On Point: D. Ineffective Assistance

John Ebert v. Gaetz, 7th Circuit No. 09-1627, 6/23/10

7th circuit court of appeals decision

When the ineffective assistance claim is based on counsel’s failure to file a motion to suppress, as it is here, the defendant must also prove “that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice.” Kimmelman v.

seventh circuit court of appeals decision

Ineffective Assistance – NGI Defense – Habeas Review

Counsel performed deficiently by failing to: adequately prep his NGI expert witness, who had performed only a competency evaluation of Wilson and wasn’t given the opportunity for a reinterview with the distinct purpose of an NGI evaluation; present testimony of family members familiar with Wilson’s mental deterioration; and retain another expert.

Given the gravity of the charge against Wilson and the ample evidence that he was driven to kill Fischer by an insane delusion,

court of appeals decision (3-judge, not recommended for publication); pro se; Resp. Br.

Assistance of Counsel – Plea-Withdrawal

Counsel’s failure to file pre-sentencing motion to withdraw plea wasn’t due to failure to investigate claimed newly discovered evidence, hence wasn’t ineffective: according to trial court findings of fact, counsel indeed considered the value of this evidence and moreover allowed Townsend himself to decide whether to file the motion,

court of appeals decision (1-judge; not for publication); for Maceo: Brian C. Findley

TPR – Assume-Responsibility Ground

Evidence sufficient to support verdict on § 48.451(6) ground of failure to assume parental responsibility for child born prematurely with significant medical needs:

¶30     The trial court accurately concluded that the evidence it outlined was sufficient to support the jury’s verdict that Maceo failed to assume parental responsibility of Jalacea.

State v. Michael James Carter, 2010 WI 40

Wisconsin supreme court decision, reversing unpublished summary order; for Carter: John T. Wasielewski; BiC (State); Resp.; Reply

Counsel made a reasonable tactical decision not to search for admissibility of sexual conduct evidence as an exception to the rape shield law. Therefore, Carter can’t show deficient performance. Separately, this evidence wouldn’t have fallen within an exception anyway,

7th circuit decision

Permissive Driver, Standing to Challenge Car Search

It is well-established that a driver of a borrowed vehicle may establish a reasonable expectation of privacy in a vehicle even though that driver is not the owner of the vehicle. … Courts have repeatedly recognized the right of a driver to assert a Fourth Amendment right to be free from unreasonable searches of a vehicle where the driver is operating that vehicle with the permission of the owner.

court of appeals decision (3-judge, not recommended for publication); for Sterling: Dianne M. Erickson; BiC; Resp.; Reply

Charging Decision – Judicial Involvement
Increase in the charge, following trial judge’s veiled suggestion to the prosecutor that such an increase would be appropriate, wasn’t occasioned by judicial interference with prosecutorial discretion, ¶¶16-22.

Initially charged with first-degree reckless injury, Sterling was ultimately convicted on an amended charge of attempted first-degree intentional homicide.

State v. Chester C., 2009AP2824, District I, 5/4/10

court of appeals decision (1-judge; not for publication); for Chester C.: Dianne M. Erickson

TPR – Effective Assistance of Counsel
Failure to demonstrate prejudice within the meaning of Strickland dooms this ineffective-assistance claim that trial counsel failed to object to various hearsay statements:

¶7     Other than complaining that his trial lawyer did not object to the hearsay we have recounted,

court of  appeals decision (3-judge; not recommended for publication); for Jackson: Mark S. Rosen; BiC: Resp.; Reply

Double Jeopardy – Retrial Following Mistrial
Mistrial on defendant’s motion, occasioned by prosecutorial failure to disclose that witness was cooperating with police in separate investigation of Jackson, didn’t bar retrial: there was no showing that the prosecutor was aware of the undisclosed information, or that failure to disclose was intended to provoke mistrial,

court of appeals decision (1-judge, not for publication); for Keri H.: Leonard D. Kachinski

IAC Claim – TPR
“The decision not to emphasize events preceding the current termination petitions was a reasonable strategic choice and does not constitute ineffective assistance of counsel,” ¶11. Separately: counsel did not perform deficiently in his efforts to obtain Keri H.’s client file from predecessor counsel, and then securing an adjournment to prepare for trial,