On Point

Guerrero v. Cavey, 2000 WI App 203, 238 Wis.2d 449, 617 N.W.2d 849

Issue: Whether an attorney’s dual representation of the subject of a guardianship and her son worked a conflict of interest.

Holding: The two clients had competing interests, including the son’s desire to buy his mother’s house at below market value, and the attorney therefore had a conflict of interest, ¶¶13-17.

State v. David Kalk, 2000 WI App 62, 234 Wis. 2d 98, 608 N.W.2d 428
For Kalk: John A. Pray, UW Law School

Issue: Whether the defendant satisfied his burden of showing an actual conflict of interest stemming from his prior representation by the prosecutor on an unrelated charge.

Holding: Given the trial court’s findings of historical fact, defendant did not show that his prosecution was influenced by the prior representation.Analysis: Kalk’s prosecutor had previously represented him on an unrelated charge.

State v. David S. Leighton, 2000 WI App 156, 237 Wis.2d 709, 616 N.W.2d 126
For Leighton: Daniel Snyder

Issue: Whether defendant’s first counsel was ineffective for failing to file formal discovery demand and investigate various matters.

Holding: Because counsel withdrew before the prelim, and because there is no right to discovery before prelim, counsel couldn’t have been deficient for failing to file a demand, ¶37; because defendant failed to show what information counsel might have uncovered,

State v. Theodore Oswald, 2000 WI App. 2, 232 Wis.2d 62, 606 N.W.2d 207
For Oswald: Jerome F. Buting, Kathleen B. Stilling

Issue: Whether counsel was ineffective for rejecting an NGI defense, where two defense experts rejected the defense but after trial one acknowledged that he misunderstood the correct test and that his opinion was now different.

Holding: “Competent representation does not demand that counsel seek repetitive examinations of the defendant until an expert is found who will offer a supportive opinion.”

Vonaire T. Washington v. Smith, 219 F.3d 620 (7th Cir. 2000)
For Washington: Robert R. Henak

Issue/Holding: Trial consel’s performance was deficient in three respects:

• Last-minute issuance of subpoena for hard-to-find witness, on theory that trials are often adjourned at last minute anyway. (“(P)lacing witness convenience above the vital interests of his client does not make Mr. Engle’s decsion reasonable — or even really strategic.”)
• Failure to investigate potential defense witnesses.

Juneau County DHS v. James B., 2000 WI App 86, 234 Wis. 2d 406, 610 N.W.2d 144
For Appellant; James L. Boardman; Chris R. Velnetske

Issue: Whether judicial appointment of counsel in a CHIPS case necessarily terminates after disposition, or may be continued for appeal.

Holding: Judicial appointment of counsel in a CHIPS case doesn’t automatically terminate upon disposition, the circuit court retaining authority to continue the appointment for purposes of appeal.

State v. Samuel Terry, 2000 WI App 250, 239 Wis. 2d 519, 620 N.W.2d 217
For Terry: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding:

¶1 … Terry argues that, under the doctrine of issue preclusion, the State was precluded from criminally prosecuting him for possession of cocaine with intent to deliver because the Administrative Law Judge (ALJ), at his probation and parole revocation proceeding, determined that there was insufficient proof that Terry possessed cocaine,

State v. David J. Cleveland, 2000 WI App 142, 237 Wis. 2d 558, 614 N.W.2d 543
For Cleveland: Suzanne L. Hagopian, SPD, Madison Appellate

Issue: Whether multiple sexual assault counts arising during a single incident violated double jeopardy.

Holding: Though the offenses weren’t separated in time, each required separate volitional acts and were therefore significantly different in nature for double jeopardy purposes. ¶¶24-26.

State v. Gabriel Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, affirming State v. DeRango 229 Wis. 2d 1, 599 N.W.2d 27
For Derango: Robert G. LeBell

Issue: Whether conviction for both attempted child sexual exploitation and child enticement as a result of a single act is multiplicitous.

Holding: The two offenses are elementally distinct and therefore aren’t the “same”

State v. Rovaugn Hill, 2000 WI App 259, 240 Wis.2d 1, 622 N.W.2d 34
For Hill: Gerald P. Boyle

Issue: Whether reprosecution should be barred on double jeopardy grounds, because prosecutorial overreaching had caused a mistrial.

Holding: “[D]ouble jeopardy bars a retrial when the defendant has successfully moved for a mistrial, if the prosecutor acted with intent to gain another chance to convict or to harass the defendant with multiple prosecutions.”