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No prejudice caused by counsel’s failure to object to admission father’s criminal record at TPR trial

State v. L.V., 2018AP1065, 1/29/19, District 1 (one-judge opinion; ineligible for publication); case activity

The defense moved to exclude evidence of L.V.’s criminal record prior to his daughter’s birth. The State told the court it had no intention of introducing his criminal record at trial. But when L.V. took the stand, guess who started asking about his criminal record?

That’s right. The State did. It asked L.V. if he had a criminal record (yes), how many convictions he had (7-8), and how many times he had gone to prison (5). After the 3rd question, defense counsel objected, and the court held a side bar, where defense counsel withdrew his objection provided that the State didn’t ask anything more on the subject. (Opinion ¶5).

Of course, the jury terminated L.V.’s parental rights, and of course the court of appeals held that, assuming defense counsel performed deficiently, his failure to object did not prejudice the defendant. It trotted out all sort of damning evidence showing that L.V. had failed to meet the conditions for his child’s return and his failure to assume parental responsibility. (Opinion ¶¶14-19).

The result is predictable for an ineffective assistance of counsel claim. But query whether L.V. could have challenged what happened here through a claim other than ineffective assistance of counsel: maybe prosecutorial misconduct or structural error?


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