On Point blog, page 29 of 32
Counsel – Ineffective Assistance – Deficient Performance: Law Must Be Clear – Juror Dissent After Guilty Verdict Accepted and Phase II (NGI) Deliberations Begun
State v. Jennifer Wery, 2007 WI App 169
For Wery: Elizabeth Ewald-Herrick
Issue/Holding:
¶17 Wery’s counsel’s failure to object did not constitute deficient performance. Deficient performance is limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue. State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621 (Ct. App. 1994).
Counsel – Ineffective Assistance – Deficient Performance: Adequate Investigation – Revocation of Extended Supervision: Alternatives to Revocation
State ex rel. Clayborn L. Walker v. Frank, 2007 WI App 142, PFR filed 6/1/07
For Walker: Amelia L. Bizzaro
Issue: Whether counsel deficiently advised Walker to waive ES revocation, in that counsel determined that investigation of alternatives to revocation would be futile.
Holding:
¶14 Dudley’s decision to advise Walker to waive the revocation hearing is within the core of a lawyer’s responsibility to devise the best strategy to protect a client’s interests.
Counsel – Ineffective Assistance – (Cross-)Examination of Witness with Respect to Immunity Grant
State v. Dion W. Demmerly, 2006 WI App 181, PFR filed 9/11/06
For Demmerly: Edward J. Hunt
Issue/Holding: Counsel’s cross-examination of state’s witness testifying under a grant of immunity was adequate where it revealed that the witness’s motivation for testifying was a desire to receive leniency on his pending charges, ¶22; and, also where any confusion about the grant of immunity was clarified by the trial court’s accurate admonition to the jury on the matter,
Counsel – Ineffective Assistance – Examination of Witness – Open-Ended Question
State v. Roberto Vargas Rodriguez, 2006 WI App 163, PFR filed 8/28/06
For Rodriguez: Donna L. Hintze, SPD, Madison Appellate
Issue/Holding:
¶39 Questions that call for a narrative are generally improper because they do not alert court and counsel to the subject about which the witness is about to testify. There are exceptions, however, and whether to permit a question calling for a narrative response is within the trial court’s discretion under Wis.
Counsel – Ineffective Assistance – Deficient Performance: Failure to Litigate Suppression Motion in Preference to Accepting Plea Offer
State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06
Milanes: Joan M. Boyd
Issue/Holding: Counsel’s failure to litigate a (Miranda) suppression motion was not deficient where the issue turned purely on a credibility dispute between defendant and the detective and pursuit of the motion would have required rejecting a favorable offer, ¶¶15-16.
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 Pursue NGI Defense
State v. Juan F. Milanes, 2006 WI App 259, PFR filed 12/7/06
For Milanes: Joan M. Boyd
Issue/Holding: Failure to pursue an NGI defense wasn’t deficient:
¶19 … The evidence in support of Milanes’ claim is remarkably weak; the strongest piece of evidence is the report of his psychiatric expert, which contains a conclusory statement that Milanes meets the statutory requirements. We will not discuss this issue in detail,
Waiver of Appeal — “Partial” No-Merit Report
State ex rel. Richard A. Ford (II) v. Holm, 2006 WI App 176, PFR filed 9/11/06; on appeal following remand in 2004 WI App 22 (“Ford I”)
For Ford: James R. Troupis
For Amicus: Joseph N. Ehmann, SPD, Madison Appellate
Issue/Holding: A client who has strategically foregone a potentially meritorious postconviction challenge is not entitled to the option of a “partial” no-merit report discussing remaining aspects of the case:
¶12 We conclude,
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 Research Law – “Unsettled” or Murky Law
State v. John R. Maloney, 2005 WI 74, affirming 2004 WI App 141, but nonetheless retaining jurisdiction pending resolution of other issues
For Maloney: Lew A. Wasserman
Issue/Holding: Failure to move to suppress evidence based on asserted violation of SCR 20:4.2 does not support deficient performance, given that applicability of this Rule was not settled:
¶23 The split of authorities described above is important in considering whether Maloney’s trial counsel was ineffective in failing to challenge the admissibility of the videotape evidence based on an alleged violation of SCR 20:4.2.