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TPR – Closing Argument, GAL – Ineffective Assistance of Counsel

State v. Corrine J., 2011AP1916 / State v. Dalvin C., Sr., 2011AP1882, District 1, 3/27/12

court of appeals decision (1-judge, not for publication); for Corrine J.: Melinda A. Swartz, SPD, Milwaukee Appellate; for Dalvin C.: Jeffrey W. Jensen; case activity

Trial counsel’s failure to object to the guardian ad litem’s closing argument wasn’t prejudicial, given the strength of the case for terminating parental rights. (The argument, merits of which the court doesn’t reach, was that “the guardian ad litem improperly invoked her role as a lawyer in argument, appealed to the best interests of the child at the grounds phase of trial, see Waukesha County DSS v. C.E.W., 124 Wis. 2d 47, 61, 368 N.W.2d 47 (1985) (jury does not consider the best interests of the child standard at grounds, or factfinding, stage of termination of parental rights proceeding), and in saying that she had ‘watched these kids grow,’ argued facts not in evidence,” ¶26.

The court rejects separate challenges, that the GAL’s closing argument: improperly invoked the “best interest” of the child standard; appealed to the “golden rule”; and asserted personal knowledge of the facts, ¶¶30-35. None of the challenged remarks rendered the trial unfair, ¶38, citing State v. Wolff, 171 Wis. 2d 161, 167, 491 N.W.2d 498 (Ct. App. 1992). Oswald v. Betrand, 374 F.3d 475, 482 (7th Cir. 2004) (certain types of errors are structural, that is, harmless error does not apply), distinguished.

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