On Point blog, page 45 of 55
Expert Opinion – “Jensen” Testimony – Failure to Object; Comment on Another Witness’s Truthfulness – Failure to Object;Ineffective Assistance – Prejudice
State v. Charles R. Black, 2009AP2036-CR, District 4, 1/13/10
court of appeals decision (3-judge, not recommended for publication); for Black: Devon M. Lee, SPD, Madison Appellate; case activity; Black BiC; State Resp.; Reply
Expert Opinion – “Jensen” Testimony – Failure to Object
An expert may testify that a complainant’s behavior is consistent with a sexual assault victim’s,
Missouri v. Galin E. Frye, USSC No. 10-444, Cert. Granted 1/7/11
Decision below (311 S.W.3d 350, Mo. Ct. App)
Contrary to the holding in Hill v. Lockhart, 474 U.S. 52 (1985)–which held that a defendant must allege that, but for counsel’s error, the defendant would have gone to trial–can a defendant who validly pleads guilty successfully assert a claim of ineffective assistance of counsel by alleging instead that,
Lafler v. Anthony Cooper, USSC No. 10-209, Cert. Granted 1/7/11
Decision below (CTA6)
Anthony Cooper faced assault with intent to murder charges. His counsel advised him to reject a plea offer based on a misunderstanding of Michigan law. Cooper rejected the offer, and he was convicted as charged. Cooper does not assert that any error occurred at the trial. On habeas review, the Sixth Circuit found that because there is a reasonable probability that Cooper would have accepted the plea offer had he been adequately advised,
Effective Assistance – Plea Advice; Newly Discovered Evidence; Counsel – Sanction
State v. Charles A. Bouc, 2010AP180, District 2, 12/22/10
court of appeals decision (3-judge, not recommended for publication); for Bouc: Adam Walsh; case activity; Bouc BiC; State Resp.; Reply
Effective Assistance – Plea Advice
Counsel did not fall short of normative performance standards, where he weighed with his client the pros and cons of admissibility of potentially crucial evidence;
TPR – Knowing Admission to Grounds, Ineffective Assistance
State v. Kenneth E., 2010AP1520, District 1, 12/7/10
court of appeals decision (1-judge, not for publication); for Kenneth E.: Mary D. Scholle, SPD, Milwaukee Appellate
(The Court’s Case Access site has posted Kenneth E.’s principal and reply briefs. This is atypical; the court’s normal practice is not to post briefs, because of the confidentiality that attends TPRs. Though seemingly not barred by statute or rule, links to the briefs won’t be provided here in deference to the court’s past practice,
Ineffective Assistance: Inconsistent Defenses – “McMorris” Evidence – Prejudice; Appellate Procedure: Candor – Briefs, Record References
State v. Dekoria Marks, 2010 WI App 172 (recommended for publication); for Marks: Joel A. Mogren; Marks BiC; State Resp.; Reply
Ineffective Assistance – Inconsistent Defenses
Counsel’s choice to pursue potentially inconsistent defenses (self-defense; no involvement) was, in light of the “not uncommon practice of lawyers to argue inconsistent theories,” within the wide range of professionally competence assistance.
¶15 First,
Guilty Plea – Withdrawal – Presentence, Undisclosed Exculpatory Evidence, Waiver Rule; Ineffective Assistance of Counsel; Sentencing
State v. Morris L. Harris, 2009AP2759-CR, District 1, 11/2/10
court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply
Guilty Plea – Withdrawal – Presentence
The trial court properly applied the “fair and just reason” standard to Harris’s presentencing motion to withdraw guilty plea, ¶¶5-9.
The particular grounds asserted – no factual basis for plea;
Herbert Johnson, Sr. v. Thurmer, 7th Cir No. 07-2628, 10/18/10
7th circuit court of appeals decision, on habeas review of summary order of Wisconsin court of appeals
Habeas – Procedural Default & No-Merit Report
Johnson’s failure to assert an ineffective assistance of (trial) counsel claim in response to his appellate attorney’s no-merit report did not procedurally default that claim for purposes of subsequent collateral attack. The court follows Page v. Frank, 343 F.3d 901 (7th Cir.
Motion to withdraw Plea, Pre-Sentence; Motion to withdraw Plea – Ineffective Assistance
State v. John M. Anthony, 2009AP2171-CR, District 1, 10/13/10
court of appeals decision (3-judge, not recommended for publication); pro se; Resp. Br.
Motion to withdraw Plea, Pre-Sentence
Based on trial court findings that Anthony decision to plead no contest was based on his attorney’s informed assessment that he was likely to be found guilty if he went to trial, the court of appeals rejects his claim that he was coerced into pleading by counsel’s lack of preparation and holds instead that he failed to establish a “fair and just”
Jury Instructions; Ineffective Assistance; Record on Appeal; Self-Defense
State v. Morris L. Harris, 2009AP2833-CR, District 1, 10/13/10
court of appeals decision (3-judge, not recommended for publication); for Harris: Gary Grass; BiC; Resp.; Reply
Lesser-Included Instruction – Battery
Harris not entitled to instruction on simple battery as lesser included of substantial battery; the medical evidence established without contradiction that the victim suffered a fractured rib, therefore no reasonable jury could have acquitted him of the greater offense,