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Counsel – Ineffective Assistance – Deficient Performance: Law Must Be Clear – Juror Dissent After Guilty Verdict Accepted and Phase II (NGI) Deliberations Begun

State v. Jennifer Wery, 2007 WI App 169
For Wery: Elizabeth Ewald-Herrick


¶17   Wery’s counsel’s failure to object did not constitute deficient performance. Deficient performance is limited to situations where the law or duty is clear such that reasonable counsel should know enough to raise the issue. State v. McMahon, 186 Wis. 2d 68, 85, 519 N.W.2d 621 (Ct. App. 1994). Wery’s counsel was presented with a highly unusual set of facts and was without any case law providing guidance on how to handle postverdict juror dissent in a bifurcated trial. Indeed, the court and the parties acknowledged the absence of controlling law in their discussion of the issue. While it may have been ideal for her counsel to argue that the court should question the juror, order the jury to return to deliberations or declare a mistrial, her counsel was not required to object and argue an unsettled point of law. See id. at 84.


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