On Point

court of appeals decision (1-judge; not for publication); for Lonergan: Owen R. Williams; BiC; Resp.

Reasonable Suspicion – OWI Stop

Stop supported by reasonable suspicion, where vehicle “‘deviated constantly’ from a direct line of travel” and “made several abrupt course corrections,” albeit within its own lane. United States v. Lyons, 7 F.3d 973 (10th Cir. 1993) and United States v. Colin, 314 F.3d 439 (9th Cir. 2002), distinguished: “While we are mindful that no driver can maintain a perfectly straight course, neither Lyons nor Colin involved the type of erratic and abrupt course corrections Swan described here.”

State v. Michael James Carter, 2010 WI 40

Wisconsin supreme court decision, reversing unpublished summary order; for Carter: John T. Wasielewski; BiC (State); Resp.; Reply

Counsel made a reasonable tactical decision not to search for admissibility of sexual conduct evidence as an exception to the rape shield law. Therefore, Carter can’t show deficient performance. Separately, this evidence wouldn’t have fallen within an exception anyway, so Carter can’t show prejudice. One by one, in the order discussed by the court (which is, as will be seen backward):

Deficient performance.

Carter was convicted of sexually assaulting a 5-year-old child. His postconviction claim is that counsel should have gained admissibility of evidence that the child was assaulted by her cousin. The latter evidence was nominally inadmissible under the rape shield law, subject to analysis under State v. Pulizzano, 155 Wis. 2d 633, 656-657, 456 N.W.2d 325 (1990). Counsel made the decision not to seek admissibility without determining “whether the evidence would have been admissible,” ¶15, but this did not make his performance deficient:

¶23  Strategic decisions made after less than complete investigation of law and facts may still be adjudged reasonable. Strickland, 466 U.S. at 690-91. “[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 691 (emphasis added). In evaluating counsel’s decision not to investigate, this court must assess the decision’s reasonableness in light of “all the circumstances,” “applying a heavy measure of deference to counsel’s judgments.”  Id.

…

¶31  Sargent determined that evidence of a previous sexual assault against Cassandra was irrelevant to his defense strategy of challenging Cassandra’s credibility through Denise by demonstrating that there was a breakdown in Denise and Carter’s relationship, and Denise used Cassandra as a tool in that breakup. That determination was a reasonable one. Whether Cassandra was previously sexually assaulted by a third party would not have necessarily assisted the trier of fact in assessing whether Denise’s broken relationship with Carter caused her to pressure Cassandra into making allegations against Carter. If Denise pressured Cassandra into making up the allegations, the jury could have believed that Denise was the source of Cassandra’s sexual knowledge, regardless of the alleged previous sexual assault.

¶32  In addition, it was reasonable for Sargent to conclude that if he presented evidence of the previous sexual assault, the jury would have questioned his chosen defense theory. The jury could have found it even less likely that Denise would put her daughter through a lie about sexual assault allegations, given the fact that Cassandra was already a victim. It was a reasonable trial strategy to not risk causing greater sympathy for Cassandra by introducing her as a victim of sexual assault and then directly attacking her credibility. On balance, when evidence of the previous sexual assault is weighed with the strategy employed, and there is already an alternative source of sexual knowledge, that being Cassandra’s mother, the fact that Cassandra was previously sexually assaulted militates against the defense. Furthermore, the jury could have concluded that this child was vulnerable to sexual assault by Carter because she was previously a victim.  In the end, the jury had to decide who it believed: the child or Carter. Whether the child was a previous victim of sexual assault would not have necessarily assisted the jury in answering that question.[12]

¶33  Even more reasonable, however, was Sargent’s concern that presenting evidence of the previous sexual assault would have built up the jury’s sympathy for Cassandra. …

The sticking point is whether a reasonable tactical choice could have been made on less than complete research, the majority concluding, ¶34:

… Sargent reasonably decided that further investigation of the alleged prior sexual assault and its admissibility was unnecessary. However, to be clear, we do caution that the better practice is for counsel to always research and be familiar with pertinent legal authority.  In another case, the failure to do so may constitute deficient performance. Under “all the circumstances” of this case, id., however, we conclude that Sargent’s decision not to investigate was reasonable.

