On Point blog, page 15 of 31
Counsel not ineffective for failing to seek recusal of trial judge
Raymond E. King v. Randy Pfister, 7th Circuit Court of Appeals No. 14-3389, 2016 WL 4446105, 8/24/16
The presiding judge at King’s 2004 murder trial was a former public defender who represented King in a criminal case in 1986. KIng’s pretrial pro se efforts to get the judge recused were rebuffed. After exhausting his state court remedies, King filed a habeas petition arguing his state trial and appellate lawyers were ineffective for failing to litigate a claim that the trial judge should have been substituted from King’s case. The Seventh Circuit rejects the argument.
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.
No error in admission of other acts evidence, no prejudice on IAC claims
State v. Rodell Thompson, 2015AP1764-CR, District 4, 8/4/16 (not recommended for publication); case activity (including briefs)
The trial court didn’t erroneously exercise its discretion in deciding to admit other-acts evidence in Thompson’s trial for sexual assault, false imprisonment, and battery, and Thompson’s IAC claims fail for want of prejudice.
Court of appeals ignores “Perry Mason” moment; finds defense discovery violation, but no ineffective assistance of counsel
State v. William J. Thurber, 2015AP161-CR, 7/27/16, District 2 (not recommended for publication); case activity (including briefs)
“Was Thurber’s trial a game being played or was it a trial designed to search for the truth? Thurber is certainly no angel as evidenced by his current long-term incarceration for crimes apart from this case. I believe the justice system best defines itself by scrupulously adhering to high standards when the worst of the worst comes before it. We travel a slippery slope when we excuse mistakes by the judiciary, the State, and defense counsel because we ‘know’ the defendant is a criminal.” Slip op. ¶91. (Reilly, J. dissenting).
IAC claims not raised in first appeal can’t be revived on remand
State v. Michael S. Dengsavang, 2015AP637-CR, 6/1/16, District 1 (not recommended for publication); case activity (including briefs)
Michael Dengsavang raises several challenges to the trial court’s denial of his Machner motion. The court of appeals rejects one claim on the merits and declines to consider the rest, holding them previously abandoned.
“Im finna have to go on da run smh” is obviously incriminating
State v. Mario Martinez Redmond, 2015AP657-2015AP658-CR, 5/17/16, District 1 (not recommended for publication); case activity (including briefs)
Redmond was charged and convicted of battery, disorderly conduct, and multiple counts of witness intimidation. His appeal raised various ineffective assistance of counsel and other claims. But the most interesting issue concerns Redmond’s failed motion to suppress a cryptic text message sent from his phone.
Testimony that 90% of child sexual assault reports are true didn’t clearly vouch for victim’s credibility
State v. Esequiel Morales-Pedrosa, 2016 WI App 38; case activity (including briefs)
The case law prohibiting vouching by one witness for the credibility of another witness didn’t clearly cover a forensic interviewer’s testimony that 90% of child sexual assault reports are true. Thus, trial counsel wasn’t deficient for failing to object to the testimony.
TPR order upheld despite multiple trial errors
Racine County Human Services Dep’t v. L.H., 2015AP1872, 3/23/16, District 2 (1-judge opinion; ineligible for publication); case activity
During the fact-finding stage of L.H.’s TPR trial, counsel (1) failed to object to evidence that L.H’.s child, C.M., had bonded with his foster parents; (2) failed to object to an inaccurate 5/6ths verdict instruction; and (3) and agreed to only 3 peremptory strikes though L.H. was entitled to 4. The court of appeals nevertheless upheld the order terminating L.H.’s parental rights.
Record supported trial court’s rejection of NGI defense
State v. Corey R. Kucharski, 2013AP557-CR, 3/1/16, District 1 (not recommended for publication); case activity (including briefs)
The trial court correctly applied the elements of § 971.15, and the record supports the trial court’s finding that Kucharski failed to meet his burden of showing that he lacked mental responsibility when he killed his parents.
Misinformation about IC max does not permit plea withdrawal
State v. Jason D. Henderson, 2015AP1740-CR, District I, 3/1/16 (1-judge decision; ineligible for publication); case activity (including briefs)
Henderson pled to two misdemeanor repeaters. He now seeks to withdraw his plea on the ground that counsel was ineffective for misinforming him that the two-year maximum sentence on each count was divided into one year of initial confinement and one year of extended supervision, rather than the correct 18 month/6 month split.