On Point: 8. Counsel, 6th Am.

State v. Evan Zimmerman, 2003 WI App 196, (AG) PFR filed 9/10/03
For Zimmerman: Keith A. Findley, UW Law School

Issue/Holding: Counsel’s failure to challenge a witness’s hypnotically refreshed testimony, as violating the guidelines of State v. Armstrong, 110 Wis. 2d 555, 329 N.W.2d 386 (1983), was deficient:

¶45. To begin, we are not persuaded by counsel’s explanation of his trial strategy.

State v. Harold C. Pote, III, 2003 WI App 30
For Pote: John A. Pray, Remington Law Center

Issue: Whether counsel was ineffective for failure to investigate a potential defense (inability to work for medical reasons) to one of two counts of nonsupport, where counsel complied with the defendant’s instruction to obtain a plea bargain involving no incarceration and the count with the potential defense was dismissed under the plea bargain.

State v. Paul L. Polak, 2002 WI App 120, PFR filed 5/3/02
For Polak: Philip J. Brehm
Issue/Holding:

¶15. When an adequate colloquy is not conducted, and the defendant makes a motion for a new trial or other postconviction relief from the trial court’s judgment, the court must hold an evidentiary hearing on whether the waiver of the right to counsel was knowing, intelligent and voluntary….¶16.

State v. Peter G. Tkacz, 2002 WI App 281, PFR filed 11/14/02
For Tkacz: Mark S. Rosen

Issue: Whether the prosecutor’s prior representation of the defendant in a civil forfeiture worked a disqualifying conflict of interest.

Holding: The standard for analyzing the existence of a conflict of interest (raised before trial) in serial representation is the “substantial relationship” test, ¶15 ( State v.

State v. Dale H. Chu, 2002 WI App, PFR filed 4/23/02
For Chu: Andrew Shaw

Issue/Holding: Counsel’s failure to retain an arson expert wasn’t deficient performance, where there was no indication the fire was anything other than arson, and defendant didn’t have sufficient funds to hire an expert. ¶¶50-52

State v. Paul L. Polak, 2002 WI App 120, PFR filed 5/3/02
For Polak: Philip J. Brehm
Issue/Holding: A defendant need not be produced for a postconviction hearing where there are no substantial issues of fact to resolve. ¶22.

State ex rel. James A. Mentek, Jr., v. Schwarz, 2000 WI App 96, 235 Wis. 2d 143, 612 N.W.2d 746, reversed on other grounds, State ex rel. James A. Mentek, Jr. v. Schwarz, 2001 WI 32

Issue: Whether appointed counsel’s failure to exhaust administrative appeals, which resulted in waiver of the right of judicial review of a revocation, can be challenged as ineffective assistance of counsel.

State ex rel. Ruven Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, reconsideration denied2002 WI 12, reversing unpublished court of appeals order
For Seibert: Gregory P. Seibold; amicus brief: Howard B. Eisenberg, Dean, Marquette Law School
Issue/Holding:

¶1. This case presents two issues. The first issue is whether an indigent sexually violent person, as defined by Wis.

State v. William Nielsen, 2001 WI App 192, PFR filed
For Nielsen: Waring R. Fincke

Issue/Holding: “This court will not find counsel deficient for failing to discover information that was available to the defendant but that defendant failed to share with counsel.” ¶24.

State v. Jose Nieves-Gonzalez, 2001 WI App 90, 242 Wis. 2d 782, 625 N.W.2d 913

Issue: Whether the trial court incorrectly applied federal poverty guidelines in refusing to appoint counsel at county expense, after the defendant failed to qualify under public defender standards.

Holding: Although federal poverty guidelines are not necessarily conclusive, they should be used “as a proper consideration for court-appointed counsel,” ¶8. Here, the court considered these guidelines in denying the defendant’s request for counsel without a hearing,