The concurrence disagrees on this point, ¶¶55-80, all but arguing that decision-making uninformed by full knowledge of operative legal principles is necessarily deficient. But why can’t counsel decide, without fully researching applicable evidentiary principles, that certain evidence wouldn’t advance the defense in any event? It’s not as if counsel failed to consider the import of the evidence at all. Rather, counsel looked closely at the facts (no one claims otherwise) and determined that presenting them to the jury would be counter-productive. The majority says that, taking everything into account, this effort wasn’t deficient as a matter of law. And that is all. A relatively narrow, fact-specific holding that could and should have ended the matter. Should have but did not. Hence the court’s further if unnecessary discussion on

Prejudice.

The court concludes that the alleged prior assault wouldn’t have been admissible under the rape-shield law, § 972.11(2)(b), therefore failure to pursue its admissibility wasn’t prejudicial. State v. Pulizzano “articulated a narrow test that the defendant must satisfy in order ‘to present otherwise excluded evidence of a child complainant’s prior sexual conduct for the limited purpose of proving an alternative source for sexual knowledge,'” ¶42. Failure to satisfy 1 of the 5 Pulizzano factors defeats the claim; Carter fails two. He can’t show the prior assault “clearly occurred,” ¶¶45-48. Separately, the offer of proof of the prior alleged assault didn’t “closely resemble” the charged offense because the former involved sexual contact and the latter intercourse, ¶52.

A bit of judicial activism at work. Once the court determined that counsel’s performance was up to snuff then there was no need — none — to discuss prejudice. True, as the concurrence quite properly points out, ¶58, the case should have been resolved “solely” on the issue of no prejudice. Indeed, Strickland exhorts reviewing courts in just that manner. (“The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.”) It’s not apparent why the majority didn’t choose that route. But the fact is, it didn’t, and without deficient performance the issue of prejudice is entirely irrelevant. Worse, once the majority undertook to resolve prejudice as well as deficient performance it could have resolved it purely on the basis of no clear occurrence. The majority recognized as much, ¶48, but proceeded to the next analytical step (“clearly resembled”) anyway. The ensuing analysis is problematic, ¶¶49-52, not least because it makes the “clearly resembled” step overly stringent. Take note that the court very recently took review in a rape shield case, and it may be that even more obstacles to admissibility are in the offing.

United States Supreme Court per curiam decision

Habeas Review

Petitioner Lawrence Jefferson, who has been sentenced to death, claimed in both state and federal courts that his lawyers were constitutionally inadequate because they failed to investigate a traumatic head injury that he suffered as a child.  The state court rejected that claim after making a finding that the attorneys were advised by an expert that such investigation was unnecessary. Under the governing federal statute, that factual finding is presumed correct unless any one of eight exceptions applies. See 28 U. S. C. §§2254(d)(1)–(8) (1994 ed.). But the Court of Appeals considered only one of those exceptions (specifically §2254(d)(8)). And on that basis, it considered itself “duty-bound” to accept the state court’s finding, and rejected Jefferson’s claim. Because the Court of Appeals did not fully consider several remaining potentially applicable exceptions, we vacate its judgment and remand.

Very briefly put, the state court made a crucial finding of fact adverse to Jefferson’s claim; on federal habeas review, the court of appeals ruled that, because the finding had support in the record, it must be respected. However, as the block quote suggests, the lower court neglected to determine whether the finding was undermined under other analyses. The Court determines that the procedure by which the state court derived the finding — an ex parte contact with the prosecutor — fit such an exception: “In treating §2254(d)(8) as the exclusive statutory exception, and by failing to address Jefferson’s argument that the state court’s procedures deprived its findings of deference, the Court of Appeals applied the statute and our precedents incorrectly.” Keep in mind that the case was filed before AEDPA’s effective date “and is therefore governed by federal habeas law as it existed prior to that point.” AEDPA requires among other things that the habeas court apply law clearly established by Supreme Court precedent. And note that the Court in this very case recognizes that, while it has criticized the practice, the Court has also “stated that a court’s “verbatim adoption of findings of fact prepared by prevailing parties’ should be treated as findings of the court.”

Question Presented:

May a convicted prisoner seeking access to biological evidence for DNA testing assert that claim in a claim in a civil rights action under 42 U.S.C. § 1983, or is such a claim cognizable only in a petition for writ of habeas corpus?

