On Point blog, page 29 of 31
Evidence – Daubert; Discovery – Witness Notes; Briefs – Argumentation and SCRs; Closing Argument – Failure to Object; Ineffective Assistance – Failure to Investigate; Newly Discovered Evidence
State v. Christopher D. Jones, 2010 WI App 133; for Jones: Amelia L. Bizzaro; for Amicus, Innocence Network: Jerome F. Buting; BiC; Resp.; Reply; Amicus Br.
Evidence – Daubert – Bullet Traced to Particular Gun
The court rejects “a blanket rule barring as a matter of course all testimony purporting to tie cartridge cases and bullets to a particular gun”:
¶22 Unlike in the federal system,
Sentence – Factors – Exercise of Constitutional Right; Sentence – Effective Assistance of Counsel
State v. Sabian L. Yunck, 2009AP3020-CR, District 1, 8/17/10
court of appeals decision (1-judge, not for publication); for Yunck: Byron C. Lichstein; BiC; Resp.; Reply
Sentence – Factors – Exercise of Constitutional Right
Convicted of violating a domestic abuse order forbidding contact with the mother of his child, Yunck argues that sentence was impermissibly based on his exercise of a constitutional right,
Habeas – Procedural default, Evidentiary hearing
Alan Ward v. Deppisch, 7th Cir No. 08-2809, 07/23/2010
7th circuit decision, review of unpublished court of appeals decision
Habeas – Procedural Default
The state argues that Ward procedurally defaulted his claim because he failed to fairly present the Wisconsin courts with a federal issue, and the state courts ruled against Ward based on adequate and independent state law grounds. We disagree. A review of Ward’s postconviction motion before the state court shows that he fairly presented a federal issue.
Evidence / IAC: Comment on Refusal to Provide DNA; Instruction: Recording Policy Interrogation; Impeachment: Prior Convictions
State v. Tarence A. Banks, 2010 WI App 107; for Banks: Scott D. Obernberger; BiC; Resp.; Reply
Evidence – Comment on Refusal to Provide DNA – Ineffective Assistance
Prosecutorial use of Banks’ refusal, after arrest, to provide a warrantless DNA sample penalized him for exercising a constitutional right. Because no contemporaneous objection was made, the issue is raised as ineffective assistance of counsel,
Habeas – exhaustion, effective assistance
Freddie L. Byers, Jr., v. Basinger, 7th Cir No. 09-1833, 7/9/10
Habeas – Exhaustion
To exhaust a federal claim, a 2254 petitioner must have “fairly presented” it to the state court.
… We use four factors to evaluate whether a petitioner has “fairly presented” his claim: “1) whether the petitioner relied on federal cases that engage in a constitutional analysis; 2) whether the petitioner relied on state cases which apply a constitutional analysis to similar facts;
Effective Assistance – Prejudice
Sears v. Upton, USSC No. 09-8854, 6/29/10
United States Supreme Court decision
The state court concluded that in this death penalty case, counsel failed to conduct more than a cursory penalty-phase investigation (and thus failed to determine that Sears suffered significant frontal lobe damage and had endured significant childhood abuse). However, the state court also concluded that it couldn’t find prejudice because counsel adduced some mitigation —
Habeas – Ineffective Assistance – Suppression Motion
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.
Effective Assistance – Rape Shield
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,
TPR – Effective Assistance of Counsel
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,