On Point

State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski

Issue/Holding: The trial court erroneously disqualified retained postconviction counsel from litigating an ineffective-assistance claim against his former law partner, the trial attorney:

¶21      Our review of the transcripts reveals little about what the circuit court feared would happen at the Machner hearing; specifically, what risk Petit’s representation posed to Peterson or to the integrity of the judicial system. ……

¶23      A sua sponte disqualification inquiry presents a palpable risk of unfairly denying a party the right to retain counsel of his or her choosing. “The right to retained counsel of choice is supported by three basic tenets of our adversary system: trust, autonomy, and fairness.” Janet C. Hoeffel, Toward a More Robust Right to Counsel of Choice, 44 San Diego L. Rev. 525, 540 (Summer 2007). “Basic trust between counsel and defendant is the cornerstone of the adversary system ….” Linton v. Perini, 656 F.2d 207, 212 (6th Cir. 1981). Notwithstanding the importance of preserving the integrity of the courts and the confidence of the public, attorney disqualification should not be imposed cavalierly. Here, the court did not explain what problem it anticipated if Petit continued, the court did not describe any potential ethical violation that might arise, and the court did not engage in any sort of dialogue with Peterson before deciding to disqualify Petit. Moreover, the circuit court would have had the same opportunity to rule on the admissibility of the evidence and to control the tenor of the proceedings regardless of whether Petit continued as Peterson’s advocate or another attorney stepped in. Accordingly, the court’s decision to disqualify Petit was an erroneous exercise of discretion.

State v. Paul Dwayne Westmoreland, 2008 WI App 15, PFR filed 1/17/08
For Westmoreland: Joseph E. Redding

Issue: Whether counsel’s strategic decision to argue inconsistent theories during closing argument (the defendant wasn’t involved in the shooting, but if the jury found he was then they should find guilt only on a lesser offense) was deficient.

Holding:

¶20      We start with the proposition that strategic decisions by a lawyer are virtually invulnerable to second-guessing. Strickland, 466 U.S. at 690. As the trial court recognized, we must analyze the change of tack by Westmoreland’s lawyer in her summation against the evidence as it existed at that time, not as she might have hoped she could have accomplished when she gave her opening statement. At that point, sticking with the all-or-nothing approach set out in her opening statement would have been largely suicidal. Thus, we agree with the trial court’s conclusion in its decision denying Westmoreland’s motion for postconviction relief “that it was a reasonable trial strategy for counsel to argue an alternative defense based on reckless conduct.”¶21      Westmoreland points to two Wisconsin cases that hold that a lawyer is not ineffective for not arguing inconsistent theories.  See State v. Kimbrough, 2001 WI App 138, ¶¶1, 32, 246 Wis. 2d 648, 653, 665, 630 N.W.2d 752, 754, 760; State v. Eckert, 203 Wis. 2d 497, 510, 553 N.W.2d 539, 544 (Ct. App. 1996) (decision to not request a lesser-included-crime instruction). But this is a different matter from saying that a lawyer is ineffective for doing so. AsStrickland reminds us, there is a “wide range of professionally competent assistance,” id., 466 U.S. at 690, and the bar is not very high, see Yarborough v. Gentry, 540 U.S. 1, 11 (2003) (lawyer need not be a Clarence Darrow to survive an ineffectiveness contention). Indeed, it is not uncommon for lawyers to argue inconsistent defenses. See, e.g., State v. Nelis, 2007 WI 58, ¶20, 300 Wis. 2d 415, 424, 733 N.W.2d 619, 623 (“Nelis argued at trial that the evidence did not show that he and Diane S. had sexual intercourse on the night at issue. He further argued that, even if they did have sexual intercourse that night, it was consensual.”).

¶22      What Westmoreland’s trial lawyer did here was within the “wide range of professionally competent assistance,” see Strickland, 466 U.S. at 690, and, given the overwhelming strength of the State’s case, was “strategy” as a matter of law. Further, as the trial court also concluded, given the strength of the State’s case, persisting with the original all-or-nothing approach would not have led reasonable jurors to conclude that the State had not proven Westmoreland guilty beyond a reasonable doubt. Thus, as a matter of law there was also no Strickland“prejudice,” that is, the change of tack by Westmoreland’s lawyer in her closing argument did not “undermine confidence” in the trial’s outcome.   SeeStrickland, 466 U.S. at 694. Accordingly, we affirm.^[1]

