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“Bullshit” newly-discovered evidence and self-representation on 974.06 motions

State v. Joseph Jordan, 2011AP1249, District 1, 6/25/13; case activity; (not recommended for publication).

What a challenging case.  A jury convicted Jordan of first-degree reckless homicide and other crimes.  He lost his direct appeal and then filed a pro se §974.06 motion requesting various forms of relief, including a new trial based on: (a) newly-discovered evidence, and (b) ineffective assistance of counsel. He also filed several requests for counsel, and after obtaining lawyers, moved to proceed pro se.  Lots of flip-flopping, but the circuit court never did let him go pro se, until after it held a Machner hearing and denied the  §974.06 motion.

Newly-discovered Evidence

Long story short, the court of appeals rejected the newly-discovered evidence argument because the new affidavits appeared contrived.  Years after the shooting, new witnesses could recall the make of the gun, the make and model of the cars involved and other exacting details.  One refused to testify in support of his affidavit; another called his own affidavit “bullshit,” and so forth.  Slip. op. ¶¶17-30.  Bottom line: there was no reasonable probability that a jury hearing the trial evidence and the new evidence would have a reasonable doubt about Jordan’s guilt.  Id. ¶ 30 (citing State v. Edmund, 2008 WI App 33, ¶13, 308 Wis. 2d 374, 746 N.W.2d 590).

Ineffective Assistance of Counsel

Next, Jordan’s ineffective assistance of trial counsel claim foundered because he failed to respond to the State’s argument that State v. Escalona-Naranjo, 185 Wis. 2d 168, 517 N.W.2d 157 (1994) barred his claim.  His ineffective assistance of postconviction counsel claim flopped because he had no right to any counsel (let alone effective counsel) on a §974.06 motion.  See Coleman v. Thompson, 501 U.S. 722, 752 (1991).

Right to Self-Representation

This is where things get dicey.  Jordan claims the trial court denied him a meaningful opportunity to be heard by refusing to allow him to go pro se.  A §974.06 proceeding is civil, not criminal, and Wis. Const. art. I,  §21(2) guarantees folks the right to represent themselves in civil cases.  The State invoked State v. Imani, 2010 WI 66, 326 Wis. 2d 179, 786 N.W.2d 40, which sets forth the test for deciding whether a defendant is competent to represent himself in a criminal case.  Is the test the same for civil cases?  Should it be the same?  There’s no telling from this decision.  The court of appeals intoned the familiar refrain “unrefuted arguments are deemed admitted.” Slip op. ¶38.  Given that Jordan’s competence to represent himself was directly at issue, this seems like the easy way out of a difficult case.  The decision says Jordan’s briefs are rambling and incoherent and that if he had handled the evidentiary hearing pro se, the circuit court would have confronted chaos.  Okay.  But couldn’t the court of appeals decide whether the Imani standard even applies before applying it to conclude that Jordan was not competent to proceed pro se–especially since he had no right to counsel in the first place?



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