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SCOW to review deference owed to trial counsel’s strategic decisions

State v. Jovan T. Mull, 2020AP1362, petition for review of a per curiam opinion granted, 5/18/22, case activity (including briefs)

Question Presented (from petition):

Under binding case law, in reviewing an ineffective assistance claim, the court must defer to a trial attorney’s strategic decisions. Here, the circuit court found Mull’s attorney used reasonable strategies in choosing a defense and handling cross-examination of a witness, and it deferred to the attorney’s strategy. But the court of appeals substituted its own decisions for those of Mull’s trial attorney. Did the court of appeals impermissibly fail to defer to Mull’s attorney’s strategic decisions?

A jury convicted Mull of first-degree reckless homicide. Postconviction, his main claim was that trial was ineffective for failing to present a third-party perpetrator defense, pursuant to State v. Denny, 120 Wis. 2d 614, 624, 357 N.W.2d 12 (Ct. App. 1984). He argued that one of three people actually killed the victim. He also argued that trial counsel could have called 4 witnesses who would have supported that claim. Or trial counsel could have elicited testimony to support the claim from some of the witnesses who testified. Without going into details, the State’s case against Mull had many weaknesses. Opinion, ¶40.

At the Machner hearing, trial counsel testified that he had difficulty locating witnesses, but he couldn’t specify which witnesses. Because it would have been difficult to put together a Denny defense, he made a strategic decision to present a “reasonable doubt” defense instead. Accordingly, the circuit court then denied Mull’s IAC claim. Opinion, ¶¶13-16.

The court of appeals reversed. It found that trial counsel’s performance was objectively unreasonable because even if it was difficult to find certain witnesses, he could have pursued alternative means of presenting the Denny evidence.Opinion, ¶36 (citing State v. Kimbrough, 2001 WI App 138, ¶¶32-34, 246 Wis. 2d 648, 630 N.W.2d 752)). The State argues that the court of appeals misread Kimbrough. Once trial counsel says he chose a defense for strategic reasons, courts must defer to him.

The State seems to be advocating a “magic words” rule–something SCOW usually condemns. If the State prevails on this argument, query whether trial counsel’s invocation of a “strategic reason” precludes postconviction and appellate review.

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{ 1 comment… add one }
  • Robert R. Henak May 20, 2022, 1:43 pm

    The state’s petition is based on a false premise. There is no legal requirement to defer to trial counsel’s strategic decisions. The requirement under Strickland is to defer to counsel’s REASONABLE strategic decisions. A decision may be strategic but based on an unreasonable failure to investigate or an unreasonable failure to understand controlling law. Likewise, a “strategic” decision may be just plain stupid given the circumstances.

    If the SCOW adopts the state’s absurd position, that will be great news for federal habeas attorneys since, by applying a legal standard that conflicts with controlling U.S. Supreme Court authority, it will provide an easy way to avoid the restrictions of AEDPA .

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