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SCOW DIGs case; justices dispute whether they should say why

State v. Jackson, 2023 WI 37, 5/12/23, dismissing as improvidently granted review of an unpublished court of appeals opinion, 2019AP2383; case activity (including briefs)

Our post on the grant of review in this case said SCOW might use it to “expound on State v. Cooper, 2019 WI 73, 387 Wis. 2d 439, 929 N.W.2d 192 (IAC claims where counsel has been disciplined), Hill v. Lockhart, 474 U.S. 52 (1985)(prejudice prong in the plea context); Lafler v. Cooper, 566 U.S. 156 (2012) and Missouri v. Frye, 566 U.S. 134 (2012)(failure to communicate plea offer). There will be no expounding on those cases. Instead, SCOW dismisses the case as improvidently granted. That doesn’t mean there’s not any expounding to be had, though: Justices R.G. Bradley (in concurrence) and A.W. Bradley (in dissent) write to state their views on whether SCOW should explain itself when it DIGs.

You can read our post on the court of appeals’ decision for a review of the facts and the issues, but basically, a two-judge majority concluded that Jackson’s lawyer’s assumed deficient performance didn’t prejudice him in his plea to a homicide. Judge Reilly, in dissent, argued that his lawyer’s actions–a lack of communication with Jackson and other failings, for which the attorney was disciplined by SCOW–plainly harmed him. SCOW took up the case, but now dismisses it in a two-sentence order.

The order is accompanied by a concurrence in which Rebecca Bradley argues that the lack of explanation is a feature, not a bug, for a high court’s dismissal of a case it has granted. There’s also a dissent by Ann Walsh Bradley argues the court owes it to the litigants and the bar to explain why it’s changed its mind. (The dissent is joined by Justice Dallet; it also argues that SCOW should decide the case, which the dissenting COA judge described as a “failure” “of the entire justice system.”)

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