On Point blog, page 23 of 55
Plea withdrawal motion insufficient to merit evidentiary hearing
State v. Jeremy Wand, 2015AP2344-CR, District 4, 8/25/16 (not recommended for publication); case activity (including briefs)
The court of appeals holds that Wand’s postconviction motion for plea withdrawal failed to allege sufficient facts to merit an evidentiary hearing on his claims that his plea was coerced and that his trial lawyers were ineffective by failing to retain certain experts to assist in his defense.
Counsel not ineffective for failing to seek recusal of trial judge
Raymond E. King v. Randy Pfister, 7th Circuit Court of Appeals No. 14-3389, 2016 WL 4446105, 8/24/16
The presiding judge at King’s 2004 murder trial was a former public defender who represented King in a criminal case in 1986. KIng’s pretrial pro se efforts to get the judge recused were rebuffed. After exhausting his state court remedies, King filed a habeas petition arguing his state trial and appellate lawyers were ineffective for failing to litigate a claim that the trial judge should have been substituted from King’s case. The Seventh Circuit rejects the argument.
Child neglect, disorderly conduct convictions withstand challenge
State v. Ginger M. Breitzman, 2015AP1610-CR, District 1, 8/16/16 (not recommended for publication), petition for review granted 3/13/2017; case activity (including briefs)
The court of appeals rebuffs Breitzman’s arguments that there was insufficient evidence to convict her of child neglect and disorderly conduct and that her trial lawyer was ineffective.
Rejection of guilty plea, admission of rebuttal expert affirmed
State v. Mychael R. Hatcher, 2015AP297-CR, District 3, 8/16/16 (not recommended for publication); case activity (including briefs)
Hatcher was convicted of sexually assaulting an intoxicated person, obstructing an officer, and bail-jumping. This 38-page court of appeals decision rejects claims that the trial court erred in refusing to accept Hatcher’s guilty plea, admitting expert testimony during the State’s rebuttal, admitting evidence of the victim’s flirting, and ineffective assistance of counsel for failure to move for suppression and for introducing into evidence a report showing the victim’s BAC.
Habeas petitioner entitled to hearing on “textbook” improper vouching claim
Joseph J. Jordan v. Randall R. Hepp, 7th Circuit Court of Appeals No. 14-3613, 2016 WL 4119862, 8/3/16
Jordan claims the Wisconsin courts unreasonably applied clearly established federal law when they held that he was not denied the right to represent himself and that his trial lawyer was not ineffective for failing to object to the prosecutor’s improper vouching for a police witness’s credibility. The Seventh Circuit okays the state courts’ decision on self-representation but orders a hearing on Jordan’s ineffective assistance claim.
No error in admission of other acts evidence, no prejudice on IAC claims
State v. Rodell Thompson, 2015AP1764-CR, District 4, 8/4/16 (not recommended for publication); case activity (including briefs)
The trial court didn’t erroneously exercise its discretion in deciding to admit other-acts evidence in Thompson’s trial for sexual assault, false imprisonment, and battery, and Thompson’s IAC claims fail for want of prejudice.
Court of appeals ignores “Perry Mason” moment; finds defense discovery violation, but no ineffective assistance of counsel
State v. William J. Thurber, 2015AP161-CR, 7/27/16, District 2 (not recommended for publication); case activity (including briefs)
“Was Thurber’s trial a game being played or was it a trial designed to search for the truth? Thurber is certainly no angel as evidenced by his current long-term incarceration for crimes apart from this case. I believe the justice system best defines itself by scrupulously adhering to high standards when the worst of the worst comes before it. We travel a slippery slope when we excuse mistakes by the judiciary, the State, and defense counsel because we ‘know’ the defendant is a criminal.” Slip op. ¶91. (Reilly, J. dissenting).
Defense wins Machner hearing on McNeely issue
State v. Patrick H. Dalton, 2016AP6-CR,7/20/16, Distrct 2 (1-judge opinion; ineligible for publication); case activity (including briefs)
The court of appeals here holds that Dalton is entitled to an evidentiary hearing on his claim that trial counsel was ineffective for failing move to suppress the test results from a warrantless blood draw. The record contains no evidence that exigent circumstances existed a la Missouri v. McNeely, and the officer who ordered the draw gave no indication that he ever considered seeking a warrant.
Failure to investigate confessing co-defendant was not deficient performance
State v. David L. Vickers, 2015AP1631-CR, 6/22/16, District 2 (not recommended for publication); case activity, including briefs
Vickers, who was convicted of misdemeanor bail jumping and retail theft of a wireless router, filed a §974.06 motion claiming ineffective assistance of counsel because his trial lawyer failed to move for suppression of stolen property found in his car and failed to investigate or call as a witness a co-defendant who later confessed to the theft. The court of appeals here affirms the convcition.
Failure to object precludes Daubert analysis; expert on cell phone tracking per se admissible
State v. Robert Lavern Cameron, 2016 WI App 54; case activity (including briefs)
This decision feels like an encounter with a swarm of mosquitoes on a pleasant summer evening. But because it is recommended for publication, you can’t just swat it away. Indeed, the court of appeals’ analysis of the issues will leave you reaching for a bottle of the calamine lotion.