On Point: Machner Hearing

State v. Robert Daris Spencer, 2018AP942-CR, petition for review, and petition for cross review, of an unpublished court of appeals decision, both granted 8/13/21; case activity (including briefs)

Issues presented (composed by On Point from the PFR and cross PFR)

1.  Was the circuit court’s ex parte voir dire and removal of a juror during trial a structural error requiring automatic reversal, or is it subject to harmless error analysis?
2. Did the circuit court improperly consider the race of the defendant and the witnesses in deciding to dismiss juror?
3. Is a defendant entitled to a postconviction hearing on an ineffective assistance of counsel claim when the record conclusively shows the claim should be denied?

State v. Duanne D. Townsend, 2019AP787, 6/9/20, District 1 (not recommended for publication); case activity (including briefs)

Good news: the court of appeals reversed a circuit court decision denying Townsend’s §974.06 motion without a hearing. Townsend now gets a one on his claims for ineffective assistance of postconviction and trial counsel. Bad news: the court of appeals botched the issue of whether Townsend was denied his 6th Amendment right to determine his own defense under McCoy v. Louisiana, 138 S Ct. 1500 (2018). As noted in our post on McCoy, SCOW needs to square that decision with Wisconsin case law.

State v. Mark J. Bucki, 2020 WI App 43; case activity (including briefs)

[UPDATED POST – Scroll to the bottom for very useful commentary by Chris Zachar. Many thanks to him for sharing his knowledge.]

The headline tells you the only legal proposition you need to take from this soon-to-be-published case: under Daubert, evidence that trained dogs indicated the defendant had been at a particular location, and also that there had once been human remains in other locations, is not subject to a per se rule requiring corroboration before it can be admitted at trial. In a given case, a circuit court could conclude that particular dog-sniff evidence is not sufficiently reliable to come in (with or without corroboration). But Bucki’s argument–that dog-sniff evidence is so inherently unreliable that it necessarily requires corroboration–is rejected. We read the 50-page opinion, so you don’t have to.

State v. Tammy Genevieve Hardenburg, 2019AP1399-CR, 5/27/20, District 1; case activity (including briefs)

At Hardenburg’s OWI trial, the court admitted three blood test reports by three different analysts, but only one of them testified. Hardenburg argued that the testifying analyst served as a conduit for the opinions by the other two in violation of the confrontation clause. She claimed trial counsel was ineffective for not (a) trying to prevent the admission of the second and third analysts’ conclusions, and (b) objecting to the first analyst’s testimony about their conclusions. The circuit court denied Hardenburg’s motion without a hearing. The court of appeals reversed:

State v. Quaid Q. Belk, 2019AP982-CR, District 1, 4/21/20 (not recommended for publication); case activity (including briefs)

Belk moved for a new trial based on multiple allegations of ineffective assistance of trial counsel. The circuit court denied the motion without a hearing, but the court of appeals sends the case back for a hearing on one of the claims.

State v. Jeninga, 2019 WI App 14; case activity (including briefs)

Jeninga asserted that he would not have pled guilty to a weak child sexual assault charge if his trial counsel had filed an obvious motion to suppress child porn on his cell phone. Trial counsel, who missed the suppression issue, testified that the child porn caused to her to advise Jeninga to plead guilty, and he followed her advice. The court of appeals says trial counsel’s testimony was not enough to prove prejudice. Jeninga had to testify himself.

State v. Victor Yancey, Jr., 2018AP802-CR, 1/8/19, District 2 (1-judge opinion, eligible for publication); case activity (including briefs)

Stormy applause for Godfrey & Kahn who took this appeal pro bono and then won it! The court of appeals held that Yancey alleged a prima facie claim for ineffective assistance of counsel when he pled guilty and was entitled to a Machner hearing.  It also held that the trial court incorrectly held that to establish prejudice Yancey had to show a “reasonable probability that he would have been able to mount a successful challenge to the State’s evidence at a trial.”

State v. Alice M. Fischer, 2018AP422-CR, 9/18/18, District 1 (1-judge opinion, ineligible for publication); case activity

This case may sound vaguely familiar. Trial counsel failed to investigate and make use of a claim against a sheriff’s sergeant, Matthew Paradise, the defendant in a civil rights action alleging that he and others conspired to create inaccurate reports leading to a false drunk driving charge against one Tanya Weyker. Turns out Paradise also stopped Fischer for OWI and testified at her trial.

State v. Marcia Render, 2017AP1779-CR, 8/14/18, District 1 (not recommended for publication); case activity (including briefs)

Render and her sister got into a brawl, and Render ended up on the floor on top of her sister, holding her head down to subdue her. Unfortunately, she died. At trial, the State’s doctor testified that her death was caused by manual strangulation. The jury convicted Render, and she filed a claim for ineffective assistance arguing that her trial lawyer should have consulted an independent forensic pathologist to review the medical evidence of her sister’s death.

State v. Ronald Lee. Gilbert, 2016AP1852-CR, 6/26/18, District 1 (not recommended for publication); case activity (including briefs)

Congratulations to Quarles & Brady, which took this appeal pro bono, for scoring a defense win! Gilbert, who was convicted trafficking a child and related crimes, argued that his trial counsel was ineffective for failing to (1) challenge the admission of cellular phone data testimony, (2) demand discovery before trial, (3) impeach the State’s star witnesses with prior inconsistent statements, and (4) strike a biased juror. Gilbert further alleged that his trial counsel made improper statements during his closing. The court of appeals granted a Machner hearing on all claims except the one regarding juror bias.