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SCOW to address ineffective assistance of counsel and allowing client to appear in prison garb at Chapter 51 trial

Winnebago County v. J.M., 2016AP619, 5/15/17, granting a petition for review of  an unpublished court of appeals decision; case activity 
Issues:
Whether the subject of a §51.20(1)(a) extension of involuntary commitment and medication order has a claim for ineffective assistance of trial counsel where his lawyer fails to object to, prevent the admission of, or request a curative instruction to address, evidence of his prisoner status during his jury trial?
Whether the subject of a §51.20(1)(a) extension of involuntary commitment and medication order is entitled to a new trial in the interests of justice where the jury repeatedly sees and hears evidence of his prisoner status?

As noted in our post on the court of appeals decision, a person undergoing a Chapter 51 commitment has a statutory and constitutional right to counsel. State ex rel Memmel v. Mundy, 75 Wis. 2d 276, 249 N.W.2d 573 (1977). When the legislature provides for the right to counsel, it means the right to the effective assistance of counsel. In the interest of M.D.(S)., 168 Wis. 2d 995, 485 N.W.2d 52 (re TPR cases).  Aside from Memmel, there is no published Wisconsin opinion establishing the same principle for Chapter 51 cases or deciding whether the Strickland test applies. Believe it or not, the court of appeals seemed skeptical on this point.

Whether a person undergoing a Chapter 51 commitment can be forced to stand trial in prison garb accompanied by uniformed guards is also an issue of first impression for Wisconsin. You would think that the answer is a no brainer given Specht v. Patterson, 386 U.S. 605, 608 (19670(a mental commitment proceeding is subject to the constitutional guarantee of due process) and Estelle v. Williams, 425 U.S. 501, 505 (1976)(compelling a criminal defendant to stand trial in prison clothes violates due process). But the court of appeals held that no case requires a lawyer to provide his client with civilian clothes to wear at a Chapter 51 trial. Hopefully SCOW will straighten things out.

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