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No ineffective assistance for failing to advance novel theory

State v. Johnalee A. Kawalec, 2017AP798, 7/24/19, District 2 (not recommended for publication); case activity (including briefs)

We’ve questioned the blanket claim that a lawyer can’t be ineffective for failing to argue an unsettled proposition of law. Here we have the sort of case for which the general rule makes some sense. Kawalec was charged with theft by a bailee under Wis. Stat. § 943.20(1)(b). She was the holder of a joint bank account with the alleged victim; the victim had given her a power of attorney but the relationship fell apart and she was accused of having used some of the funds for her own benefit, rather than abiding by the prohibition on self-dealing inherent in the POA.

The jury convicted her of one counts, and postconviction she argued her trial lawyer should have advanced a defense based on another statute, Wis. Stat. § 705.03(1). That statute regulates joint bank accounts, and basically provides that any one of the account holders can take money out, regardless of who put it in. The idea is that there’s a presumption of “donative intent” for any deposit–the money is for everybody–unless there’s clear and convincing evidence to the contrary. (¶7).

The problem for Kawalec is that this presumption isn’t in the criminal statute, which of course lays out its own elements and doesn’t refer to § 705.03(1). She claims her trial lawyer should have built a case that rule in the civil statute should be imported into the criminal one. The court of appeals says that’s an interesting theory, but there’s no authority on it–so the trial lawyer wasn’t obligated to have come up with it as part of her defense. (¶11).

The court does agree with Kawalec that one of the jury instructions improperly relieved the state of its burden to show that she was a bailee–it said that the fact of the POA made her one–but finds that she clearly was, so there’s no prejudice. (¶24).

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