On Point blog, page 9 of 71
Court of Appeals addresses “split innocence” issue in criminal malpractice cases
Jama I. Jama v. Jason C. Gonzalez, 2021 WI App 3; case activity (including briefs)
In Wisconsin, a person who brings a legal malpractice suit against the lawyer who represented the person in a criminal case must prove, among other things, that he or she is actually innocent of the criminal charge. Skindzelewski v. Smith, 2020 WI 57, ¶10, 392 Wis. 2d 117, 944 N.W.2d 575; Tallmadge v. Boyle, 2007 WI App 47, ¶¶15, 18, 300 Wis. 2d 510, 730 N.W.2d 173; Hicks v. Nunnery, 2002 WI App 87, ¶¶34-49, 253 Wis. 2d 721, 643 N.W.2d 809. But what happens in a case of “split innocence,” when the person is guilty of some of the crimes but not others? In a case of first impression, the court of appeals holds the person need only prove his innocence of the specific criminal charges as to which he alleges the lawyer performed negligently.
Habeas relief granted based on trial counsel’s erroneous assessment of the need for forensic pathology expert
Larry H. Dunn v. Cathy Jess, 7th Circuit Court of Appeals No. 20-1168 (Nov. 24, 2020)
Dunn was charged with felony murder and other offenses based on the fact he had struck the victim, who was later found dead from a head injury. In a rare case that clears the high hurdles of both AEDPA and Strickland v. Washington, 466 U.S. 668 (1984), the Seventh Circuit holds his trial lawyer was ineffective for failing to call an expert witness to support his defense that his acts did not cause the victim’s death.
Trial counsel not ineffective for failing to challenge delay in search seized computer
State v. Brian A. Plencner, 2019AP517-CR, District 2, 10/28/20 (not recommended for publication); case activity (including briefs)
The court of appeals holds trial attorney was not ineffective for failing to seek suppression of evidence found on Plencner’s computer equipment based on the delay in analyzing the equipment.
Challenges to sexual assault conviction rejected
State v. Nathan J. Friar, 2019AP1578-CR, District 4, 10/22/20 (not recommended for publication); case activity (including briefs)
Friar challenges his conviction for sexual assault by use of force, claiming the circuit court erroneously admitted certain evidence and that his trial lawyer was ineffective. The court of appeals rejects his challenges.
Defense win! Trial counsel should have objected to gang affiliation references and introduced other evidence
State v. Pedro R. Mendoza, III, 2018AP2325-Cr,10/6/20, District 1 (not recommended for publication); case activity (including briefs)
A jury convicted Mendoza of 1st degree recklessly endangering safety and 1st degree endangering safety when he shot into a car occupied by H.V. and M.M.C. Mendoza claimed his trial counsel was ineffective for failing to: (1) seek exclusion of his history with the Latin Kings, (2) seek admission of evidence that H.V. and M.M.C. had previously intimidated witnesses and conspired to falsify testimony; and (3) introduce expert testimony regarding his PTSD to help show that he shot in self-defense. The circuit court ordered a Machner hearing, but denied relief. The court of appeals issued a rare reversal on all 3 ineffective assistance of counsel claims and remanded the case for a new trial.
Defense win! State failed to prove knowing waiver of right to counsel
State v. Jerry A. Leister, 2020AP365-CR, District 4, 9/24/20 (1-judge opinion, ineligible for publication); case activity
Leister, charged with intentional mistreatment of animals, wanted a lawyer but had trouble retaining one. After repeated adjournments, he wound up trying his case pro se in the absence of a colloquy to determine whether he knowingly, intelligently and voluntarily waived his right to counsel. After his conviction, he retained lawyer, who raised the issue in a postconviction motion.
Read-in images were “associated” with child porn conviction for surcharge purposes
State v. William Francis Kuehn, 2018AP2355, 7/28/20, District 1 (not recommended for publication); case activity (including briefs)
Kuehn pleaded to 5 counts of possession of child pornography; 10 more were dismissed and read-in. The court of appeals rejects Kuehn’s three challenges to his conviction and sentence. It holds trial counsel wasn’t deficient in deciding a third-party-perpetrator (Denny) defense wasn’t viable at trial. It says the circuit court properly assessed the $500 per-image surcharge for the 10 images that made up the read-ins. And, it finds not overbroad the circuit court’s imposition of an ES condition that Kuehn have no contact with his girlfriend.
Defense win: habeas relief granted on IAC claims
Michael Gilbreath v. Dan Winkleski, Case No. 19-cv-728-jdp (W.D. Wis. Aug. 4, 2020)
Witness credibility was the key issue at Gilbreath’s trial, and his counsel’s failure to present evidence that would have undermined [the complaining witness’s] credibility and bolstered Gilbreath’s defense deprived Gilbreath of a fair trial. The Wisconsin Court of Appeals unreasonably concluded that the failure to present the credibility evidence was a matter of reasonable trial strategy and that the evidence was merely cumulative. Gilbreath is entitled to habeas relief.
Defense win: state breached plea by asking for more prison than it had agreed to
State v. Desmond Myers LaPean, 2019AP1448, 7/14/20, District 3 (not recommended for publication); case activity (including briefs)
LaPean pleaded to a sexual assault of a child with an agreement that the state would cap its recommendation at 10 years of initial confinement and 10 of extended supervision. But at sentencing, the state first recommended 12 and 12. After defense counsel’s objection, the state instead requested 10 and 14. Counsel didn’t notice the second breach, but the prosecutor eventually did, telling the court the agreement was for 10 and 10. The court gave 12 and 10.
No harm where the defendant’s lawyer was also the judge who bound him over for trial
State v. Keith C. Henyard, 2020 WI App 51; case activity (including briefs)
The State charged Henyard with 8 crimes potentially leading to 157 years in prison. Commissioner Parise engaged Henyard in a colloquy, accepted his waiver of a preliminary hearing, and bound him over for trial. Parise left the bench and 5 months later sold his professional services to Henyard to get him a better deal. The majority denied Henyard’s ineffective assistance of counsel claim for lack of a prejudicial “actual conflict of interest.” Judge Reilly, in another Emperor’s New Clothes moment, dissented expressing concern about the integrity of a judiciary that obscures errors and shifts blame to defendants.