On Point blog, page 3 of 6
Check out this terrific resource on ineffective assistance of counsel claims!
Former ASPD John Breffeilh just brought a real gem to On Point’s attention. It’s an indexed compilation of hundreds (maybe thousands) of successful ineffective assistance of counsel cases from around the nation. The database runs from 1984 when SCOTUS decided Strickland through the present. It includes Wisconsin cases and covers everything from criminal cases, to sexual predator cases, to involuntary mental commitments.
Skimming this resource can help you (a) avoid missteps and/or (b) find the perfect case to support your client’s ineffective assistance of counsel claim.
Hearing required on whether trial counsel was deficient for failing to call witness
State v. George D. Taylor, 2015AP1325-CR, 4/27/17, District 1/4 (not recommended for publication); case activity (including briefs)
Taylor raises a host of challenges to his felony murder conviction. The court of appeals rejects all of them except one: an ineffective assistance of counsel claim, which the court orders must be assessed at a Machner hearing.
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.
Counsel ineffective; failed to challenge credibility in swearing contest
State v. Rafael D. Honig, 2016 WI App 10; case activity (including briefs)
Honig, convicted at trial of two first-degree child sexual assaults, asserts that his trial counsel mishandled three issues bearing on the credibility of his accusers; the court of appeals agrees.
Freed from the shackles of AEDPA deference, Seventh Circuit finds trial counsel in homicide case ineffective for failing to consider consultation with forensic pathology expert
Oscar C. Thomas v. Marc Clements, 7th Circuit Court of Appeals No. 14-2539, 6/16/15, petition for rehearing en banc denied, 8/7/15
Thomas is entitled to a new trial for the intentional homicide of Joyce Oliver-Thomas, his ex-wife, because his trial lawyer was ineffective for failing to ask a pathology expert to review the conclusions of the state’s forensic pathologist—conclusions on which the prosecutor relied heavily in arguing that Thomas caused Oliver-Thomas’s death intentionally rather than accidentally, as Thomas claimed.
Trial counsel found ineffective; promised defendant would testify, told jury about defendant’s sordid past, failed to elicit impeachment evidence
State v. James Richard Coleman, 2015 WI App 38; case activity (including briefs)
Coleman’s trial lawyer was ineffective for telling the jury Coleman would testify when Coleman had never said he intended to testify; for telling the jury that Coleman had a prior criminal conviction; and for failing to impeach the victim’s allegations by eliciting inconsistent statements she made to other witnesses.
Medical examiner’s reliance on toxicology report of out-of-state lab violated defendant’s right to confrontation
State v. Jason S. VanDyke, 2015 WI App 30; case activity (including briefs)
In this prosecution for reckless homicide by delivery of heroin, VanDyke’s right to confrontation was violated where the medical examiner relied on the toxicology report of an out-of-state drug testing lab to conclude the victim had died of a heroin overdose, the toxicology report was admitted into evidence as part of the autopsy report, but no witness from the lab was called to testify about the toxicology testing.
Trial counsel held ineffective; DA chastised for taking advantage of deficient performance
State v. Charles C.S., Jr., 2014AP1045, 2/11/15, District 2 (not recommended for publication); click here for docket
Ouch! This is the rare case where the court of appeals found both the deficient performance and the prejudice required for an “ineffective assistance of trial counsel” claim. Such decisions can be hard on the defense attorney, but in this case the DA took a beating.
SCOW deems trial counsel ineffective for failing to call eyewitness with credibilty problems; orders new trial
State v. Jimothy A. Jenkins, 2014 WI 59, 7/11/14, review of an per curiam court of appeals decision; majority opinion by C.J. Abrahamson; case activity
This is a very nice victory for the defense. It clarifies the “prejudice” showing required for a claim of ineffective assistance of trial counsel. And it assures lower courts that, where trial counsel fails to call an eyewitness whose credibility can be challenged, it is still quite possible to show the prejudice required for a new trial. After all, witness credibility is for the jury to decide.
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.