On Point: D. Ineffective Assistance

State v. Lorenzo D. Kyles, 2018AP296-Cr, District 1, 11/20/18, (not recommended for publication); case activity (including briefs)

This appears to be Wisconsin’s second application of Lafler v. Cooper, 566 U.S. 156 (2012), which modified the prejudice prong of  Strickland‘s ineffective assistance of counsel test for situations where defense counsel failed to convey a plea offer and thereby caused the defendant to accept  subsequent, potentially less favorable offer. 

State v. Akim A. Brown, 2017AP1332-CR, District 1, 11/6/18 (not recommended for publication); case activity (including briefs)

Brown, charged with second degree sexual assault of L.S., testified their sexual encounter was consensual. He argues trial counsel was ineffective for failing to elicit from him certain testimony that would have helped show the encounter was consensual and for failing to object to testimony about L.S.’s prior consistent statements. The court of appeals concludes counsel’s shortcomings didn’t prejudice Brown’s defense.

State v. John P. Bougneit, 2018AP74, 10/24/18, District 2 (one-judge decision; ineligible for publication); case activity (including briefs)

A jury convicted Bougneit of fourth-degree sexual assault; he allegedly nonconsensually fondled an 18-year-old woman under a blanket while he, the woman, and his wife were watching a movie together at their house. The wife testified for Bougneit and the state sought to damage her credibility by calling attention to her professed recall–in a statement to police and on the stand–of various seemingly minor details of the evening. 

State v. Kenneth Alexander Burks, 2018AP208-CR, 9/25/18, District 1, (not recommended for publication); case activity (including briefs)

The court of appeals held that an officer’s testimony that another witnesses’s testimony was “very believable” did not qualify as “vouching” when considered in context. It also held that the circuit court did not impermissibly rely on its own comments about the opioid epidemic, addiction, and the medical and pharmaceutical industries when it sentenced Burks. Thus, his lawyer was not ineffective when he failed to object to these alleged errors.

State v. Darrin L. Malone, 2017AP680-CR, 9/26/18, District 2 (not recommended for publication); case activity (including briefs)

The disputed image is below. It’s of a similar robbery three days before the robbery for which Malone was convicted of felony murder (the other robber in that latter robbery–who testified against Malone–admitting shooting and killing the gas station clerk). The state showed the video of that earlier robbery to the jury, hoping to convince them that Malone did that one, and thus likely did the one he was being tried for, too. Showed it, that is, except for the 10 seconds including this frame, which seems to show a white person’s hand on the robber the state claimed was Malone. Malone is black.

State v. Keith J. Brooks, 2017AP1723-CR, 9/25/18, District 1 (not recommended for publication); case activity (including briefs)

Brooks was tried for first-degree intentional homicide. The jury acquitted him of that but convicted of the lesser-included first-degree reckless. He argues his trial lawyers were ineffective because they pursued a strategy that would have let the jury find him guilty of that count even if (as the defense contended) the victim had committed suicide.

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. Darrick L. Bennett, 2016AP2209-CR, 9/18/18, District 1 (not recommended for publication); case activity (including briefs)

Bennett was charged with 1st degree intentional homicide, but pled guilty to 1st degree reckless homicide. In a decision turning on facts specific to this case, the court of appeals affirmed the trial court’s decision denying (a) plea withdrawal without a hearing, (b) sentence modification based on a new factors, and (c) postconviction discovery of evidence that might have affected his sentence.

State v. Brinkley L. Bridges, 2017AP2311-CR, 9/25/18, District 1 (not recommended for publication); case activity (including briefs)

Bridges pled to five felonies involving guns and drugs; the evidence against him was derived, in part, from a warrant police had obtained allowing them to track his cell phone. He argues counsel was ineffective for not challenging that warrant because the application didn’t show probable cause.

State v. T.W., 2018AP967 & 2018AP968, District 1, 8/21/18 (one-judge decision; ineligible for publication); case activity

At the trial on the petition to terminate T.W.’s parental rights, the GAL argued in closing that the jury should consider the interests of the children. T.W.’s lawyer didn’t object, but the court of appeals holds that failure wasn’t prejudicial and so rejects T.W.’s claim that trial counsel was ineffective.