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Counsel not ineffective in handling of lesser-includeds, theory of defense in homicide trial

State v. Keith J. Brooks, 2017AP1723-CR, 9/25/18, District 1 (not recommended for publication); case activity (including briefs)

Brooks was tried for first-degree intentional homicide. The jury acquitted him of that but convicted of the lesser-included first-degree reckless. He argues his trial lawyers were ineffective because they pursued a strategy that would have let the jury find him guilty of that count even if (as the defense contended) the victim had committed suicide.

The court of appeals rejects the argument, finding that it doesn’t much jibe with what actually happened at the trial. The victim here died of a single gunshot to the head. Brooks said she had pulled the trigger, and the state said that he did. In pursuit of its theory that the victim had committed suicide, the defense tried to supply reasons why she would have done so–basically, that Brooks was abusing and tormenting her in the weeks before she died. (¶¶8, 12).

Brooks’s argument, postconviction and appeal, is inspired by the well-publicized case of Michelle Carter, who was convicted in Massachusetts of involuntary homicide after her text messages to her boyfriend allegedly drove him to commit suicide. Massachusetts’s high court held the elements of that state’s offense met, Com. v. Carter, 52 N.E.3d 1054 (2016), (though a second appeal is now pending in the same court).

Brooks claims that his lawyers, in various ways, allowed him to be convicted of reckless homicide on the same theory–that his behavior caused the victim to pull the trigger. The problem with this argument, per the court of appeals, is that this is just not what Brooks’s trial was about:

  • The defense theory of the case was that the victim shot herself. (¶¶24-25).
  • Both parties’ arguments made clear that the issue was whether Brooks, instead, had shot her. That is, both the state and the defense consistently communicated to the jury that if he hadn’t, he was not guilty. (¶¶28-32).
  • The jury was not instructed that it could find Brooks guilty if he drove the victim to suicide. (¶34).

The court of appeals also rejects as cursory Brooks’s argument that his attorneys’ performance “entirely fail[ed] to subject the prosecution’s case to meaningful adversarial testing” such that prejudice was automatic under United States v. Cronic, 466 U.S. 648, 659 (1984). Because the court doesn’t think it necessary, given the facts, it doesn’t address whether “under Wisconsin law verbally and mentally abusing someone could provide a basis for a reckless homicide charge.” (¶26 n.7).

Having found no merit in Brooks’s IAC claim, the court court rejects his interest-of-justice claim for similar reasons. (¶¶42-44).

The court also rejects Brooks’s argument, based on work by Michael Cicchini, that the standard jury instruction erroneously lowers the state’s burden of proof by telling them not to search for reasonable doubt, but rather for the truth. The court concludes it is bound by our supreme court’s blessing of the instruction in State v. Avila, 192 Wis. 2d 870, 888-89, 532 N.W.2d 423 (1995).



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