On Point blog, page 31 of 55
Failure to present evidence of alternative sources for child’s sexual knowledge wasn’t ineffective
State v. Bryanntton A. Brown, 2013AP1332-CR, District 1, 6/24/14 (not recommended for publication); case activity
Trial counsel was not ineffective for failing to present certain evidence that the complainant in Brown’s child sexual assault prosecution may have obtained her sexual knowledge from watching TV and movies and talking to her older sister. Nor was trial counsel ineffective for not taking steps to mitigate the impact of a letter Brown purportedly wrote to Carson, a fellow jail inmate, in which Brown admitted the charges. Finally, the circuit court didn’t erroneously exercise its sentencing discretion.
Counsel was not ineffective for failing to object to comment on defendant’s silence or for telling jury defendant would testify
State v. Russell S. Krancki, 2014 WI App 80; case activity
In the first Wisconsin case to address how Salinas v. Texas, 570 U.S. ___, 133 S. Ct. 2174 (2013), affects the admission of evidence of a defendant’s silence, the court of appeals reads Salinas to apply to a narrow factual scenario not present in this case. The court goes on to assume that trial counsel should have objected to testimony about Krancki’s silence, but finds his failure to object wasn’t prejudicial. The court also concludes trial counsel wasn’t ineffective for saying in his opening statement that Krancki would testify or for failing to exclude references to the .02 blood alcohol limit.
SCOW clarifies the forum and procedure for raising a claim that counsel was ineffective for failing to file notice of intent to pursue postconviction relief
State ex re. Lorenzo D. Kyles v. William Pollard, 2013 WI 38, reversing an unpublished court of appeals decision; case activity
Settling a somewhat obscure but still important point of appellate procedure, the supreme court unanimously holds that when a defendant seeks to reinstate the deadline for filing a notice of intent to pursue postconviction relief under § 809.30(2)(b) based on an allegation that counsel was ineffective for failing to file a timely notice, he should file a habeas petition in the court of appeals as provided under State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992).
Court of appeals affirms order for new trial based on ineffective assistance of trial counsel
State v. Donald Ray Michael, 2012AP2738-CR, District 1, 6/10/14 (not recommended for publication); case activity
Michael is entitled to a new trial on reckless injury and felon in possession of a firearm charges because trial counsel provided ineffective assistance at trial by failing to introduce evidence from the police department’s computer automated dispatch (CAD) report and failing to present testimony from an eyewitness to the incident.
“Under the facts presented,” lawyer did not violate ethics rules by disclosing confidential client information before a Machner hearing
Office of Lawyer Regulation v. Peter J. Thompson, 2014 WI 25; case activity
The supreme court rejects OLR’s attempt to discipline a lawyer who disclosed confidential client information in advance of a Machner hearing, finding the context in which the disclosure was made to be “of critical importance” to its determination (¶26) while also reminding lawyers to “proceed with caution when considering disclosure of confidential client information in response to a claim of ineffective assistance of counsel” (¶1).
Stalking statute was not unconstitutional as applied to defendant; letters on which stalking convictions were based constituted a “true threat”
State v. Donald W. Maier, 2013AP1391-CR, District 4, 5/8/14 (not recommended for publication); case activity
The First Amendment did not preclude prosecuting Maier for stalking based on letters he sent because the letters constituted a “true threat” and thus were not protected speech.
Trial counsel was not ineffective for failing to challenge photo array evidence or object to alleged prosecutorial misconduct
State v. Mario Emmanuel James, 2013AP309-CR, District 1, 3/11/14; court of appeals decision (not recommended for publication); case activity
James, charged with armed robbery, alleged trial counsel was ineffective based on various alleged omissions, including the following:
- Failing to object to evidence that the victims of the robbery identified James from a photo array based on the claim that it was a suggestive identification procedure because the police told the victims before they viewed the array that they had found the victims’
No error in failure to give instructions on lesser included homicide charges where defendant’s trial testimony didn’t support them
State v. Tammy S. Cole, 2013AP947-CR, District 4, 2/27/14; court of appeals decision (not recommended for publication); case activity
The trial court did not err in declining to instruct on second-degree reckless homicide or homicide by negligent handling of a dangerous weapon, as Cole requested at her trial on one count of first degree intentional homicide for shooting Evans, her boyfriend:
¶14 The evidence viewed in the light most favorable to Cole does not support submission of these lesser-included offenses.
SCOTUS: Trial lawyer’s failure to seek funds to hire better expert, based on mistaken belief about funding cap, amounts to deficient performance
Anthony Ray Hinton v. Alabama, USSC 13-6440, 2/24/14 (per curiam), vacating Hinton v. State, __So. 3d__, 2013WL 598122 (2/15/13).
Docket here.
Trial lawyers, listen up. Check your expert witness funding cap before settling for an “expert” you know is sub par.
In 1985, managers of 3 different restaurants were robbed and shot—each with two .38 caliber bullets. The first two managers died.
Trial counsel’s performance at TPR trial, if deficient, was not prejudicial
Aaron W.M. v. Britany T.H., 2013AP2123, District 4, 2/13/14; court of appeals decision (1-judge; ineligible for publication); case activity
Britany claimed trial counsel was ineffective for not objecting to: 1) hearsay testimony from the child’s father that related incidents of Britany’s bad parenting; and 2) the petitioner’s “golden rule” rule argument during closing, which asked the jurors to view the case as if the child were their own, thus improperly asking the jurors to “internalize and personalize the case,