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Defense win: SCOW orders Machner hearing

State v. Larry L. Jackson, 2023 WI 3, 01/20/23, affirming in part, reversing in part, and remanding a per curiam court of appeals decision; case activity (including briefs)

A unanimous supreme court holds that Jackson is entitled to an evidentiary hearing under State v. Machner on one of his three claims of ineffective assistance of counsel.

Like many cases involving claims of ineffective assistance of trial counsel, this is a fact-intensive case, and it involves a conviction for first-degree intentional homicide. This post will summarize the three IAC claims Jackson made and why he is entitled to a Machner hearing on one of them but not the other two. Readers drafting a postconviction motion raising IAC claims will want to read the decision more closely as an aid in drafting a motion that satisfies the pleading standard, which is this: The motion must on its face alleges sufficient material and non-conclusory facts that, if true, would entitle the defendant to relief. If it does, the court must then determine whether the record as a whole conclusively demonstrates that the defendant is not entitled to relief. If those two criteria are met, then the circuit court must hold a Machner hearing. State v. Ruffin, 2022 WI 34, ¶¶27-28, 37-38, 401 Wis. 2d 619, 974 N.W.2d 432.

Here are Jackson’s three IAC claims:

First, he alleges his trial lawyer failed to investigate or call alibi witnesses. According to Jackson’s motion and the attached affidavits, he gave their names to his attorney but neither were contacted. Had they been contacted, both witnesses stated they would have testified at trial that Jackson was at his mother’s house at the time of the homicide. The affidavits set forth considerable detail of what their testimony would have been. (¶¶13-14). Thus:

¶15    We have little trouble concluding that, if these facts are true, Jackson’s motion sufficiently alleges a claim of ineffective assistance of counsel. Indeed, the State does not dispute that counsel’s failure to contact these witnesses or potentially call them at trial would constitute deficient performance. See also State v. Jenkins, 2014 WI 59, ¶41, 355 Wis. 2d 180, 848 N.W.2d 786 (“[I]n a swearing match between two sides, counsel’s failure to call two useful, corroborating witnesses, despite [potential bias as a result of] the family relationship, constitutes deficient performance.” [quoted source omitted]. And Jackson’s motion sufficiently alleges prejudice as well because it explains that counsel failed to investigate [the witnesses] at all, let alone call them at trial. See [State v.] Allen, [2004 WI 106,] 274 Wis. 2d 568, ¶¶23-24[, 682 N.W.2d 433] (explaining that a post-conviction motion contains sufficient facts when it alleges “the name of the witness (who), the reason the witness is important (why, how), and acts that can be proven (what, where, when).”); see also Washington v. Smith, 219 F.3d 620, 630-35 (7th Cir. 2000) (concluding that counsel’s failure to contact or produce possible alibi witnesses at trial was constitutionally deficient performance and prejudicial).

Instead of arguing Jackson’s allegations, the state argues that the record conclusively
establishes that Jackson was not prejudiced because of the weaknesses in the alibi witnesses’ testimony and their inconsistencies with the testimony of Jackson’s mother, the only witness Jackson called, and because the overwhelming evidence against Jackson means there’s no reasonable probability that the result of the proceedings would have been different. (¶¶16-17).

The court rejects these arguments, because a court’s review at this point must assume that the factual claims made in support of the motion are true, and it cannot know, nor should try to predict, how a jury might have weighed the witnesses’ testimony. (¶18). Further, the state’s case was not so overwhelming, and the state’s best evidence of Jackson’s involvement came from witnesses with serious credibility issues themselves. (¶¶19-22). Thus, Jackson’s motion alleges sufficient material and non-conclusory facts that, if true, would entitle him to relief on this claim, and the record fails to conclusively show that Jackson is not entitled to relief. Jackson is entitled to a Machner hearing on this claim. (¶23).

Jackson’s remaining claims don’t fare as well. Regarding his claim that trail counsel was ineffective for not interviewing Jackson’s mother or preparing her to speak to detectives or testify, Jackson’s motion is conclusory, as it doesn’t explain how counsel should have prepared her or what effect this may have had on her statement or testimony. (¶24).

Finally, Jackson claims trial counsel incorrectly advising him that the law required him to testify first, before he called any witnesses. The record, though, shows it was the circuit court who wanted this order, and counsel advised Jackson of that. (¶25). This claim fails because Jackson hasn’t sufficiently alleged trial counsel was deficient:

¶26     …. All that Jackson alleges his counsel told him was that the circuit court would require him to testify first. But Jackson does not explain how that statement was incorrect. Instead, Jackson asserts that the circuit court was required to allow him to testify in his preferred order under Brooks v. Tennessee, 406 U.S. 605 (1972), because “there were no circumstances in his case where having the other defense witnesses testify first would have impeded the orderly progress of the trial.”

¶27      Counsel’s statement was not unreasonable because the circuit court would not necessarily have violated Brooks by requiring Jackson to testify first. After all, Brooks held only that a statute requiring a defendant to testify first or not at all violated the defendant’s constitutional rights. Id. at 612. And as numerous courts have concluded, Brooks does not restrict the wide latitude trial courts have in managing the presentation of evidence at trial on a case-by-case basis, including by “determin[ing] generally the order in which parties will adduce proof.” Geders v. United States, 425 U.S. 80, 86 (1976);… Thus, even if everything alleged in Jackson’s motion is true, it might still have been permissible for the circuit court to require him to testify first. And in that case, counsel’s performance would not have been deficient since her statement would have been accurate, or at least not unreasonable. ….


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