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 ^[1] Westmoreland also contends that his trial lawyer was wrong when she prefaced her change of tack in her closing argument by telling the jury that “the law requires me to make another argument in this instance” because the law did not “require[]” her to make an argument inconsistent with her contention that Westmoreland was not involved in the shootings. This is a non-starter because the lawyer’s preface helped rather than hurt Westmoreland—it reduced, rather than enhanced, whatever prejudice might have flowed as a result of the lawyer’s giving the jury an alternative, albeit inconsistent, argument, especially since the trial court had already instructed the jury that it could consider the lesser-included crime of first-degree reckless homicide. As we have already seen, Westmoreland does not challenge the propriety of that instruction or the effectiveness of his trial lawyer for asking for it. Thus, we do not discuss it. See State v. Allen, 2004 WI 106, ¶26 n.8, 274 Wis. 2d 568, 587 n.8, 682 N.W.2d 433, 442 n.8 (issue not argued is waived).

In her opening statement, counsel “told the jury flat out that Westmoreland was not involved’ in any of the shootings,” ¶11; but she “turned tack in her summation to argue that he was guilty of the lesser-included crime of first-degree reckless homicide, on which the trial court without objection and in accord with Westmoreland’s request had already instructed the jury,” ¶13. As the block quote above indicates, the court of appeals perceives no deficiency in counsel’s strategic tacking. But to a large extent that apparent change was based on the decision, altogether unchallenged, to submit a lesser offense option, the strategic reasonableness of which is therefore a given; and, hewing to an all-or-nothing position would have been, in the court’s choice terminology, “suicidal.”

What, then, is the big deal; seems like a mine-run case: why publish it? Quite possibly because of the court’s pernicious observation, “strategic decisions by a lawyer are virtually invulnerable to second-guessing.” You can bet that statement will be cited as boilerplate in future IAC claims. Indeed, the only authority cited by the court for placing postconviction counsel in that straitjacket, is the seminal Strickland, more about which momentarily. Oddly, the court blithely cites Kimbrough without acknowledging that in that instance it rejectedcounsel’s proffered strategy – counsel’s “subjective” reason for pursuing a chosen course of action, the court said, weren’t decisive; instead, the question was whether it was objectively reasonable. Of course, in that instance, counsel concededly made a mistake in pursuing an all-or-nothing strategy and had actually meant to try for a lesser offense. But that result creates a potentially intolerable tension with the court’s statement now that it’s next to impossible to second-guess strategy (you can second-guess if you want to affirm rather than vacate the conviction). It has long been settled that counsel’s strategizing is tested by whether it was rationally based on the facts of the case and the law, e.g.,  State v. Felton, 110 Wis. 2d 485, 502-503, 329 N.W.2d 161 (1983). Compare, United States ex rel. Hampton v. Leibach, 347 F.3d 219, 246 (7^th Cir. 2003) (“an attorney’s decisions are not immune from examination simply because they are deemed tactical”; question is whether the tactic “was objectively reasonable”). We are now, if Westmoreland takes hold, some distance removed from those more gimlet-eyed views of counsel’s performance.

Now to the test in Strickland, which was expressed by the Court this way: “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” 466 U.S. at 690-91. After thorough investigation. Decidedly different stress, no? Application of that formulation to these facts would have brought theWestmoreland court to the same place undoubtedly, but note the difference is almost too obvious to require spelling out: before immunity from second-guessing there first must be “thorough investigation.” The court has accurately recited the test before, in State ex rel. Clayborn L. Walker v. Frank, 2007 WI App 142, ¶15 (“[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690”); and State v. Dale H. Chu, 2002 WI App  98, ¶52  (“counsel’s strategic choices, made after thorough investigation of the law and facts, are virtually unchallengeable. See Strickland, 466 U.S. at 690-91”). Maybe the court’s present, rough summary isn’t meant to change anything. Perhaps it is a mistake to read too much (or anything at all) into the court’s shift in rhetoric; but it would be wise to keep in mind that the focus must be on the quality of the investigation of both facts and law, before leaping to the conclusion that counsel’s decision-making is impervious to review.

Returning to this case: Westmoreland presented no witnesses. He had no real defense. The decision might be read as supporting the idea that no strategy would have changed the outcome, and in that sense a holding of no prejudice might have been the preferred outcome. Compare, Conner v. McBride, 375 F3d 643 (7^th Cir. 2004) (failure to seek lesser offense instruction was deficient, because “the trial court would have been legally obligated to so instruct the jury,” but was nonetheless non-prejudicial because the evidence was so overwhelming he would have been convicted as charged anyway). Remember, too, at least as a tangential aside, that the potentially thorny question of submitting a lesser offense option (who gets to choose, counsel or client?) wasn’t raised.

