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Counsel – Ineffective Assistance – Deficient Performance: Failure to Research Applicable Law and Object to Inadmissible Evidence (PSR)

State v. Jimmie R.R., 2004 WI App 168, motion for reconsideration denied 9/15/04

For Jimmie R.R.: Martha K. Askins, SPD, Madison Appellate

Issue/Holding: Counsel’s failure to research admissibility of testimony which controlling caselaw plainly regards as confidential was deficient:

¶23. While Swierenga’s testimony was admissible, Geske’s was not. Crowell, which Greve reaffirmed, plainly instructs that information obtained during a court-ordered presentence investigation must remain confidential unless the court has specifically authorized its use under the limited confidentiality exception provided in Wis. Stat. § 972.15(4). Indeed, Jimmie’s counsel admitted at theMachner hearing that he had not researched the admissibility of Geske’s testimony prior to the perjury trial and had he read Crowell, he would have objected to Geske’s testimony. Because Jimmie’s counsel did not object to Geske’s testimony, the court did not have the opportunity to review the propriety of authorizing the release of the information Geske obtained during the investigation.

¶24. … Jimmie’s counsel’s failure to object to Geske’s testimony constitutes deficient performance.

Like effect, Smith v. Dretke, 5th Cir No. 04-10770, 7/12/05:

… Failing to introduce evidence because of a misapprehension of the law is a classic example of deficiency of counsel. See, e.g., Williams v. Taylor, 529 U.S. 362, 395 (2000) (noting, when finding deficiency of counsel, that petitioner’s lawyers “failed to conduct an investigation that would have uncovered extensive records graphically describing Williams’ nightmarish childhood, not because of any strategic calculation but because they incorrectly thought that state law barred access to such records”). … This misunderstanding could have been corrected with minimal legal research.

And, Thomas v. Varner, 3rd Cir No. 04-2856, 1/18/06 (“Courts have routinely declared assistance ineffective when ‘the record reveals that counsel failed to make a crucial objection or to present a strong defense solely because counsel was unfamiliar with clearly settled legal principles.’ 3 Wayne LaFave et al., Criminal Procedure § 11.10(c), at 721 (2d ed. 1999) ….”).


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