Docket: 09-9000

• Petition for certiorari
• Brief in opposition
• Petitioner’s reply

Scotusblog analysis notes, in part:

Skinner is seeking to raise an issue that the Justices had agreed to review last Term in District Attorney’s Office v. Osborne (08-6). The Court decided the Osborne case on June 18, but left unresolved that specific issue. The question is whether a state inmate seeking access to and testing of DNA evidence may pursue that claim under civil rights law (Section 1983), rather than in a federal habeas challenge. Skinner’s lawyers contend that he has tried unsuccessfully to use Texas state procedures for DNA testing, so his only remaining chance to get it is through a civil rights claim.

Wisconsin affords a statutory right to postconviction DNA testing under certain conditions, see generally § 974.07; State v. James M. Moran, 2005 WI 115; State v. Kenneth A. Hudson, 2004 WI App 99, but it wouldn’t hurt to have a federally-guaranteed right in place. Nor should it be overlooked that Wisconsin courts have jurisdiction over 1983 claims, Terry v. Kolski, 78 Wis.2d 475, 254 N.W.2d 704 (1977). That is: if the right to postconviction testing is enforceable via 1983, then relief can be sought in a state court without having to go to federal court.

Related developments will no doubt occur at an accelerating rate, but for now take note of these if for no reason other than fortuitous timing:

• UW’s Keith Findley has just posted Innocence Protection in the Appellate Process (“If protecting against mistaken conviction of the innocent is indeed a primary objective in criminal appeals, it is fair to ask how well the system serves that function. Unfortunately, judging by the recent evidence, especially the empirical evidence from cases in which postconviction DNA testing has proved that an innocent person was wrongly convicted, the appellate process in criminal cases is largely a failure on this most important score.”)
• Prosecutors seek cases where further DNA testing could confirm or cast doubt on defendants’ guilt (“Milwaukee County prosecutors and national experts will review the roughly 2,100 homicide prosecutions filed in the county since 1992 in an effort to identity cases in which further DNA testing could either confirm or cast doubt upon the defendant’s guilt, District Attorney John Chisholm said Monday.”).
• House votes to expand national DNA arrest database (“Millions of Americans arrested for but not convicted of crimes will likely have their DNA forcibly extracted and added to a national database, according to a bill approved by the U.S. House of Representatives on Tuesday.”).

A fundamental law of physics: there’s no such thing as a free lunch. The benefits of safeguarding the innocent will incur the costs of intruding on privacy interests, among other things.

U.S. v. O’Brien, USSC No. 08-1569, 5/24/10

§ 924(c)(1)(B)(ii), which exposes a person convicted of possessing, using or carrying a machinegun during certain federal crimes to a mandatory minimum sentence of 30 years is an offense element subject to proof beyond reasonable doubt at trial rather than a penalty enhancer provable by mere preponderance of the evidence at sentencing.

The border between offense element and sentence enhancer remains indistinct at crucial junctures. The so-called sentencing revolution was ushered in with Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”). But what happens when the aggravating fact triggers a mandatory minimum; an increase in the floor rather than ceiling? The Court suggests that this question is one of legislative intent (“Subject to this constitutional constraint, whether a given fact is an element of the crime itself or a sentencing factor is a question for Congress.”). This analysis turns on the following “five factors directed at determining congressional intent: (1) language and structure, (2) tradition, (3) risk of unfairness, (4) severity of the sentence, and (5) legislative history.” Whether those particular factors are constitutionally mandated might be interesting, though not necessarily of much moment for Wisconsin practice, where mandatory minimums are few and far between. But this just masks a more fundamental problem, which is whether any sentencing aggravators are subject to the proof beyond reasonable doubt requirement of Apprendi. The opinion contains, in this regard, the following intriguing aside:

… Sentencing factors traditionally involve characteristics of the offender—such as recidivism, cooperation with law enforcement, or acceptance of responsibility. … Characteristics of the offense itself are traditionally treated as elements, and the use of a machinegun under §924(c) lies “closest to the heart of the crime at issue.” …