State v. Jason K. Van Buren, 2008 WI App 26; for Van Buren: Waring R. Fincke

Issue: Whether trial counsel’s failure to adduce expert testimony on false confessions was deficient.

Holding:

¶18      Here, we do not address the prejudice prong of Strickland because we conclude that Van Buren’s counsel was not deficient. A finding of deficient performance “requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. The representation must fall below an objective standard of reasonableness as measured against prevailing professional norms. Id. at 688. The State argues that Van Buren’s counsel could not be ineffective because there are no published Wisconsin cases stating that expert testimony on false confessions is admissible, and the authorities in other states are split. Because a criminal defense attorney “is not required to object and argue a point of law that is unsettled,” State v. McMahon, 186 Wis. 2d 68, 84, 519 N.W.2d 621 (Ct. App. 1994), the State argues, failing to adduce expert testimony when that testimony’s admissibility is not firmly established can never be ineffective assistance of counsel.

¶19      Van Buren responds that even if there is no Wisconsin holding squarely allowing false-confession expert testimony at trial, the cases disallowing it come from jurisdictions that adhere to the much more restrictive Daubert ^[6] standard for scientific evidence. He argues that the evidence should and would come in under Wisconsin’s lower standard. See City of West Bend v. Wilkens, 2005 WI App 36, ¶¶23-24, 278 Wis. 2d 643, 693 N.W.2d 324. However, we must keep in mind that this is an ineffective assistance claim. The issue is not whether the evidence could have come in, but whether Van Buren’s counsel, by not offering it, fell below an objective standard of reasonableness as measured against prevailing professional norms. Strickland, 466 U.S. at 688. Even if Van Buren is correct and false-confession expert testimony should be admitted, the published and unpublished cases contain only one instance of its introduction at a trial in Wisconsin, nearly fifty years ago. ^[7] Given this fact, we could not hold that the failure to introduce such testimony falls below “prevailing professional norms.”

The State increasingly says: The asserted deficiency involved a strategy too novel to hold counsel accountable for overlooking; to which the court says: You betcha! E.g., State v. John R. Maloney, 2005 WI 74, ¶¶23-30 (“In State v. Thayer, 2001 WI App 51, ¶14, 241 Wis. 2d 417, 626 N.W.2d 811, the court of appeals recognized that ‘counsel is not required to argue a point of law that is unclear.’ … Given the unclear and unsettled nature of SCR 20:4.2’s applicability in Wisconsin to the pre-charging criminal investigative setting, we conclude that trial counsel’s failure to challenge the admissibility of the videotape evidence on this ground did not constitute deficient performance.”); State v. Jennifer Wery, 2007 WI App 169, ¶17 (“Deficient performance is limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue. State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621 (Ct. App. 1994). Wery’s counsel was presented with a highly unusual set of facts and was without any case law providing guidance on how to handle postverdict juror dissent in a bifurcated trial.”)

Once might be an outlier, but two or more instances of such behavior establish, as courts like to say in the § 904.04 context, a pattern of conduct. Which is to say, a worrisome and undoubtedly recurrent development, if not in the abstract then at least when applied to contexts such as this one. Consider: no one claimed here that the expert testimony would have been inadmissible, just that there’s a deficit of published appellate discussion on expert testimony and false confessions. So what? Perhaps the absence of appellate litigation illustrates not the issue’s novelty but its very acceptance at the trial court level. Perhaps, in other words, this type of evidence readily comes in, obviating the need for appellate litigation. A perfectly reasonable assumption, especially in light of Van Buren’s altogether correct observation that Wisconsin isn’t even a Daubert state, that we freely admit expert testimony that might not be admissible elsewhere. And that leads to a subsidiary point, implicit if not explicit in Van Buren’s argument: you start with an assumption of admissibility and work backward from there. The question isn’t whether there was a horribly complex admissibility problem—clearly, there wasn’t—but simply whether reasonably proficient defense counsel would have perceived a need to attack the confession as false; and it is precisely that elementary question that the court now unconvincingly sidesteps.

