On Point: 8. Counsel, 6th Am.

State v. Jeninga, 2019 WI App 14; case activity (including briefs)

Jeninga asserted that he would not have pled guilty to a weak child sexual assault charge if his trial counsel had filed an obvious motion to suppress child porn on his cell phone. Trial counsel, who missed the suppression issue, testified that the child porn caused to her to advise Jeninga to plead guilty, and he followed her advice. The court of appeals says trial counsel’s testimony was not enough to prove prejudice. Jeninga had to testify himself.

State v. Gary Lee Wayerski, 2019 WI 11, affirming and modifying an unpublished court of appeals decision; case activity (including briefs)

The supreme court overrules Wisconsin’s longstanding test for deciding whether the state has “suppressed” favorable evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), saying the test is unsupported by and contrary to Brady and the U.S. Supreme Court’s decisions applying Brady.

State v. Kimberly C. Thomas, 2018AP304-CR, 1/15/19 (1-judge opinion, ineligible for publication); case activity (including briefs)

On the morning of her final pretrial, Thomas called her lawyer’s office to say that she just got a job, had to start that day, and couldn’t make the conference. When she didn’t show, she was charged and convicted of bail-jumping. She asserted ineffective assistance of counsel because her lawyer didn’t defend her absence. Also, he was a witness to her bail-jumping, so he should have withdrawn before the case went to trial.

State v. Samantha H. Savage-Filo, 2018AP996-CR, 1/9/19, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs).

Savage-Filo claimed that her trial counsel was ineffective for, among other things, failing to investigate electronic discovery and incorrectly assessing the strength of a video allegedly showing her take a purse (filled with jewelry) left in a cart at a store parking lot. S-F argues that the appalling quality of the video shows that the State had little evidence against her. Her trial counsel failed to appreciate this and pushed her to plead.

State v. Victor Yancey, Jr., 2018AP802-CR, 1/8/19, District 2 (1-judge opinion, eligible for publication); case activity (including briefs)

Stormy applause for Godfrey & Kahn who took this appeal pro bono and then won it! The court of appeals held that Yancey alleged a prima facie claim for ineffective assistance of counsel when he pled guilty and was entitled to a Machner hearing.  It also held that the trial court incorrectly held that to establish prejudice Yancey had to show a “reasonable probability that he would have been able to mount a successful challenge to the State’s evidence at a trial.”

Scott Schmidt v. Brian Foster, 7th Circuit Court of Appeals No. 17-1727, 12/20/18, reversing panel decision of 5/29/18

Schmidt, as we discussed in our post on the Seventh Circuit’s (now reversed) habeas grant, was summoned into chambers and questioned by the judge about the testimony he wanted to give in his defense. His lawyer was allowed to be there but was forbidden, outside of a brief limited consultation, to participate. A majority of the en banc court, over sharp dissent, now says that even though that was pretty clearly unconstitutional, Schmidt’s conviction stands because of the AEDPA standard.

State v. Danny L. Wilber, 2016AP260, 12/26/18, District 1 (not recommend for publication); case activity (including briefs)

“This case involves a dual tragedy: the death of one innocent man and the conviction of another.” (Initial Brief at 1). Not one of the many eyewitnesses to this homicide, which occurred during a large house party, saw Wilber shoot Diaz, the deceased. In fact, Diaz was shot in the back of the head and fell face first toward Wilber, not away from him. The State’s theory was that the shot spun Diaz around causing him to fall toward the shooter. It offered no expert to prove that this was possible.

State v. Dedric Earl Hamilton, Jr., 2018AP200-CR, 12/26/18, District 1 (not recommended for publication); case activity (including briefs)

A jury convicted Hamilton of 1st-degree sexual assault of his 8-year old niece. On appeal, he argued that: (1) he was he entitled to a hearing on his postconviction motion in which he alleged, with the support of two experts, that his attorney provided ineffective assistance when she failed either to challenge the voluntariness of his Miranda waiver and subsequent confession or to present evidence calling its reliability into question at trial; and (2) he was entitled to a new trial in the interests of justice.

State v. Sadiq Imani, 2018AP596-CR, District 1, 12/18/18 (not recommended for publication); case activity (including briefs)

Imani doesn’t get a Machner hearing on his ineffective assistance of counsel claim because the court of appeals concludes the record shows counsel’s alleged errors didn’t prejudice Imani.

Hatem M. Shata v. Denise Symdon, No. 16-CV-574 (E.D. Wis. Dec. 12, 2018)

Shata’s case was one of two our supreme court decided on the same day–both held counsel not ineffective for failing to give accurate advice on immigration consequences. You can see our prior post for the facts and our analysis of those decisions. Basically, counsel told Shata that pleading to the charged drug count would carry a “strong chance” of deporation, when in fact deportation was mandatory. Unlike our supreme court, the federal court now says that this wasn’t good enough–and further, that the supreme court’s conclusion that it was good enough was an unreasonable application of the law that SCOTUS clearly established in Padilla v. Kentucky, 559 U.S. 356 (2010).