On Point: 8. Counsel, 6th Am.

State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04

For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: Counsel’s failure to research admissibility of testimony which controlling caselaw plainly regards as confidential was deficient:

¶23. While Swierenga’s testimony was admissible, Geske’s was not. Crowell, which Greve reaffirmed, plainly instructs that information obtained during a court-ordered presentence investigation must remain confidential unless the court has specifically authorized its use under the limited confidentiality exception provided in Wis.

State v. Michael A. DeLain, 2004 WI App 79, PFR granted, on other grds.
For DeLain: Robert R. Henak

Issue/Holding: Trial counsel’s failure to “investigate and present evidence of exculpatory prior consistent statements DeLain made to co-workers” was not the product of deficient performance, given that DeLain never told counsel about these remarks, and that counsel interviewed all of the co-workers, ¶18.

Issue/Holding: Trial counsel’s failure to adduce expert testimony regarding the propriety of defendant’s “provocative therapy” approach in counseling youths was not deficient but,

State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz

Issue/Holding: Failure to locate and present the testimony of a potential alibi witness wasn’t deficient given counsel’s testimony that his investigator couldn’t locate the witness, along with Arredondo’s failure to convince the court that the investigator had been informed where the witness lived or could be located. ¶36.

Note: For authority all but saying that failure to file notice of alibi,

State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz

Issue: Whether trial counsel was ineffective for failing to investigate a theory of 3rd-party guilt, in the absence of any evidence linking that party to the crime.

Holding:

¶31. A trial attorney may select a particular defense from the available alternative defenses. Felton,

State v. James R. Thiel, 2003 WI 111, reversing unpublished opinion of court of appeals
For Thiel: Bruce J. Rosen

Issue/Holding:

¶37. Turning to counsel’s performance, we first recognize that counsel’s failure to review certain portions of the discovery provided by the prosecution–especially Dr. Metzler’s medical reports–was deficient performance as a matter of law. In a felony case where the client potentially faces significant prison time,

State v. James R. Thiel, 2003 WI 111, reversing unpublished opinion of court of appeals
For Thiel: Bruce J. Rosen

Issue/Holding:

¶51. Third, counsel’s interpretation of Wis. Stat. § 972.11(3) reflects a failure either to research or correctly interpret relevant portions of the law. The circuit court found that counsel interpreted this statute as allowing the defense to prevent the State from presenting evidence of the complaining witness’s prior personal or medical history if the defense did not file a motion under § 972.11(3).

State v. John S. Cooper, 2003 WI App 227, PFR filed 11/14/03
For Cooper: John A. Birdsall
Issue/Holding:

¶23. As a final matter, this court notes with dismay the multiple citations to unpublished opinions contained in Cooper’s appellate brief. The Rules of Appellate Procedure proscribe as follows:

Unpublished opinions not cited. An unpublished opinion is of no precedential value and for this reason may not be cited in any court of this state as precedent or authority,

Wiggins v. Smith, 539 U.S. 510 (2003) (ABA Standards, as “guides” to counsel’s duty to investigate, represent “clearly established precedent”); Keith B. Canaan v. McBride, 395 F. 3d 376 (7th Cir 2005):

We follow the Court’s lead in Strickland and Wiggins by looking first to the ABA Standards for Criminal Justice and the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases.

State v. Gary L. Gordon, 2003 WI 69, reversing 2002 WI App 53, 250 Wis. 2d 702, 641 N.W.2d 183
For Gordon: Steven P. Weiss, SPD, Madison Appellate

Issue/Holding:

¶24. The court of appeals held that the defense attorney’s closing argument concession on the disorderly conduct while armed count was the functional equivalent of a guilty plea, improper if done without Gordon’s consent,

State v. William A. Silva, 2003 WI App 191, PFR filed 9/4/03
For Silva: Martin E. Kohler, Brian Kinstler, Donald E. Chewning

Issue/Holding: (State v. Gordon, 2003 WI 69, followed. ¶15 n. 4:)

¶19 We are satisfied that, under the circumstances, Silva’s allegations do not defeat the strong presumption that trial counsel rendered adequate assistance. Silva’s trial attorney did as well as most attorneys would have done.