy authorized by State v. Richard A.P., 223 Wis. 2d 777, 589 N.W.2d 674 (Ct. App. 1998).  Unfortunately, trial counsel failed to give the expert report to the State pursuant to its discovery demand, so the trial court excluded it under §971.23(7m)(a) and State v. Gribble, 2001 WI App 227, 248 Wis. 2d 409, 636 N.W.2d 488.  Jones was convicted and appealed.

Manitowoc County Human Services Dep’t v.  Ralph B., 2014AP140, District 2, 7/30/14 (not recommended for publication); case activity

The court of appeals affirmed the circuit court’s decision to terminate Ralph B.’s parental rights because Manitowoc County met its burden of proving a failure to assume parental responsibility and because trial counsel had sound strategic reasons for not pursuing various lines of defense during the grounds phase of Ralph’s trial.

State v. Kenneth L. Hare, Jr., 2013AP1675-CR, 7/29/14 (not recommended for publication); case activity

In this case, the court of appeals rejected Hare’s contentions that his trial counsel was ineffective for failing to request a jury instruction on the law of self-defense and that he was entitled to an evidentiary hearing on a separate IAC claim his trial lawyer’s failure to request a jury instruction on the law of theft.

State v. Matthew D. Campbell, 2011AP1445-CR, District 4, 7/24/14 (not recommended for publication); case activity

After a victim admitted during cross-examination that she lied under oath during direct examination, the trial court advised the victim of her right against self-incrimination. (¶3-4). She invoked that right and was given immunity under §§ 972.08 and 972.085. (¶4). Cross-examination resumed, yielding additional admissions by the victim that she lied or gave inconsistent statements. (¶¶5-6). Under these circumstances, trial counsel was not ineffective for not moving to strike the victim’s direct examination testimony.

State v. Kenneth A. James, 2013AP2409-CR, District 2, 7/23/14 (not recommended for publication); case activity

James insisted on going to trial even though the transcript from the preliminary hearing hadn’t yet been prepared, so he can’t complain now that trial counsel was ineffective for failing to seek an adjournment so he could get the transcript.

State v. Jimothy A. Jenkins, 2014 WI 59, 7/11/14, review of an per curiam court of appeals decision; majority opinion by C.J. Abrahamson; case activity

This is a very nice victory for the defense.  It clarifies the “prejudice” showing required for a claim of ineffective assistance of trial counsel.  And it assures lower courts that, where trial counsel fails to call an eyewitness whose credibility can be challenged, it is still quite possible to show the prejudice required for a new trial.  After all, witness credibility is for the jury to decide.

State v. Bryanntton A. Brown, 2013AP1332-CR, District 1, 6/24/14 (not recommended for publication); case activity

Trial counsel was not ineffective for failing to present certain evidence that the complainant in Brown’s child sexual assault prosecution may have obtained her sexual knowledge from watching TV and movies and talking to her older sister. Nor was trial counsel ineffective for not taking steps to mitigate the impact of a letter Brown purportedly wrote to Carson, a fellow jail inmate, in which Brown admitted the charges. Finally, the circuit court didn’t erroneously exercise its sentencing discretion.

State v. Russell S. Krancki, 2014 WI App 80; case activity

In the first Wisconsin case to address how Salinas v. Texas, 570 U.S. ___, 133 S. Ct. 2174 (2013), affects the admission of evidence of a defendant’s silence, the court of appeals reads Salinas to apply to a narrow factual scenario not present in this case. The court goes on to assume that trial counsel should have objected to testimony about Krancki’s silence, but finds his failure to object wasn’t prejudicial. The court also concludes trial counsel wasn’t ineffective for saying in his opening statement that Krancki would testify or for failing to exclude references to the .02 blood alcohol limit.

State v. Donald Ray Michael, 2012AP2738-CR, District 1, 6/10/14 (not recommended for publication); case activity

Michael is entitled to a new trial on reckless injury and felon in possession of a firearm charges because trial counsel provided ineffective assistance at trial by failing to introduce evidence from the police department’s computer automated dispatch (CAD) report and failing to present testimony from an eyewitness to the incident.

State v. Mario Emmanuel James, 2013AP309-CR, District 1, 3/11/14; court of appeals decision (not recommended for publication); case activity

James, charged with armed robbery, alleged trial counsel was ineffective based on various alleged omissions, including the following:

• Failing to object to evidence that the victims of the robbery identified James from a photo array based on the claim that it was a suggestive identification procedure because the police told the victims before they viewed the array that they had found the victims’