On Point blog, page 29 of 71
Challenge to postconviction counsel’s representation fails
State v. Larry D. Wright, 2014AP2672, District 1, 11/24/15 (not recommended for publication); case activity (including State’s brief)
The court of appeals rebuffs Wright’s claim that postconviction counsel was ineffective for not raising a claim of ineffective assistance of trial counsel on direct appeal. The court also rejects Wright’s claim that the trial court engaged in improper ex parte communication with the jury during deliberations.
Evidence of retail theft sufficient; ineffective assistance claim fails because lawyer should have assumed client was lying
State v. Daniel Scott Klinkenberg, 2015AP331-CR, District 4, 11/5/15 (1-judge opinion, ineligible for publication); case activity (including briefs)
This is one of those really fact-specific decisions. The centerpiece of the State’s case against Klinkenberg for retail theft was security camera footage that did not show him concealing merchandise of leaving the store with unpurchased merchandise. Yet the jury convicted, and the court of appeals affirmed.
Multiple challenges to OWI 1st rejected
State v. Joseph William Netzer, 2015AP213, District 4, 10/29/15 (one-judge decision; ineligible for publication); case activity
¶1 …. Netzer argues on appeal that he received ineffective assistance of counsel, was denied his constitutional right to a jury trial, and that the results of his blood tests were impermissibly admitted into evidence. We conclude that Netzer possessed no constitutional right to effective assistance of counsel in a civil proceeding,
Introduction of evidence of prior TPR, parenting of other children, didn’t entitle parent to new TPR trial
Sauk County DHS v. A.C., 2015AP898 & 2015AP899, District 4, 10/22/15 (one-judge decision; ineligible for publication); case activity
A.C.’s trial lawyer was not ineffective for failing to take steps to exclude evidence about the termination of A.C.’s rights to a child in a prior case and about her parenting conduct toward that child and another child.
GAL’s representation of corporation counsel in unrelated matter didn’t create conflict of interest in TPR case
La Crosse County HSD v. C.J.T., 2015AP252, District 4, 10/16/15 (one-judge decision; ineligible for publication); case activity
The fact that the County’s attorney handling this TPR proceeding retained the GAL in the case to represent the her in an unrelated personal injury matter didn’t create a conflict of interest that required a new trial.
Defendant’s behavior counts against him for speedy trial purposes, but doesn’t show he was incompetent to represent himself
State v. Ennis Lee Brown, 2015AP522-CR, District 1, 10/9/15 (not recommended for publication); case activity (including briefs)
The 14½-month delay in trying Brown didn’t violate his right to a speedy trial, as “all of the delays are attributable to the defense, and most are attributable to Brown’s poor behavior and inability to work with his assigned counsel.” (¶56). At the same time, the trial court didn’t err in allowing Brown to proceed pro se at the start of trial, as Brown’s “poor behavior and inability to work with his assigned counsel” don’t show Brown was incompetent to represent himself.
SCOTUS: “Right to counsel” guarantees reasonable competence not perfect advocacy
Maryland v. Kulbicki, USSC No. 14-848 (per curiam) (October 5, 2015) granting cert and reversing Kulbicki v. State, 99 A.3d 730, 440 Md. 33 (2014); SCOTUSblog page
This is a summary reversal of a Maryland Court of Appeal’s decision, which held that Kulbicki’s defense lawyers were constitutionally ineffective back in 1995. A jury convicted Kulbicki of 1st-degree murder for shooting his mistress. The State’s case rested on a Comparative Bullet Lead Analysis, which the scientific community generally accepted then, but doesn’t now.
Circuit court must hold hearing on allegation that defendant wasn’t advised about domestic abuse modifier
State v. Martin F. Kennedy, 2015AP475-CR, District 1, 9/29/15 (one-judge decision; ineligible for publication); case activity (including briefs)
The circuit court erred in denying Kennedy’s plea withdrawal motion without a hearing, as the record of the plea shows he wasn’t advised about the domestic abuse modifier at the time of his plea and Kennedy alleged his trial lawyer was ineffective for failing to advise him of the modifier.
References to victim’s truthfulness, parochial schooling don’t merit new trial
State v. Joshua J. Feltz, 2014AP2675-CR, District 1, 9/29/15 (not recommended for publication); case activity (including briefs)
Feltz hasn’t shown his defense was prejudiced when his trial counsel elicited a statement about the truthfulness of the victim. Nor was defense counsel deficient in agreeing to allow the prosecutor to refer in closing to the victim attending a school “where moral guidance is provided.”
State court’s exclusion, on hearsay grounds, of exculpatory evidence didn’t violate right to present defense
Wayne Kubsch v. Ron Neal, 7th Circuit Court of Appeals No. 14-1898, 8/12/15
After being convicted of murdering his wife, her son, and her ex-husband, Kubsch was sentenced to death. He challenged his conviction and sentence in a federal habeas proceeding on three grounds: (1) the Indiana trial court excluded evidence of a witness’s exculpatory hearsay statement to police; (2) his trial counsel was ineffective in seeking admission of the witness’s hearsay statement; and (3) his waiver of counsel and choice to represent himself at the sentencing phase of his trial were not knowing and voluntary. The court, over a dissent by one judge as to the first and second claims, rejects Kubsch’s arguments.