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COA splits on prejudice caused by counsel’s ineffective presentation of Denny defense

State v. General Grant Wilson, 2018AP183-CR, 1/12/21, District 1 (not recommended for publication); case activity (including briefs)

This marks the 3rd time the court of appeals has addressed Wilson’s case. In this appeal, the sole question is whether trial counsel provided ineffective assistance of counsel. The circuit court found deficient performance but not prejudice. Two judges, White and Blanchard affirm. Brash filed an 18-page dissent arguing that the cumulative effect of several deficiencies warrants a new trial.

SCOW reviewed this case in 2015. It involves a claim that Wilson was convicted of a homicide committed by a 3rd party perpetrator and that he should have been permitted to present that evidence to the jury under State v. Denny, 120 Wis. 2d 614, 357 N.W.2d 12. In 2015, SCOW held that Wilson was not denied his constitutional right to present a complete defense under Denny. See our post here.

Eventually, the case landed back in the circuit court for a Machner hearing on Wilson’s claim that his trial lawyer was ineffective in 3 ways: (1) he failed to thoroughly investigate and formally present a 3rd-party perpetrator defense, (2) he failed to impeach testimony by the alleged 3rd party perpetrator, and (3) he failed to object to the admission of hearsay. Two judges assumed without deciding that trial counsel performed deficiently. They held that Wilson was not prejudiced.

To establish prejudice, Wilson had to show a reasonable probability that but for trial counsel’s unprofessional errors the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 694 (1984). When a defendant asserts that trial counsel made multiple errors, the reviewing court considers their cumulative effect on the proceeding. Analysis of prejudice, especially cumulative prejudice, almost always depends on facts specific to the case being reviewed. That is true here. The majority’s reasoning may be found at Opinion, ¶¶20-30.

The dissent does not quibble with the Strickland prejudice standard. It argues that the Machner hearing yielded important, additional evidence, which when properly viewed under Denny and clarified by Wilson, undermines confidence in the outcome of the proceeding and warrants a new trial.

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