¶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). This is an unreasonable view of this statute, as the statute does not preclude the state from offering relevant and not overly prejudicial evidence. Although counsel claimed that the failure to file the motion was for strategic reasons, the strategy was based on an erroneous view of the law and ultimately barred Thiel from presenting information contained in JoAnn’s medical records. By contrast, counsel’s lapse did not hinder the prosecution’s ability to present JoAnn’s personal or medical records. Thus, counsel’s failure to understand the statute and his concomitant failure to file a motion under its provisions were deficient as a matter of law.
Counsel’s reading of the pertinent statute was clearly wrong: what about when the statute is ambiguous, and hasn’t yet been clarified by caselaw? One court sizes it up this way, Burdge v. Palmateer, OR SCt No. S50753, 5/12/05:
The Court of Appeals and petitioner both incorrectly assume that, because a court eventually recognized a statute’s ambiguity, any lawyer exercising reasonable professional skill and judgment would have done the same. But issues do not recognize themselves; the task of identifying and evaluating potential issues rests on the skills of the lawyer. Although that is a skill, the Court of Appeals’ majority nevertheless failed to apply the “reasonable professional skill and judgment” test to its exercise. The correct rule remains as this court described it previously, with the caution that it must be applied to all aspects of a lawyer’s reasoning process, not just to selected parts. In situations similar to this one, the post-conviction court may grant a petitioner relief only if it can say affirmatively that a lawyer exercising reasonable professional skill and judgment would have recognized the statutory ambiguity, would have seen an interpretation that could benefit the defendant, and would have concluded under the circumstances that the potential benefits of advancing that interpretation exceeded any risks.
With regard to ambiguous case law, see State v. Thayer, 2001 WI App 51, ¶ 14 (“If, however, case law on an issue can be reasonably analyzed in two different ways, the law is unclear; counsel is not required to argue a point of law that is unclear. See State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994).”). The cited case, McMahon, indeed says that counsel need not “argue a point of law that is unsettled.” Sometimes, though, murkiness signifies flux and thus amount to a warning signal, as when (appellate) counsel fails to track change in pertinent law: See, e.g., Ballard v. U.S., 6th Cir No 03-5117, 3/10/05 (“while we do not require attorneys to foresee changes in the law, once a change – particularly an important and relevant change – does come about, we do expect counsel to be aware it. … As such, we believe that Ballard was fully entitled to the benefit of legal arguments relying on both those opinions.”).Nor is it quite as simple as saying, “we do not require attorneys to foresee changes ….” Sometimes, a favorable result lurks in the ability to see that the law is in flux, or takes a bit of extrapolation. The main Wisconsin case, State v. Hubert, 181 Wis.2d 333, 510 N.W.2d 799 (Ct.App. 1993), articulates a workable standard of attorney diligence: “We would hold defense attorneys to an impossible burden were we to require total and complete knowledge of all aspects of reported criminal law, no matter how obscure. Thus, we conclude that counsel’s unawareness of this narrow slice of law was reasonable and understandable.” As an abstract statement of principle, this is unobjectionable, even mundane. But obscurity may be in the eye of the beholder, and the court’s application of the principle to the particular facts — presence of uniformed firemen at arson trial; counsel’s unfamiliarity with caselaw proscribing spectators who make point one way or another at defendant’s expense not deficient performance — leaves quite a bit to be desired. Indeed, Hubert goes on to say that the presence of the firemen if anything helped the theory of defense, hence wasn’t prejudicial; the discussion on deficient performance therefore may plausibly be regarded as dicta.
In any event, Hubert‘s disavowal of counsel’s obligation to track an “obscure” aspect of caselaw was in reference to Norris v. Risley, 918 F.2d 828, 830 (9th Cir. 1990), which held that display of ant-rape buttons in the courtroom denied fair trial. Interestingly, the 9th Circuit subsequently held that Norris not only did not address an obscure area of law, but was of a piece with clearly controlling Supreme Court precedent, see Musladin v. Lamarque, 9th Cir No. 03-16653, 4/8/05 (“At a murder trial in which the central question is whether the defendant acted in self-defense, are a defendant’s constitutional rights violated when spectators are permitted to wear buttons depicting the ‘victim’? We conclude that under clearly established Supreme Court law such a practice interferes with the right to a fair trial by an impartial jury free from outside influences.”), and although that result was later overturned,Carey v. Musladin, No. 05-785, 12/11/06, it was on the narrow ground that the absence of controlling precedent on the underlying merits meant that a 2254 habeas petition simply wasn’t supportable. All the more reason, then, to lodge the proper objection, so the issue is preserved on direct appeal. See also, e.g., Lanham v. Commonwealth, KY No. 2003-SC-0268-MR, 8/25/05, fn. 67, string-citing instances where waiver bar imposed for failing to object to similar display. Of course, properly preserved objection isn’t a magic bullet in the final analysis. E.g., State v. Lord, Wash. SCt. No. 77472-2, 8/30/07 (mere “of lapel buttons, showing a picture of the victim” not prejudicial, court distinguishing buttons in Norris as being against rape, thereby implying guilt).
For the idea that counsel isn’t held to a standard of “clairvoyance” in predicting future developments in the law, see e.g., Fountain v. Kyler, 3rd Cir No. 03-477, 8/25/05; like effect: Miller v. Lambert, OR SCt No. S51716, 1/12/06 (despite ferment in caselaw, counsel not expected to foresee that two years Apprendi would overrule settled law). But see Hoffman v. Arave, 9th Cir No. 02-99004,7/5/06:
We do not fault Wellman for failing to predict the outcome of these divergent opinions. We do not expect counsel to be prescient about the direction the law will take. … (¶) … We nonetheless find that Wellman’s representation of Hoffman during the plea bargaining stage was deficient for two reasons: first, Wellman based his advice on incomplete research, and second, Wellman recommended that his client risk much in exchange for very little.
Note: Cert was granted in Hoffman, Arave v. Hoffman, USSC No. 07-110, 11/5/07, but was dismissed as moot 1/7/08. For colorful phrasing of problem, see, Haines v. Risley, 1st Cir No. 03-2011, 6/24/05: “It is not so much a matter of counsel exercising a reasonable choice among various arguments; rather, we do not credit the idea that competent counsel should inevitably have conceived of and credited a line of argument so abstruse, debatable and contingent. The standard for competence cannot be Herbert Wechsler.”