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SCOW will address prejudice due to counsel’s poor communication before murder trial

State v. Daimon Von Jackson, Jr., 2019AP2383, petition for review of granted 3/21/22; dismissed as improvidently granted 5/8/23case activity (including briefs)

Issues (from Von Jackson’s PFR):

1.    Whether a defendant is prejudiced when trial counsel does not communicate with him before his homicide trial.

2.    Whether a defendant should be allowed to obtain new counsel when his current counsel is deficient.

Jackson claimed he was the “lookout,” not the shooter, in this homicide case. Per our post on the split court of appeals’ opinion, the majority assumed that defense counsel performed deficiently by not communicating with Jackson prior to trial. SCOW actually disciplined him for this.  According to Judge Reilly, (the dissenter) counsel allowed a plea offer to lapse, failed to object to the State’s breach of its plea offer, and failed to correct the court when it misadvised him of the sentence he faced.  Reilly said that defense counsel was “nonexistent to Jackson.”

So Jackson’s ineffective assistance of counsel claim turned on prejudice.  He said that he accepted the State’s plea offer because he didn’t have a choice. His lawyer was not ready for trial, and he faced a life sentence.  The majority of the court of appeals called this a “self-serving statement” and said Jackson failed to identify specific facts showing that but for his lawyer’s deficient performance he would have insisted on going to trial.

SCOW’s decision could 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). A majority of SCOW has yet to apply Lafler and Frye.

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