State v. Michael A. DeLain, 2004 WI App 79, PFR granted, on other grds. For DeLain: Robert R. Henak Issue/Holding: Trial counsel’s failure to “investigate and present evidence of exculpatory prior consistent statements DeLain made to co-workers” was not the product of deficient performance, given that DeLain never told counsel about these remarks, and that counsel interviewed… Read more
8. Counsel, 6th Am.
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04 For Arredondo: James A. Rebholz Issue/Holding: Failure to locate and present the testimony of a potential alibi witness wasn’t deficient given counsel’s testimony that his investigator couldn’t locate the witness, along with Arredondo’s failure to convince the court that the investigator had been informed where the… Read more
State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04 For Arredondo: James A. Rebholz Issue: Whether trial counsel was ineffective for failing to investigate a theory of 3rd-party guilt, in the absence of any evidence linking that party to the crime. Holding: ¶31. A trial attorney may select a particular defense from the available alternative… Read more
State v. James R. Thiel, 2003 WI 111, reversing unpublished opinion of court of appeals For Thiel: Bruce J. Rosen Issue/Holding: ¶37. Turning to counsel’s performance, we first recognize that counsel’s failure to review certain portions of the discovery provided by the prosecution–especially Dr. Metzler’s medical reports–was deficient performance as a matter of law. In a felony case… Read more
State v. James R. Thiel, 2003 WI 111, reversing unpublished opinion of court of appeals For Thiel: Bruce J. Rosen Issue/Holding: ¶51. Third, counsel’s interpretation of Wis. Stat. § 972.11(3) reflects a failure either to research or correctly interpret relevant portions of the law. The circuit court found that counsel interpreted this statute as allowing the defense to prevent the State… Read more
State v. John S. Cooper, 2003 WI App 227, PFR filed 11/14/03 For Cooper: John A. Birdsall Issue/Holding: ¶23. As a final matter, this court notes with dismay the multiple citations to unpublished opinions contained in Cooper’s appellate brief. The Rules of Appellate Procedure proscribe as follows: Unpublished opinions not cited. An unpublished opinion is… Read more
Wiggins v. Smith, 539 U.S. 510 (2003) (ABA Standards, as “guides” to counsel’s duty to investigate, represent “clearly established precedent”); Keith B. Canaan v. McBride, 395 F. 3d 376 (7th Cir 2005): We follow the Court’s lead in Strickland and Wiggins by looking first to the ABA Standards for Criminal Justice and the ABA Guidelines for… Read more
Counsel – Ineffective Assistance – Deficient Performance – Conceding Guilt on One of Multiple Counts
State v. Gary L. Gordon, 2003 WI 69, reversing 2002 WI App 53, 250 Wis. 2d 702, 641 N.W.2d 183 For Gordon: Steven P. Weiss, SPD, Madison Appellate Issue/Holding: ¶24. The court of appeals held that the defense attorney’s closing argument concession on the disorderly conduct while armed count was the functional equivalent of a guilty plea… Read more
