This opinion will interest lawyers who handle Chapter 51 cases and appellate lawyers of all stripes. It establishes that persons undergoing Chapter 51 mental commitments are entitled to the effective assistance of counsel and formally adopts the Strickland test for ineffective assistance. It further holds that, due to the overwhelming evidence of dangerousness in this case, J.M. was not prejudiced when his counsel failed to object to him appearing before the jury wearing prison clothes accompanied by uniformed guards–even as he testified. Of particular interest to appellate lawyers, SCOW granted a motion to strike significant parts of Winnebago County’s oral argument because its lawyer asserted facts outside the appellate record.
Section 51.20(3) provides that the subject of every civil commitment proceeding is entitled to be represented by adversary counsel. When the legislature provides the right to counsel, it means the effective assistance of counsel. In re M.D.(S)., 168 Wis. 2d 995, 1004, 485 N.W.2d 52 (1992). Opinion ¶35.
Until this case, no published Wisconsin decision had addressed a claim for ineffective assistance of counsel in a Chapter 51 case, so it was not certain that the Strickland test, which was originally designed for criminal cases, applied in the mental commitment context. J.M. and the National Disability Rights Network (the amicus curiae) urged SCOW to modify the Strickland test for Chapter 51 cases. In criminal trials, experts can’t testify that the defendant is guilty or not guilty because that is ultimate issue for the jury. But in Chapter 51 cases the county is required to offer expert testimony on the ultimate issues–that the person is mentally ill, dangerous, and a proper subject for treatment. Once this evidence gets in the trial record, it is extremely hard–maybe impossible–for a committed person to prove a reasonable probability of a different outcome but for his lawyer’s deficient performance. Unfortunately, SCOW was not persuaded by this argument. Opinion ¶¶36-44.
And so the result in this case was predictable. J.M. is a prisoner. His trial lawyer did not object to him wearing prison clothes at trial, to the presence of uniformed DOC guards in the courtroom, or to the uniformed guard standing behind him as he testified. The majority opinion does not address deficient performance. Instead, it holds that J.M. failed to prove prejudice because the County’s doctors had testified that he was dangerous and he had not presented an expert to refute that testimony. Opinion ¶¶56-61.
Justice A.W. Bradley filed a concurring opinion calling attention to counsel’s obligation in Chapter 51 cases. Estelle v. Williams, 425 U.S. 501, 505 (1976) and Holbrook v. Flynn, 475 U.S. 560, 569 (1986) hold that prison clothes exert a continuing influence on the jury during a criminal trial. It suggests the need to separate the defendant from the community at large and signals to the jury that the person is dangerous. Thus, Justice Bradley stressed:
¶80 . . . When a person subject to a ch. 51 proceeding appears before the jury surrounded by uniformed guards and wearing prison garb, the dangerousness element could be established without a word from the county’s attorney. One look at a person in this condition may create a clear subtext: this man is dangerous.
¶81 Accordingly, although I join the majority opinion, I write separately to call attention to counsel’s obligations in ch. 51 proceedings. I urge counsel to be mindful of the potentially harmful effects of prison garb and uniformed guards when “dangerousness” is an element that must be proven.
Note to appellate lawyers: During oral argument before SCOW, Winnebago County’s lawyer asserted significant facts that were not in the appellate record–facts like what J.M. said off the record in the trial court, where he stood, where the guards stood, what they were wearing, what prisoners usually wear during Chapter 51 trial and so forth. After oral argument, J.M. moved to strike the offending factual assertions. Winnebago County conceded error. SCOW granted the motion and said that it would not consider the new information. See f.n. 3. Of course, that victory did not make a lick of difference in this appeal due to the other evidence of dangerousness in this trial record. However, in the appropriate circumstances, this type of motion might prove useful.