Federal habeas practitioners may recognize the subtle absorption of an AEDPA-type limitation: unless you can point to exactly controlling precedent, you can’t even engage in a process of review. And without the benefit of statutorily-imposed limitations, or straitened review under notions of comity or collateral attack. In any event, the answer might be to put on expert attorney testimony to establish that, notwithstanding precisely binding case law, the normally prudent practitioner would have performed differently. In any event, if your claimed deficiency involves something even arguably novel you’re going to have to anticipate this issue as part of your postconviction strategy.

State v. Alvernest Floyd Kennedy, 2008 WI App 186
Pro se

Issue/Holding:

¶10      There are two avenues by which an indigent criminal defendant will be afforded counsel at no expense. The first is through the legislatively created Office of the State Public Defender. The legislature created Wis. Stat. ch. 977 of the Wisconsin Statutes establishing the Office of the State Public Defender “to deal with the appointment of counsel for indigent defendants.” Pirk, 175 Wis.  2d at 506. The second avenue emerges only after a defendant has been found ineligible by the SPD and rests in the inherent power of the court. See State v. Dean, 163 Wis.  2d 503, 512-13, 471 N.W.2d 310 (Ct. App. 1991). If a criminal defendant has been found ineligible by the SPD statutory standards for the appointment of counsel, the trial court may, in its discretion, invoke its inherent authority and appoint counsel at county expense when “the ‘necessities of the case’ and the demands of ‘public justice and sound policy’ require appointing counsel … to protect the defendant’s constitutional right to counsel.” Id. at 513 (citation omitted).

State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski

Issue/Holding:

¶7        … In United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), the Supreme Court explained that the right to counsel derived from the Sixth Amendment includes “the right of a defendant who does not require appointed counsel to choose who will represent him.” Id. at 144. … However, Gonzalez-Lopez makes clear that the right to counsel of choice is not unlimited …. Thus, under the Sixth Amendment, a defendant has only a presumptive right to employ his or her own chosen counsel. See Wheat v. United States, 486 U.S. 153, 159, 164 (1988).

¶8        Our supreme court addressed disqualification of a defendant’s retained counsel of choice in State v. Miller, 160 Wis. 2d 646, 467 N.W.2d 118 (1991). Miller makes clear that the circuit court has the discretion to disqualify a defendant’s counsel of choice for a conflict of interest even when the defendant will voluntarily waive the conflict. Id. at 650. Miller reconciles the competing policy interests of a defendant’s Sixth Amendment right to representation by counsel of choice with countervailing interests in maintaining the integrity of the judicial system. See id. at 652-53. Miller also confirmed the principle espoused in Wheat, that a presumption favoring the defendant’s choice exists. See Miller, 160 Wis. 2d at 652; Wheat, 486 U.S. at 164.

State v. Todd E. Peterson, 2008 WI App 140
For Peterson: Ralph Sczygelski

Issue/Holding: A defendant has a 6^th amendment-based right to retained postconviction counsel of choice:

¶9        The State correctly counters that Miller and Gonzalez-Lopez involved the right to counsel of choice at trial. Here, Peterson was postconviction, at a Machner proceeding. …

¶10      Martinez and Tamalini provide no guidance on the question presented. The issue here arose not on direct appeal under Wis. Stat. § 808.03, but rather when Peterson pursued postconviction relief in the circuit court. See Wis. Stat. § 808.01(1) (“appeal” means review in an appellate court).

¶11      We have located no Wisconsin case directly on point; that is, addressing the right to be represented by retained counsel of choice during postconviction proceedings in the circuit court. Neither party has offered any mandatory authority for deciding the question. Nonetheless, sufficient guidance exists in Sixth and Fourteenth Amendment case law to indicate that a person has a qualified right to counsel of choice. … It is apparent from the Whitmore case and SM 33 that Wisconsin affords a convicted person the right to postconviction counsel. It would be absurd to suggest that a person has a right to counsel at trial and a right to counsel on appeal, but no right to the assistance of counsel at a postconviction proceeding in the circuit court, which is often the precursor to and augments the record for an appeal.