This fault line — offender- vs, offense-characteristics — was recognized some time ago by sentencing expert Doug Berman, and he is naturally excited to see it expressed now by the Court (as to which, along with relevant links, go here). There has been surprisingly little  Wisconsin litigation aimed at defining the boundary between substantive offense and sentencing enhancement. And what little there is isn’t terribly helpful. Compare, for example, State v. Gibson, 2000 WI App 207, 238 Wis.2d 547, 618 N.W.2d 248 (second offense possession of a firearm by a felon, § 941.29(2m) (1997-98), which contains language “whoever violates … is guilty of a Class D felony,” is substantive offense), with State v. Morris, 108 Wis.2d 282, 322 N.W.2d 264 (1982) (similar language in concealing identity during commission of crime, § 946.62 (1979-80) creates sentence enhancer). In brief, there’s a recurrent underlying problem not likely to be resolved anytime soon. And that in turn suggests remaining alert to the need to enter proper objection so that the issue can be properly litigated.

U.S. v. Marcus, USSC No. 08-1341, 5/24/10

… (A)n appellate court may,in its discretion, correct an error not raised at trial only where the appellant demonstrates that (1) there is an “error”; (2) the error is “clear or obvious, rather than subject to reasonable dispute”; (3) the error “affected the appellant’s substantial rights, which in the ordinary case means” it “affected the outcome of the district court proceedings”; and (4) “the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings ….

This case is decided under FRCrP 52(b), which means of course that it isn’t binding on state appeals. Wisconsin’s tends to equate “plain error” with violation of a constitutional right, and might in practice not be terribly different from the federal test, if rhetorically distinct,  State v. James D. Lammers, 2009 WI App 136, ¶12 (if nothing else, unpreserved error “must be ‘obvious and substantial,’ and courts should use the plain error doctrine sparingly”). Plain error review is quite distinguishable from its counterpart for reviewing unpreserved error, interest of justice, e.g., State v. Jonathan J. Hubbard, 2007 WI App 240, ¶18 (“When we invoke our discretionary reversal power on grounds that the real controversy has not been tried, we need not determine whether the outcome of the trial would have been different on retrial.”).

The claimed error might be of some interest: whether Marcus’ commission of a “continuing offense” that straddled the effective date of the offense violated the ex post facto clause. The Court put it this way: “The error at issue in this case created a risk that the jury would convict respondent solely on the basis of conduct that was not criminal when the defendant engaged in that conduct. A judge might have minimized, if not eliminated, this risk by giving the jury a proper instruction.” Moreover, the risk even if actualized would have presented a due process rather than ex post facto problem: “Rather, if the jury, which was not instructed about the TVPA’s enactment date, erroneously convicted Marcus based exclusively on noncriminal, preenactment conduct, Marcus would have a valid due process claim.”

Wisconsin supreme court decision

Sixty-day suspension imposed for conceded misconduct consisting of: failure to take timely action with respect to civil forfeiture action against client; failure to respond to client’s reasonable requests for information and to timely communicate case developments; failure to explain legal implications of various dealings related to representation, ¶20.

¶28  Contrary to Attorney Anderson’s suggestion, not all cases imposing a license suspension involve dishonesty. See In re Disciplinary Proceedings Against Whitnall, 230 Wis. 2d 194, 195-96, 600 N.W.2d 910 (1999). Attorney Whitnall had been disciplined three previous times. See id. His misconduct involved a lack of diligence and cooperation with the OLR investigation, resulting in a 60-day suspension. Also, in the case of In re Disciplinary Proceedings Against Jones, 176 Wis. 2d 140, 499 N.W.2d 674 (1993), after Attorney Jones had been disciplined five previous times, he was found to have violated his duties of diligence and communication. See Jones, 176 Wis. 2d at 141, 143. His license was suspended 60 days. Id.

¶29  We are not persuaded a monetary penalty would satisfy the objectives of attorney discipline. Attorney Anderson has demonstrated a pattern of misconduct; this is his fourth disciplinary proceeding involving similar misconduct. We note Attorney Anderson’s expressions of remorse and his cooperation in these proceedings. We conclude, nonetheless, a license suspension for a minimal period is called for under the circumstances.  Attorney Anderson must be impressed with his professional obligation to pursue diligently the interests of those persons who rely on him to protect and further their interests in the legal system. We conclude progressive discipline in the form of a 60-day license suspension is warranted.