On Point blog, page 32 of 32
Counsel – Ineffective Assistance – Deficient Performance – Failure to Challenge Hypnotically Refreshed 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 challenge a witness’s hypnotically refreshed testimony, as violating the guidelines of State v. Armstrong, 110 Wis. 2d 555, 329 N.W.2d 386 (1983), was deficient:
¶45. To begin, we are not persuaded by counsel’s explanation of his trial strategy.
Counsel – Ineffective Assistance – Deficient Performance – Failure to Investigate Potential Defense – Guilty Plea
State v. Harold C. Pote, III, 2003 WI App 30
For Pote: John A. Pray, Remington Law Center
Issue: Whether counsel was ineffective for failure to investigate a potential defense (inability to work for medical reasons) to one of two counts of nonsupport, where counsel complied with the defendant’s instruction to obtain a plea bargain involving no incarceration and the count with the potential defense was dismissed under the plea bargain.
Counsel – Ineffective Assistance – Deficient Performance – Failure to Hire Expert
State v. Dale H. Chu, 2002 WI App, PFR filed 4/23/02
For Chu: Andrew Shaw
Issue/Holding: Counsel’s failure to retain an arson expert wasn’t deficient performance, where there was no indication the fire was anything other than arson, and defendant didn’t have sufficient funds to hire an expert. ¶¶50-52
SVP Commitments: Counsel – Effective Assistance, Appeal
State ex rel. Ruven Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, reconsideration denied2002 WI 12, reversing unpublished court of appeals order
For Seibert: Gregory P. Seibold; amicus brief: Howard B. Eisenberg, Dean, Marquette Law School
Issue/Holding:
¶1. This case presents two issues. The first issue is whether an indigent sexually violent person, as defined by Wis.
Counsel – Ineffective Assistance – Deficient Performance – Failure to Investigate, Information within Defendant’s Knowledge, but not Imparted to Counsel
State v. William Nielsen, 2001 WI App 192, PFR filed
For Nielsen: Waring R. Fincke
Issue/Holding: “This court will not find counsel deficient for failing to discover information that was available to the defendant but that defendant failed to share with counsel.” ¶24.
Waiver of Appeal — Arguably Meritorious Appellate Issue that Would Have Incurred Risk
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: Given circuit court findings “that Ford affirmatively elected not to pursue any issue that would result in the withdrawal of his plea and the possible reinstatement of a second sexual assault charge,” he is deemed to have knowingly and voluntarily waived his right to pursue a postconviction challenge to his guilty plea;
Counsel – Ineffective Assistance – Deficient Performance – failure to investigate, based on defendant’s version
State v. David S. Leighton, 2000 WI App 156, 237 Wis.2d 709, 616 N.W.2d 126
For Leighton: Daniel Snyder
Issue: Whether defendant’s first counsel was ineffective for failing to file formal discovery demand and investigate various matters.
Holding: Because counsel withdrew before the prelim, and because there is no right to discovery before prelim, counsel couldn’t have been deficient for failing to file a demand, ¶37; because defendant failed to show what information counsel might have uncovered,
Counsel – Ineffective Assistance – Deficient Performance – Failure to Investigate Expert – Non-Pursuit of NGI Defense After Rejection by Expert Who Misunderstood Correct Test
State v. Theodore Oswald, 2000 WI App. 2, 232 Wis.2d 62, 606 N.W.2d 207
For Oswald: Jerome F. Buting, Kathleen B. Stilling
Issue: Whether counsel was ineffective for rejecting an NGI defense, where two defense experts rejected the defense but after trial one acknowledged that he misunderstood the correct test and that his opinion was now different.
Holding: “Competent representation does not demand that counsel seek repetitive examinations of the defendant until an expert is found who will offer a supportive opinion.”
Counsel – Ineffective Assistance – Deficient Performance – Failure to Investigate
Vonaire T. Washington v. Smith, 219 F.3d 620 (7th Cir. 2000)
For Washington: Robert R. Henak
Issue/Holding: Trial consel’s performance was deficient in three respects:
- Last-minute issuance of subpoena for hard-to-find witness, on theory that trials are often adjourned at last minute anyway. (“(P)lacing witness convenience above the vital interests of his client does not make Mr. Engle’s decsion reasonable — or even really strategic.”)
- Failure to investigate potential defense witnesses.
Counsel – Ineffective Assistance – Deficient Performance – Examination of Witness – Eliciting Unanticipated Answer
State v. Liliana Petrovic, 224 Wis.2d 477, 592 N.W.2d 238 (Ct. App. 1999)
For Petrovic: Robert B. Rondini
Issue/Holding: Counsel’s cross of a detective elicited testimony that Petrovic refused to answer questions about her drug involvement during custodial examination. The court rejects her argument that counsel’s examination was deficient. Counsel “reasonably believed,” based on pretrial hearings that she had answered such questions (with denials). Counsel’s “unwittingly” eliciting testimony about her assertion of rights wasn’t unreasonable.