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State v. David W. Domke, No. 2009AP2422-CR, review granted, 2/8/11

decision below: unpublished; case activity

Issues (formulated by On Point):

Whether Domke was denied effective assistance of counsel by trial counsel’s: failure to object to inadmissible hearsay in the form of a social worker’s testimony reciting the complainant’s recitation of the alleged sexual assaults; producing, without first interviewing her, the complainant’s mother as a defense witness who proceeded to testify that she believed the complainant “100 percent.”

Ineffective assistance claims are bipartite, of course: deficient performance and prejudice. They are also almost necessarily fact-specific. Why, then, review this decision? (A rhetorical question, given the grant of relief by the court of appeals. But here we are.) The first instance of deficient performance is based on counsel’s undisputed ignorance of the idea that the hearsay exception for medical diagnosis or treatment doesn’t apply to a social worker; see State v. Huntington, 216 Wis. 2d 671, 695, 575 N.W.2d 268 (1998) (¶42: “We decline, however, to apply the hearsay exception for statements made for medical diagnosis or treatment, Wis. Stat. § 908.03(4), to statements made to counselors or social workers. Such an expansive application of the doctrine would strain the traditional grounds for the exception.”). The State, asserting that counsel isn’t supposed to know “all aspects of criminal law, no matter how obscure,” argues that failure to know about the Huntington holding can’t support deficient performance, slip op., ¶3. See also State’s Resp. Br. in court of appeals, p. 11, citing State v. Hubert, 181 Wis. 2d 333, 340-41, 510 N.W.2d 799 (Ct. App. 1993). But, you are likely to protest, all Hubert says is that an attorney isn’t held to know about foreign, non-binding authority, even if pertinent to the issue at hand – and you would be right! Counsel indeed is expected to research and correctly interpret relevant portions of the law, State v. James R. Thiel, 2003 WI 111, ¶51, precisely what counsel here failed to do. What counsel is not expected to do is “to argue a point of law that is unclear,” State v. Thayer, 2001 WI App 51, ¶14; or, “to argue a point of law that is unsettled,” State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994). If the only on-point authority is from a foreign source, then maybe you can say that Wisconsin law is unsettled or unclear, and counsel isn’t obligated to be familiar with it. But where Wisconsin caselaw is settled on a point relevant to the case at hand, does it make sense to say that counsel equally has no duty to know about it? Counsel isn’t expected to know about foreign authority; or binding authority? Why have standards of performance at all? It gets better still. Having invoked Hubert, the State proceeds to argue that under foreign authority, cases interpreting the federal rules of evidence “are at odds with Huntington and demonstrate the reasonableness of defense counsel’s belief that” the hearsay statements were admissible, Resp. Br., COA, p. 12. Foreign authority is irrelevant to fill in a gap in Wisconsin caselaw, but highly relevant to create a gap where none otherwise exists; heads, the State wins, tails, you lose.

The court of appeals termed the 2nd instance of deficient performance – calling to the stand a witness without first interviewing her – even “more serious” than the first, slip op., ¶7. The State doesn’t really argue otherwise, arguing instead that the deficiency wasn’t prejudicial. Which makes the case entirely fact-specific, as opposed to review-worthy.

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