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Missing video dooms claim for ineffective assistance of trial counsel

State v. Samantha H. Savage-Filo, 2018AP996-CR, 1/9/19, District 2 (1-judge opinion, ineligible for publication); case activity (including briefs).

Savage-Filo claimed that her trial counsel was ineffective for, among other things, failing to investigate electronic discovery and incorrectly assessing the strength of a video allegedly showing her take a purse (filled with jewelry) left in a cart at a store parking lot. S-F argues that the appalling quality of the video shows that the State had little evidence against her. Her trial counsel failed to appreciate this and pushed her to plead.

Unfortunately, the video is not in the appellate record and possibly not in the trial record. At the postconviction hearing, trial counsel testified from memory about the quality and contents of the video a year after the fact. He was the only witness. The trial court found him credible, and the court of appeals affirmed because nothing in the record contradicted him. Opinion, ¶¶12-13. (citing State v. Parker, 2002 WI App 159, ¶12, 256 Wis. 2d 154, 647 N.W.2d 430).

The court of appeals suggests that the video exists and that postconviction counsel may have received it only after the motion hearing. It would be interesting to know more about this. The court of appeals appreciate that the video is central to S-F’s claim. Query whether, it could have paused and ordered appellate counsel to report on the status of the video in the circuit court record.  By noting the problem and proceeding anyway the court of appeals has set up a possible ineffective assistance of postconviction or appellate counsel claim, which will chew up resources to litigate.

S-F  also claimed that her plea was not knowing, intelligent and voluntary because trial counsel didn’t tell her the elements of her crime or her possible defenses. The court of appeals rejected this claim as “undeveloped and unsupported.” Opinion, ¶17.


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