On Point blog, page 5 of 31
Defense win! Trial counsel ineffective for failing to challenge inaccurate cell site claims, calling client a “scumbag”
State v. Ronald Lee Gilbert, 2019AP2182, 6/22/21, District 1 (not recommended for publication); case activity (including briefs)
When last we saw this sex-trafficking case, the court of appeals had reversed the trial court’s denial of a Machner hearing on three claims. They were that Gilbert’s trial counsel was ineffective for failing to: challenge the admission of incorrect cell site location information (CSLI) testimony; demand discovery before trial; and impeach the State’s star witnesses with prior inconsistent statements. The discovery claim went away based on the subsequent Machner hearing testimony, but the court of appeals now again reverses the circuit court’s holdings on the other two, and orders a new trial.
Defense win! Court of appeals reverses homicide conviction due to State’s use of snitch
State v. Richard Michael Arrington, 2021 WI App 32; review granted 9/14/21, reversed, 2022 WI 53; case activity (including briefs)
Arrington was being held at the Brown County Jail for 1st-degree homicide when another inmate, Miller, began chatting with him about his case. Turns out Miller was a snitch for State. With the assistance of police, Miller recorded his conversations with Arrington. Then the State used Arrington’s statements to obtain a homicide conviction. The court of appeals held that the State’s use of the snitch violated Arrington’s 6th Amendment right to counsel, and his trial lawyer was ineffective for failing to move to suppress the evidence.
COA holds declining to give a “statement” doesn’t invoke Miranda right not to answer “questions”
State v. Chardez Harrison, 2019AP2151, 3/23/21, District 1 (not recommended for publication); case activity (including briefs)
Harrison was arrested on suspicion of some armed robberies and carjackings. While he was in custody, a detective read him the Miranda warnings. The version of the warnings printed on cards for the Milwaukee police to use apparently concludes with a question: “Realizing that you have these rights, are you now willing to answer some questions or make a statement?” (¶6). Harrison responded to this question by saying “I don’t want to make no statement right now.” Pretty clear invocation, right? Wrong, says the court of appeals.
COA splits on prejudice caused by counsel’s ineffective presentation of Denny defense
State v. General Grant Wilson, 2018AP183-CR, 1/12/21, District 1 (not recommended for publication); case activity (including briefs)
This marks the 3rd time the court of appeals has addressed Wilson’s case. In this appeal, the sole question is whether trial counsel provided ineffective assistance of counsel. The circuit court found deficient performance but not prejudice. Two judges, White and Blanchard affirm. Brash filed an 18-page dissent arguing that the cumulative effect of several deficiencies warrants a new trial.
Habeas relief granted based on trial counsel’s erroneous assessment of the need for forensic pathology expert
Larry H. Dunn v. Cathy Jess, 7th Circuit Court of Appeals No. 20-1168 (Nov. 24, 2020)
Dunn was charged with felony murder and other offenses based on the fact he had struck the victim, who was later found dead from a head injury. In a rare case that clears the high hurdles of both AEDPA and Strickland v. Washington, 466 U.S. 668 (1984), the Seventh Circuit holds his trial lawyer was ineffective for failing to call an expert witness to support his defense that his acts did not cause the victim’s death.
Defense win! Trial counsel should have objected to gang affiliation references and introduced other evidence
State v. Pedro R. Mendoza, III, 2018AP2325-Cr,10/6/20, District 1 (not recommended for publication); case activity (including briefs)
A jury convicted Mendoza of 1st degree recklessly endangering safety and 1st degree endangering safety when he shot into a car occupied by H.V. and M.M.C. Mendoza claimed his trial counsel was ineffective for failing to: (1) seek exclusion of his history with the Latin Kings, (2) seek admission of evidence that H.V. and M.M.C. had previously intimidated witnesses and conspired to falsify testimony; and (3) introduce expert testimony regarding his PTSD to help show that he shot in self-defense. The circuit court ordered a Machner hearing, but denied relief. The court of appeals issued a rare reversal on all 3 ineffective assistance of counsel claims and remanded the case for a new trial.
Read-in images were “associated” with child porn conviction for surcharge purposes
State v. William Francis Kuehn, 2018AP2355, 7/28/20, District 1 (not recommended for publication); case activity (including briefs)
Kuehn pleaded to 5 counts of possession of child pornography; 10 more were dismissed and read-in. The court of appeals rejects Kuehn’s three challenges to his conviction and sentence. It holds trial counsel wasn’t deficient in deciding a third-party-perpetrator (Denny) defense wasn’t viable at trial. It says the circuit court properly assessed the $500 per-image surcharge for the 10 images that made up the read-ins. And, it finds not overbroad the circuit court’s imposition of an ES condition that Kuehn have no contact with his girlfriend.
Defense win: habeas relief granted on IAC claims
Michael Gilbreath v. Dan Winkleski, Case No. 19-cv-728-jdp (W.D. Wis. Aug. 4, 2020)
Witness credibility was the key issue at Gilbreath’s trial, and his counsel’s failure to present evidence that would have undermined [the complaining witness’s] credibility and bolstered Gilbreath’s defense deprived Gilbreath of a fair trial. The Wisconsin Court of Appeals unreasonably concluded that the failure to present the credibility evidence was a matter of reasonable trial strategy and that the evidence was merely cumulative. Gilbreath is entitled to habeas relief.
Defense win: state breached plea by asking for more prison than it had agreed to
State v. Desmond Myers LaPean, 2019AP1448, 7/14/20, District 3 (not recommended for publication); case activity (including briefs)
LaPean pleaded to a sexual assault of a child with an agreement that the state would cap its recommendation at 10 years of initial confinement and 10 of extended supervision. But at sentencing, the state first recommended 12 and 12. After defense counsel’s objection, the state instead requested 10 and 14. Counsel didn’t notice the second breach, but the prosecutor eventually did, telling the court the agreement was for 10 and 10. The court gave 12 and 10.
No harm where the defendant’s lawyer was also the judge who bound him over for trial
State v. Keith C. Henyard, 2020 WI App 51; case activity (including briefs)
The State charged Henyard with 8 crimes potentially leading to 157 years in prison. Commissioner Parise engaged Henyard in a colloquy, accepted his waiver of a preliminary hearing, and bound him over for trial. Parise left the bench and 5 months later sold his professional services to Henyard to get him a better deal. The majority denied Henyard’s ineffective assistance of counsel claim for lack of a prejudicial “actual conflict of interest.” Judge Reilly, in another Emperor’s New Clothes moment, dissented expressing concern about the integrity of a judiciary that obscures errors and shifts blame to defendants.