During the fact-finding stage of L.H.’s TPR trial, counsel (1) failed to object to evidence that L.H’.s child, C.M., had bonded with his foster parents; (2) failed to object to an inaccurate 5/6ths verdict instruction; and (3) and agreed to only 3 peremptory strikes though L.H. was entitled to 4. The court of appeals nevertheless upheld the order terminating L.H.’s parental rights.
As is often the case with decisions finding “no prejudice,” this one begins with a lengthy, often redundant statement of facts. The first 13 pages of this decision describes L.H.’s efforts to overcome drug addiction and the many homeless shelters that she lived in. But these were not the real issues in this case.
The first issue was whether her trial lawyer was ineffective for failing to object when CM’s speech and occupational therapists testified that he had bonded with his foster parents but not with L.H. At a Machner hearing, trial counsel testified that if he had objected, the jury might have concluded that he and L.H. were trying to hide something–what exactly is not explained. The court of appeals held that the “bonding evidence” was relevant to the issue of whether L.H. had been exercising supervision and care of C.M. See ¶33. It further held that trial counsel’s failure to object was not deficient performance:
¶34 Trial counsel’s concern—wanting to present L.H. to the jury in the “best light possible” and not give the appearance they were “trying to hide something”—was a reasonable concern. Had trial counsel objected to the testimony at trial, the objection likely would have been overruled. With that, the testimony not only would have still come in to evidence, it would have been highlighted for the jury, with L.H. also appearing as if she was trying to hide something. Counsel’s strategy in deciding not to object was a reasonable one, and counsel did not perform deficiently by not objecting.
The second issue was whether trial counsel was ineffective for failing to object to an erroneous 5/6ths verdict instruction. Everyone (the parties and the court) agreed that it was wrong, but the court of appeals found “no prejudice.”
¶41 . . . Here, there was significant evidence from which the jury could conclude, at a minimum, L.H. did not have a substantial parental relationship with C.M. and failed to assume parental responsibility for him. The evidence indicated that at no point since C.M.’s birth did L.H. accept and exercise significant responsibility “for the daily supervision, education, protection and care” of C.M. See WIS. STAT. § 48.415(6)(b). Further, she makes no argument to sway us that had the erroneous language not been utilized, there is a reasonable probability that one or more additional jurors would have joined the other two dissenters—assuming those two dissenters still would have dissented if the instructions had been worded differently. We have no basis to conclude L.H. was prejudiced by the erroneous jury instruction language other than speculation, and speculation cannot support a determination of prejudice. See Erickson, 227 Wis. 2d at 774; see also State v. Domke, 337 Wis. 2d 268, ¶54 (“It is not sufficient for the defendant to show that his counsel’s errors ‘had some conceivable effect on the outcome of the proceeding.’” (quoting State v. Carter, 2010 WI 40, ¶37, 324 Wis. 2d 640, 782 N.W.2d 695 (quoting Strickland, 466 U.S. at 693)).
The last issue was whether trial counsel was ineffective for agreeing to only 3 peremptory strikes when L.H. was statutorily entitled to 4. The case was close in that on two claims against L.H. the jury voted 10-2. A difference of one juror might have yielded a 9-3 verdict. Again the court of appeals found “no prejudice” partly because L.H. had not claimed that her jury was not fair or impartial. It further explained:
¶45 While we recognize that demonstrating prejudice is not easy in a circumstance such as this, that does not relieve L.H. of the burden of having to demonstrate it. See, e.g., Erickson at 773. Here, there was no testimony provided by trial counsel that he would even have used an additional peremptory strike if he had been afforded one. Importantly, L.H. has not provided us with any basis to conclude that a juror who voted in the majority, as opposed to one of the two dissenting jurors, would have been one of those stricken if counsel had utilized another peremptory strike. Further, there is no way of knowing how the juror who ultimately would have replaced that stricken juror would have voted. Additionally, any benefit L.H. may have realized with an additional strike may have been offset by the additional strike that also would have been afforded to the County. See id. at 773-74. With regard to the issue of peremptory strikes, L.H.’s claim of prejudice relies upon complete speculation of a different outcome, which is insufficient to demonstrate prejudice. See id. at 774.