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Appellate lawyers don’t need transcripts to identify issues for appeal, says the court of appeals

State v. Robert James Pope, Jr., 2017AP1720-CR, 11/13/18, District 1 (not recommended for publication), petition for review granted 4/9/19, affirmed, 2019 WI 106, ; case activity (including briefs)

Here’s good one for SCOW. A jury convicted Pope of 2 counts of 1st degree homicide in 1996. His lawyer forgot to file a notice of intent. Twenty years later, the State stipulated to reinstatement of Pope’s direct appeal. He tried to order transcripts but couldn’t because the court reporters had destroyed their notes. The circuit court ordered a new trial, but the court of appeals reversed because his new lawyer could not predict what “colorable claims” lurked in transcripts that weren’t prepared and could never be reconstructed.

¶31 Although Pope recognizes that pursuant to Perry, he has the initial burden to show a “colorable need,” he asserts that the unavailability of the transcripts of the final pretrial conference and the entire trial proceedings completely deprives him of the ability to seek any review of his convictions. Unlike Perry, Pope has not identified any colorable claim of reviewable error in his postconviction motion. We review “only the allegations contained in the four corners of [Pope’s] postconviction motion, and not any additional allegations that are contained in [Pope’s] brief.” See State v. Allen, 2004 WI 106, ¶27, 274 Wis. 2d 568, 682 N.W.2d 433.

You know the saying: “The end justifies the means.” Here the court of appeals preserved a pair of 20-year old homicide convictions at the expense of ethics rules and SCOW precedent. Pope’s current appellate lawyer wasn’t at his trial. She can’t assert a claim that is unwarranted under existing law or a factual position unless there is a basis for it. See SCR 20:3.1. So without 1 single transcript from Pope’s 4-day jury trial how could she possibly assert a “colorable claim” on his behalf?  She couldn’t. See Interest of J.D., 106 Wis. 2d 126, 132, 315 N.W.2d 365 (1982)(“There is no way appellate counsel can determine if there is arguable merit for the appeal without either having been the trial attorney or reading the transcript.”)(Emphasis supplied).

The problem is that the court of appeals misinterpreted State v. Perry, 136 Wis. 2d 92, 401 N.W.2d 748 (1987) where a trial judge ordered a new trial because parts of the trial transcript were missing. Perry filed his postconviction motion less than 1 year after his conviction. He was able to assert that he needed the missing piece of transcript to support a claim for prosecutorial misconduct. Without it he was denied his right to a meaningful appeal. Pope was in no position to assert colorable claims He had no trial transcripts and no ability to get them. That should have made his new trial claim stronger, not weaker.

The court of appeals also pinned blame for the missing transcripts on Pope. It notes that long ago he moved to have his direct appeal reinstated pro se, lost, and then filed an appeal and a statement on transcript saying that all transcripts necessary for appeal were on file. Thus, he can’t now complain that it is impossible to have the trial transcripts prepared  today. Opinion ¶34. If there were a JudiciFact (like PolitiFact) what would the truth-o-meter show? The court of appeals neglects to say that the circuit court denied Pope’s motion to reinstate his appeal without a hearing. So his statement on transcript was accurate–there was no reason for him to order his trial transcripts in order to appeal the denial of his motion to reinstate his appeal. This had nothing to do with the merits of his direct appeal.


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