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Prison garb not unfashionable at ch. 51 trial

Winnebago County v. J.M., 2016AP619, District 2, 11/9/16 (one-judge decision; ineligible for publication), petition for review granted 5/15/17, affirmed, 2018 WI 37; case activity

J.M.’s lawyer didn’t secure civilian clothes for him to wear at his ch. 51 recommitment hearing, so he appeared before the jury in his prison greens (sans the shackles, at least; and the stun belt wasn’t visible to the jury). The court of appeals rejects the claim J.M.’s lawyer was ineffective for failing to make a modest outlay at the local Goodwill to purchase J.M. an outfit without the negative stigmata and for failing to ask for a curative instruction.

¶14     J.M. cites no cases in Wisconsin or otherwise holding what he argues here—that counsel in a mental health commitment proceeding must provide civilian clothes (including at his or her own expense if necessary), and failure to do so is error. No controlling precedent is called to our attention that creates such an obligation. Construed most charitably towards J.M., the law is unsettled. And “[w]hen the law is unsettled, the failure to raise an issue is objectively reasonable and therefore not deficient performance.” State v. Jackson, 2011 WI App 63, ¶10, 333 Wis. 2d 665, 799 N.W.2d 461. Accordingly, counsel’s failure to personally provide J.M. with civilian clothes was not “outside the wide range of professionally competent assistance.” Strickland [v. Washington], 466 U.S. [668,] 690 [(1984)].

¶15     If there is no established affirmative duty for counsel to ensure her client is not wearing prison garb in a mental health commitment proceeding, it follows that [trial counsel] Marone’s failure to pursue a curative limiting instruction was also not constitutionally deficient. J.M. again cites no authority for the constitutionally required duty it purports to impose on Marone. Moreover, Marone did draw attention to the issue [that J.M. was a prison inmate] during voir dire—obtaining the assurances of jurors that this would not color their judgment—and again in her opening statement.

Even if trial counsel was deficient, J.M. hasn’t shown prejudice because the expert evidence presented by the County was “overwhelming” and J.M.’s own testimony reinforced the experts’ conclusions: “His own testimony was far more detrimental to his case than what he was wearing.”(¶16).

For the poor blighters doing postdisposition representation in ch. 51 cases and thinking about raising an ineffective claim, note that the court of appeals (or at least the single judge comprising the panel in this case) isn’t necessarily convinced a ch. 51 respondent has a right to the effective assistance of counsel. The court acknowledges that the statutory right to counsel in TPR cases includes the right to effective counsel, e.g., In Interest of M.D.(S), 168 Wis. 2d 995, 1004-05, 485 N.W. 2d 52 (1992), and then assumes without deciding that the rule applies here, too. (¶10). Forewarned is forearmed: If you’re raising IAC in ch. 51 cases, it may be worthwhile to use the rationale from the TPR cases to elaborate a bit on why the statutory right to counsel in § 51.20(5) also carries with it the right to effective assistance.

UPDATE (11/10/16): Actually, an astute colleague points out there already is a case saying a ch. 51 respondent has the right to the effective assistance of counsel, and it’s been around awhile, too: State ex rel. Memmel v. Mundy, 75 wis. 2d 276, 282-84, 249 573 (1977). Cite that to the next judge skeptical of the proposition.

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