On Point blog, page 30 of 32
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State v. Joseph J. Guerard, 2004 WI 85, reversing unpublished decision of court of appeals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: Presentation/Examination of Witnesses – Impeachment
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding: “Second, Arredondo claims that his trial attorney failed to impeach Garza’s testimony with false statements Garza made to the police. This claim fails on both the deficiency and prejudice prongs. Arredondo cannot show prejudice because Garza admitted on direct-examination that he lied to the police….,” ¶33.
Counsel – Ineffective Assistance – Deficient Performance: Presentation/Examination of Witnesses – Opening Door to “Haseltine” Evidence, on Tactical Grounds
State v. John R. Maloney, 2004 WI App 141, affirmed, 2005 WI 74
For Maloney: Lew A. Wasserman
Issue/Holding:
¶18. Maloney complains trial counsel invited a Haseltine violation against him by asking on cross-examination whether Skorlinski believed anything Maloney had told him in the investigation. See State v. Haseltine, 120 Wis. 2d 92,
Counsel – Ineffective Assistance – Deficient Performance: Presentation/Examination of Witnesses – Defendant’s Testimony from Prior Trial in Different Case
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding:
¶49. Arredondo further claims that his trial lawyer should have moved to admit pursuant to Wis. Stat. Rule 908.045(1) (declarant unavailable) the transcript of Arredondo’s testimony at the 1995 sexual-assault trial. Arredondo contends that the trial court would have been “required” to admit his prior testimony because the other-acts evidence placed him in the “constitutionally untenable”
Counsel – Ineffective Assistance – Deficient Performance: Presentation/Examination of Witnesses – Defendant’s Testimony: Waiver of and Revocation of Waiver
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding:
¶27. Arredondo argues that his trial lawyer was ineffective for advising him not to testify. We disagree. At the Machner hearing, Arredondo’s attorney testified that he advised Arredondo not to testify for two main, albeit related, reasons. First, the lawyer testified that he believed Arredondo would make a poor witness because Arredondo told him inconsistent details about the night Klamann was killed,
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: Adequate Investigation – Expert Testimony
State v. Michael A. DeLain, 2004 WI App 79, PFR granted, on other grds.
For DeLain: Robert R. Henak
Issue/Holding: Trial counsel’s failure to “investigate and present evidence of exculpatory prior consistent statements DeLain made to co-workers” was not the product of deficient performance, given that DeLain never told counsel about these remarks, and that counsel interviewed all of the co-workers, ¶18.
Issue/Holding: Trial counsel’s failure to adduce expert testimony regarding the propriety of defendant’s “provocative therapy” approach in counseling youths was not deficient but,
Counsel – Ineffective Assistance – Deficient Performance: Failure to Investigate – Potential Alibi Witnesses
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding: Failure to locate and present the testimony of a potential alibi witness wasn’t deficient given counsel’s testimony that his investigator couldn’t locate the witness, along with Arredondo’s failure to convince the court that the investigator had been informed where the witness lived or could be located. ¶36.
Note: For authority all but saying that failure to file notice of alibi,