On Point blog, page 53 of 55
Counsel – Ineffective Assistance – Deficient Performance: Adequate Investigation – Expert Testimony
State v. Michael A. DeLain, 2004 WI App 79, PFR granted, on other grds.
For DeLain: Robert R. Henak
Issue/Holding: Trial counsel’s failure to “investigate and present evidence of exculpatory prior consistent statements DeLain made to co-workers” was not the product of deficient performance, given that DeLain never told counsel about these remarks, and that counsel interviewed all of the co-workers, ¶18.
Issue/Holding: Trial counsel’s failure to adduce expert testimony regarding the propriety of defendant’s “provocative therapy” approach in counseling youths was not deficient but,
Counsel – Ineffective Assistance – Deficient Performance: Failure to Investigate – Potential Alibi Witnesses
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding: Failure to locate and present the testimony of a potential alibi witness wasn’t deficient given counsel’s testimony that his investigator couldn’t locate the witness, along with Arredondo’s failure to convince the court that the investigator had been informed where the witness lived or could be located. ¶36.
Note: For authority all but saying that failure to file notice of alibi,
Counsel – Ineffective Assistance – Deficient Performance: Failure to Investigate – Potential 3rd-Party Guilt
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue: Whether trial counsel was ineffective for failing to investigate a theory of 3rd-party guilt, in the absence of any evidence linking that party to the crime.
Holding:
¶31. A trial attorney may select a particular defense from the available alternative defenses. Felton,
Counsel – Ineffective Assistance – Deficient Performance – Failure to Read Discovery – Failure to Investigate Must Be Strategic
State v. James R. Thiel, 2003 WI 111, reversing unpublished opinion of court of appeals
For Thiel: Bruce J. Rosen
Issue/Holding:
¶37. Turning to counsel’s performance, we first recognize that counsel’s failure to review certain portions of the discovery provided by the prosecution–especially Dr. Metzler’s medical reports–was deficient performance as a matter of law. In a felony case where the client potentially faces significant prison time,
Counsel – Ineffective Assistance – Deficient Performance – Failure to Research Law
State v. James R. Thiel, 2003 WI 111, reversing unpublished opinion of court of appeals
For Thiel: Bruce J. Rosen
Issue/Holding:
¶51. Third, counsel’s interpretation of Wis. Stat. § 972.11(3) reflects a failure either to research or correctly interpret relevant portions of the law. The circuit court found that counsel interpreted this statute as allowing the defense to prevent the State from presenting evidence of the complaining witness’s prior personal or medical history if the defense did not file a motion under § 972.11(3).
Counsel – Ineffective Assistance – Deficient Performance – General
Wiggins v. Smith, 539 U.S. 510 (2003) (ABA Standards, as “guides” to counsel’s duty to investigate, represent “clearly established precedent”); Keith B. Canaan v. McBride, 395 F. 3d 376 (7th Cir 2005):
We follow the Court’s lead in Strickland and Wiggins by looking first to the ABA Standards for Criminal Justice and the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.
Counsel – Ineffective Assistance – Deficient Performance – Conceding Guilt on One of Multiple Counts
State v. Gary L. Gordon, 2003 WI 69, reversing 2002 WI App 53, 250 Wis. 2d 702, 641 N.W.2d 183
For Gordon: Steven P. Weiss, SPD, Madison Appellate
Issue/Holding:
¶24. The court of appeals held that the defense attorney’s closing argument concession on the disorderly conduct while armed count was the functional equivalent of a guilty plea, improper if done without Gordon’s consent,
Counsel – Ineffective Assistance – Deficient Performance – Conceding Guilt
State v. William A. Silva, 2003 WI App 191, PFR filed 9/4/03
For Silva: Martin E. Kohler, Brian Kinstler, Donald E. Chewning
Issue/Holding: (State v. Gordon, 2003 WI 69, followed. ¶15 n. 4:)
¶19 We are satisfied that, under the circumstances, Silva’s allegations do not defeat the strong presumption that trial counsel rendered adequate assistance. Silva’s trial attorney did as well as most attorneys would have done.
Counsel – Ineffective Assistance – Deficient Performance – Examination of Witness – Eliciting Comment on Witness’s Credibility
State v. Robert L. Snider, 2003 WI App 172, PFR filed 8/22/03
For Snider: Timothy J. Gaskell
Issue/Holding: The detective’s testimony as to what he believed at the time he was conducting the investigation did not amount to a comment on the credibility of a witness, hence was not deficient performance, ¶27. Moreover, “(c)ounsel’s attempt to discredit the investigating detective by showing that he came to a premature conclusion regarding what had occurred,
Counsel – Ineffective Assistance – Deficient Performance – Investigation – Strategy Determined At Time, Not Through Hindsight
State v. Robert Jamont Wright, 2003 WI App 252
For Wright: Ann Auberry
Issue/Holding:
¶35. Wright’s appellate argument rests largely on Van Rybroek’s testimony at the Machner hearing, which documents the unreliability of eyewitness testimony. However, as the trial court aptly observed, trial counsel’s decision to forego an expert was made prior to Lomack surfacing as a potential witness and prior to the trial court’s ruling that Van Rybroek’s testimony was admissible under those changed circumstances.