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Counsel wasn’t ineffective for not objecting to nonstandard five-sixths verdict instruction in TPR case

State v. Jimmy J., 2014AP573, District 1, 8/5/14 (1-judge; ineligible for publication); case activity

Trial counsel had a reasonable strategic reason for not objecting to court’s instructing TPR jury that while agreement of 10 or more jurors was necessary as to each verdict question, the same 10 jurors should agree on all the answers.

The same ten persons do not have to agree when a civil verdict presents two or more claims, § 805.09(2)Giese v. Montgomery Ward, Inc., 111 Wis. 2d 392, 401, 331 N.W.2d 585 (1983). Here the state alleged there were two different bases for termination, failure to assume parental responsibility and abandonment. (¶¶1-2). Under the general rule about five-sixths verdicts for multiple claims and Waukesha County DSS v. C.E.W., 124 Wis. 2d 47, 71–72, 368 N.W.2d 47 (1985), which determined that it was error to tell the jury that it had to agree on all the bases on which the County sought to terminate the parent’s parental rights, the trial court erred in telling the jury that “at least the same ten jurors should agree on all of the answers.” (¶3). But trial counsel deliberately decided not to object to this instruction on the theory it made jury agreement more difficult, and therefore made Jimmy J. better off. (¶3). Accordingly, Jimmy’s IAC claim is easily dispatched:

¶9 We give broad berth to claims that a lawyer gave ineffective-assistance-of-counsel when the lawyer explains his or her strategy behind what was done. …. Here, Jimmy J.’s trial lawyer fully explained why he did not object to the instruction. Thus, he was not constitutionally deficient by not objecting. Moreover, as Jimmy J.’s trial lawyer recognized, the instruction helped rather than hurt him. Thus, Jimmy J. has also not shown any prejudice.

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