On Point: D. Ineffective Assistance

State v. Scott A. Walker, 2019AP1138, 11/7/19, District 4 (one-judge decision; ineligible for publication); case activity (including briefs)

A jury found Walker guilty of intentionally pointing a firearm at a person contrary to Wis. Stat. § 941.20(1)(c). He claims his trial lawyer was ineffective for failing to raise a defense under Wis. Stat. §§ 939.45(2) and 939.49(1), which provide a privilege “to threaten or intentionally use force against another for the purpose of preventing or terminating what the person reasonably believes to be an unlawful interference with the person’s property.” The court of appeals has some doubt that Walker adequately raised this claim at the Machner hearing, ¶¶6-7, but decides it anyway on the merits, holding there was no prejudice because the facts couldn’t possibly make out the defense.

State v. Robert C. Washington, 2018AP1771-CR, District 1, 10/8/19 (not recommended for publication); case activity (including briefs)

Washington was convicted of first degree reckless homicide and first degree reckless injury for shooting his two sons, killing one and injuring the other. He argues his lawyer was ineffective for advising him to plead without discussing possible lesser included offense possibilities and for failing to advocate for him at sentencing. He also argues newly discovered evidence shows the shootings were accidental, not reckless.

Walker v. Pollard, 18C0147, Eastern District of Wisconsin, 9/4/19

Montgomery Walker is a pro se habeas petitioner who alleges that his postconviction/appellate counsel should have raised a claim of juror bias. In an order granting Walker an evidentiary hearing, the U.S. District Court holds that our supreme court was wrong, in State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, to say an appellate lawyer can’t be ineffective for failing to raise a claim unless that claim is “clearly stronger” that claims the lawyer did raise. The decision explains that SCOW misread Smith v. Robbins, 528 U.S. 259 (2000), as imposing such a rule.

State v. Johnalee A. Kawalec, 2017AP798, 7/24/19, District 2 (not recommended for publication); case activity (including briefs)

We’ve questioned the blanket claim that a lawyer can’t be ineffective for failing to argue an unsettled proposition of law. Here we have the sort of case for which the general rule makes some sense. Kawalec was charged with theft by a bailee under Wis. Stat. § 943.20(1)(b). She was the holder of a joint bank account with the alleged victim; the victim had given her a power of attorney but the relationship fell apart and she was accused of having used some of the funds for her own benefit, rather than abiding by the prohibition on self-dealing inherent in the POA.

State v. Tyrus Lee Cooper, 2016AP375-CR, 6/20/19, affirming a per curiam court of appeals opinion, case activity (including briefs)

Cooper moved for pre-sentencing plea withdrawal and filed an OLR grievance because his lawyer failed to provide him with discovery, contact witnesses, and communicate with him. Days before trial, his unprepared lawyer misled him about the strength of the State’s case and rushed him into a plea. The circuit court denied Cooper’s motion, but OLR later concluded that the lawyer committed 19 acts of misconduct, 5 directly relating to Cooper’s plea. Consequently, SCOW suspended his license. Now, in 4-3 decision SCOW holds that the lawyer’s professional misconduct does not satisfy the requirements for an ineffective assistance of counsel claim.

You don’t have to say that 3 times fast . . . or slow. We all know it’s true. Here is a study that confirms the point. While the article focuses on death penalty cases, its conclusions apply broadly. Want to challenge Strickland? This article is a place to start.

State v. Robert Brian Spencer, 2017AP1722-CR, 4/16/19, District 1 (not recommended for publication); case activity (including briefs)

Spencer raised many issues on appeal: insufficient evidence to support his conviction, multiple ineffective assistance of counsel claims, and a Brady violation. This post focuses on the 2 most interesting claims: ineffective assistance for failure to move to suppress evidence obtain via a no-knock warrant and the DA’s failure to turn over evidence of an officer’s disciplinary history.

State v. Casey M. Fisher, 2017AP868, District 1, 3/26/19 (not recommended for publication); case activity (including briefs)

Fisher’s § 974.06 postconviction motion clears the hurdle erected by State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994), but fails on the merits.

State v. Martez C. Fennell, 2017AP2480-CR, District 1, 3/26/19 (not recommended for publication); case activity (including briefs)

Fennell unsuccessfully challenges his convictions for armed robbery and operating a vehicle without the owner’s consent, arguing that the charges are multiplicitous and that trial counsel should have subpoenaed a witness who would have impeached the victim’s identification of him.

State v. Edward L. Branson, 2018AP873-CR, 3/21/19, District 4 (not recommended for publication); case activity (including briefs)

Branson was convicted of possession with intent to deliver methamphetamine. He argued that his lawyer was ineffective for failing to object to an officer’s testimony comparing his behavior to that of the passenger in his car where a bag of meth was found. The officer described the passenger as calm, helpful and willing to look him in the eye. In contrast, he described Branson as nervous and failing to make eye contact.