On Point: 8. Counsel, 6th Am.

State v. B.H., 2016AP892-893, District 1, 12/28/16 (1-judge opinion, ineligible for publication)

B.H.’s twins were taken from her due to a report of violence between her and their father. The trial court found that she had failed to meet the conditions for their return and to assume parental responsibility. B.H. argues that those findings rest upon inadmissible hearsay in the form of testimony from the foster mother and from a social worker and in the form of a letter from the Bureau. B.H. asserts that trial counsel’s failure to object to this evidence amount to ineffective assistance of counsel.

State ex rel. Vincent Martinez v. Brian Hayes, 2014AP2095, District 2, 12/21/16 (not recommended for publication); case activity (including briefs)

Martinez claimed the lawyer who represented him at his ES revocation hearing should have objected to certain hearsay evidence and to the ALJ’s failure to find good cause for the lack of appearance of certain witnesses. The court of appeals rejects the claim because even if counsel was deficient, Martinez wasn’t prejudiced.

Lee v. United States, USSC No. 16-327, cert. granted 12/14/16

Question presented (based on the cert. petition):

To establish prejudice under Strickland v. Washington, 466 U.S. 668 (1984), a defendant who has pleaded guilty based on deficient advice from his attorney must show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Under this standard, is it always irrational for a noncitizen defendant with longtime legal resident status and extended family and business ties to the United States to reject a plea offer despite strong evidence of guilt because the plea would result in mandatory deportation or permanent exclusion?

State v. A.W., 2016AP121 through 125, 12/8/16, District 1 (1-judge opinion; ineligible for publication); case activity

When A.W. did not appear for her pretrial and was not reachable by phone, the court entered a default finding as to grounds for a TPR. She moved to vacate that finding, but then withdrew her motion. On appeal, she argued that (1) trial counsel was ineffective for advising her to withdraw the motion to vacate, and (2) the circuit court should have vacated the default so that she could address false information admitted in her case. The court of appeals refused to address the 2nd argument for reasons that penalized A.W. for mistakes her appellate lawyer allegedly made.

State v. Terry S. Shannon, 2015AP922, 12/7/2016, District 2 (not recommended for publication); case activity (including briefs)

Terry Shannon appeals the denial of his Wis. Stat. § 974.06 motion. He was convicted, at trial, of first-degree intentional homicide; he alleges his trial counsel was ineffective for not requesting that the jury be instructed on second-degree intentional.

State v. Gerrod R. Bell, 2015AP2667-2668-CR, 12/1/16, District 4 (not recommended for publication), petition for review granted 3/13/2017, affirmed, 2018 WI 28; case activity (including briefs)

Bell was convicted of sexually assaulting two sisters aged 14 and 17. At trial, the DA told the jury that it couldn’t acquit unless it first concluded that the sisters were lying and unless Bell established a reason for them to lie. On appeal, Bell argued that the DA’s argument violated the principles that the State has to prove guilt beyond a reasonable doubt, a defendant is presumed innocent, and a defendant has the right not to testify at trial. Bell also asserted ineffective assistance based on his lawyers failure to redact exhibits provided to the jury.

Winnebago County v. J.M., 2016AP619, District 2, 11/9/16 (one-judge decision; ineligible for publication), petition for review granted 5/15/17, affirmed, 2018 WI 37; case activity

J.M.’s lawyer didn’t secure civilian clothes for him to wear at his ch. 51 recommitment hearing, so he appeared before the jury in his prison greens (sans the shackles, at least; and the stun belt wasn’t visible to the jury). The court of appeals rejects the claim J.M.’s lawyer was ineffective for failing to make a modest outlay at the local Goodwill to purchase J.M. an outfit without the negative stigmata and for failing to ask for a curative instruction.

State v. Thomas D. Dowling, 2016AP838-CR, 10/26/16, District II (one-judge; ineligible for publication); case activity (including briefs)

This is an ineffective assistance claim against Dowling’s trial counsel for not moving to suppress evidence obtained after Dowling told police officers–whom his wife had allowed into their apartment–to leave.

William Hinesley, III, v. Wendy Knight, 7th Circuit Court of Appeals No. 15-2122, 2016 WL 4758437, 9/13/16

Hinesley’s trial lawyer didn’t object to the state’s presentation of the inculpatory out-of-court statements of the two principal witnesses against him because he wanted all of the witnesses’ statements admitted to show how they had changed their stories and weren’t credible. The Seventh Circuit holds the state courts reasonably concluded trial counsel wasn’t ineffective for adopting and employing this strategy.

Review of an unpublished court of appeals opinion; case activity (including briefs)

Issues (composed by On Point)

Whether Nieves’s confrontation right was violated when the trial court permitted a witness to testify about a non-testifying co-defendant’s confession that, by implication, inculpated Nieves.

Whether a surviving victim’s testimony that someone had told him Nieves was planning to kill him was admissible to show how the victim “felt.”

Whether trial counsel was ineffective for failing to investigate an alibi evidence that could have placed Nieves in Illinois on the night of the shooting.