¶12      When considering whether the right to counsel at a Machner hearing is derived from the Fourteenth Amendment, as in Douglas, or from the Sixth Amendment, as in Gonzalez-Lopez, Wheat, and Miller, we observe that the Machner proceeding is much more akin to a trial than an appeal. …

Does the basis of the right to postconviction counsel really matter? There is absolutely no doubt that the right attaches as a matter of equal protection as the State argues, ¶9 (and as a matter of due process as well, e.g., State ex rel. Ruven Seibert v. Macht, 2001 WI 67, ¶¶1, 12). However, regulation of the right is pretty well settled under the 6^th A, less so under the 14^th, therefore in theory it may matter how the right is pigeonholed. Might matter … a decent argument could be made that under the 14^th A you should have the same right to counsel of choice as under the 6^th. But that isn’t the route chosen by the court; instead, as the block quote indicates, the court hitches the right to the 6^th A. Just one little problem: it’s not a particularly tenable approach. The 6^th amendment affords trial-level rights (which is why, for example, there’s no right to confrontation at a preliminary hearing or, for that matter, at sentencing). The 6^th amendment simply doesn’t apply to appeals which the court, of course, acknowledges; but instead of accepting the ineluctable conclusion, the court instead attempts a transparently clumsy parsing of appellate procedure: a Rule 809.30 motion is, the court says, distinct somehow from a “direct appeal,” ¶10. Well. Section 974.02 says that “(a) motion for postconviction relief” must be made per Rule 809.30; and Rule 809.30(1)(c) defines “postconviction relief” as “an appeal or a motion for postconviction relief.” You get the drift: a Rule 809.30 postconviction motion is part of the direct appeal process, and separating it out (let alone consigning it to the category of trial, or pre-conviction process) is arbitrary.

The court, to be sure, has previously distinguished “postconviction” from “appeal” procedure (albeit not to the extent of fashioning the former as trial-level in nature), most notably in State ex rel. Rothering v. McCaughtry, 205 Wis. 2d 675, 556 N.W.2d 136 (Ct. App. 1996) (claim of ineffective assistance of postconviction counsel must be raised via § 974.06 motion in circuit court; IAC claim against appellate counsel must be raised by habeas in appellate court). The distinction may be arbitrary, State ex rel. Richard A. Ford v. Holm, 2004 WI App 22, ¶9 n. 4 (“(t)he terms are sometimes used interchangeably”), but we’ve lived with it awhile now … at worst, it makes life interesting for someone deciding where and how to launch a collateral attack. But the implications of the current opinion go further. If the 6^th amendment right to counsel applies at the postconviction stage, why not the others? Does the 6^th amendment apply only to Machner hearings, or to any postconviction evidentiary hearing? This isn’t to say that the result is wrong—far from it—only that it is the due process clause not the 6^th A that supports the flexible analysis deemed decisive by the court (¶12).

State v. Bruce Duncan MacArthur, 2008 WI 72, on Certification
For MacArthur: Alex Flynn
Amicus: Robert R. Henak

Issue/Holding:

¶50      Our approach to tolling is guided by United States v. Florez, a Second Circuit Court of Appeals opinion that articulated the requisite burden of proof and standard of review for the federal tolling provision. Florez, 447 F.3d at 149-50. In Florez, the following protocol was set forth: After the defendant makes a statute of limitations challenge, the State bears the burden of showing, at a pretrial proceeding, that Wis. Stat. § 939.74(3) has been satisfied by a preponderance of the evidence. However, at trial, the jury must determine the date or date range of the charged offense beyond a reasonable doubt. This can be accomplished by the general verdict’s language or when appropriate with a special verdict. If the date found by the jury creates a bar against prosecution because of the statute of limitations and the court’s pretrial findings regarding tolling, the court must then rule accordingly on the issue.¶51      This approach is supported for a number of reasons. Under this approach, the issue is then decided prior to trial, which prevents an untimely prosecution. Moreover, it allows the State the opportunity to appeal the court’s decision on this jurisdictional issue. As a practical matter, this is an issue which is typically known and addressed early on in litigation. Furthermore, the fact that a defendant was not a public resident for some period of time is not determinative of guilt and not an element of the crime charged. Rather, it is a fact that determines whether the law tolls a statute of limitations. Therefore, the State need not prove a defendant’s status as a public resident beyond a reasonable doubt. Finally, compliance with a statute of limitation is required for the court to have personal jurisdiction over the defendant, and jurisdiction is typically a question of law for the trial court to decide.

¶52      On appellate review, a circuit court’s tolling decision under Wis. Stat. § 939.74(3) should be subject to the following standard: Appellate courts should review the circuit court’s findings of fact relevant to the application of Wis. Stat. § 939.74(3) only for an erroneous exercise of discretion, and this court reviews de novo the circuit court’s legal conclusion that these facts establish tolling as specified by the statute. See Florez, 447 F.3d at 150.