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COA asks SCOW to decide when defendant’s right to counsel attaches

State v. Percy Antione Robinson, 2020AP1728-Cr, certification filed 4/19/22, District 1; case activity (including briefs)

Whether Milwaukee County’s CR-215 procedure for determining probable cause triggers an accused’s 6th Amendment right to counsel for any subsequent “critical stage” of the legal proceeding?

This issue should sound very familiar to On Point readers. It first arose in State v. Garcia, 2016AP1276-CR (1028) (unpublished), where the court of appeals held that the CR-215 procedure did not trigger the attachment of the right to counsel. See our post here.  SCOW granted review but split 3-3, leaving Wisconsin without a published opinion on the issue. See our follow-up post here.

Garcia then petitioned for a federal writ of habeas corpus on this issue and won! See our post here.  Not only that, as this certification admits, in case after case, the Eastern District of Wisconsin has rejected the court of appeals’ analysis in Garcia. See United States v. West, No. 08-CR-157, 2009 WL 5217976 (E.D. Wis. Mar. 3, 2009); United States v. Mitchell, No. 15-CR-47, 2015 WL 5513075, at *3 (E.D. Wis. Sept. 17, 2015), aff’d, 657 F. App’x 605 (7th Cir. 2016); Jackson v. Devalkenaere, No. 18-CV-446-JPS, 2019 WL 4415719, at *2 (E.D. Wis. Sept. 16, 2019); Ross v. Jacks, No. 19-CV-496-JPS, 2019 WL 4602946, at *2-3 (E.D. Wis. Sept. 23, 2019).

Now the court of appeals asks SCOW to take the case and issue a definitive decision on the issue. When SCOW split 3-3 in Garcia, Justices Abrahamson and Kelly were on the court. Abrahamson withdrew from participation in the case.  Who knows which conservative sided with the liberals. Now SCOW’s lineup includes Hagedorn and Karofsky.

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