Maurice presented 7 issues for review, which the court of appeals rejected with a scant tablespoon of law. This 32-page opinion reads like a summary of trial testimony and is probably not worth your time unless you happen to be working on one of the issues or you want to see how many ways the court of appeals can reformulate the “prejudice” prong of Strickland’s test for ineffective assistance of counsel. First, here is a rundown of the issues:
¶2 . . . McNeal alleged counsel was ineffective because he did not (1) impeach the victim, M.H., regarding the timing and sequence of events during the sexual assault; (2) investigate William Norment, a source of exculpatory testimony; (3) request a pre-trial hearing to allow McNeal to introduce evidence of his prior sexual relationship with M.H.; and (4) expose M.H.’s motives to fabricate the charges. McNeal also contends that (5) there is insufficient evidence to support the guilty verdict for false imprisonment; (6) the trial court erred by denying McNeal’s request to strike Debbie Hurst’s testimony regarding a past incident of strangulation involving McNeal and M.H.; and (7) the trial court erred by denying his motion for a new trial.
Now for the court of appeals’ spins on Strickland‘s test prejudice.
¶49: “Prejudice means that but for counsel’s unprofessional errors, there is a reasonable probability that the trial’s outcome would have been different . . . A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668 694 (1984).
¶57: “McNeal overemphasizes the importance of additional impeachment about the text message timing, speculating as to a favorable result. ‘However, [t]he likelihood of a different result must be substantial, not just conceivable. Harrington v. Richter, 562 U.S. 86, 112 (2011).'”
It’s true that Harrington includes the sentence just quoted, but context is helpful. Here are the two sentences before the quoted sentence:
Instead, Strickland asks whether it is “reasonably likely” the result would have been different. Id., at 696, 104 S.Ct. 2052. This does not require a showing that counsel’s actions “more likely than not altered the outcome,” but the difference between Strickland‘s prejudice standard and a more-probable-than-not standard is slight and matters “only in the rarest case.” Id., at 693, 697, 104 S.Ct. 2052. The likelihood of a different result must be substantial, not just conceivable. Id., at 693, 104 S.Ct. 2052.
¶66 The failure to impeach M.H. on her alcohol consumption was also not prejudicial. Prejudice requires more than just a showing of a conceivable effect on the outcome of the trial. Strickland, 466 U.S. at 693. The unlikely possibility that the jury would have concluded that M.H. was lying about the assault due to her prior statement that she had two shots of alcohol is insufficient to undermine confidence in the outcome of the trial.
¶80 “In determining prejudice, this court must consider the totality of the evidence and find a likelihood that absent the errors, the jury would have reached a different decision.”
Lastly, did you know that if the court of appeals denies a series of claims for ineffective of assistance of counsel, then the defendant has no grounds to argue that he is entitled to a new trial on the grounds that his lawyer prevented the real controversy from being tried? So says the court of appeals:
¶92 Where a defendant argues under WIS. STAT. § 752.35 that he “is entitled to a new trial because counsel’s deficiencies prevented the real controversy from being fully tried,” the appropriate analytical framework is provided by Strickland. State v. Mayo, 2007 WI 78, ¶60, 301 Wis. 2d 642, 734 N.W.2d 115. We have already conducted the Strickland analysis and need not repeat it here.
The court of appeals may have examined the ineffective claims individually but it did not consider their cumulative effect. There’s a difference. Sometimes the whole is greater than the sum of its parts. See State v. Thiel, 2003 WI 111, ¶59 n. 12, 264 Wis. 2d 571, 665 N.W.2d 305.