In Re: A Witness Before the Special Grand Jury, 288 F.3d 289 (7th Cir. 2002)
Issue/Holding: Privilege between government lawyer and client — state agency — does not extend to criminal proceedings such as grand jury investigation.
State v. Johnny L. Green, 2002 WI 68, affirming unpublished court of appeals opinion
For Green: Nicolas G. Griswold
Issue/Holding: The court modifies the threshold showing required for an in camerainspection, in favor of “a slightly higher standard,” namely a “‘reasonable likelihood’ that the records will be necessary to a determination of guilt or innocence.”¶32.
¶34. Based on the above considerations, we set forth the following standard: the preliminary showing for an in camera review requires a defendant to set forth, in good faith, a specific factual basis demonstrating a reasonable likelihood that the records contain relevant information necessary to a determination of guilt or innocence and is not merely cumulative to other evidence available to the defendant. We conclude that the information will be “necessary to a determination of guilt or innocence” if it “tends to create a reasonable doubt that might not otherwise exist.” See Fuller, 667 N.E.2d at 855. This test essentially requires the court to look at the existing evidence in light of the request and determine, as the Shiffra court did, whether the records will likely contain evidence that is independently probative to the defense.¶35. In creating this standard, we intend to place the burden on the defendant to reasonably investigate information related to the victim before setting forth an offer of proof and to clearly articulate how the information sought corresponds to his or her theory of defense. A good faith request will often require support through motion and affidavit from the defendant. Our standard is not intended, however, to be unduly high for the defendant before an in camera review is ordered by the circuit court. The defendant, of course, will most often be unable to determine the specific information in the records. Therefore, in cases where it is a close call, the circuit court should generally provide an in camera review. See Walther, 2001 WI App at ¶14. We have confidence in the circuit courts to then make a proper determination as to whether disclosure of the information is necessary based on the competing interests involved in such cases. See Shiffra, 175 Wis. 2d at 611. A circuit court may always defer ruling on such a request or require a defendant to bring a subsequent motion if the record has not had time to develop. A motion for seeking discovery for such privileged documents should be the last step in a defendant’s pretrial discovery.
Green’s showing falls short. He merely asserted that statements made in counseling might be inconsistent with other pretrial statements, ¶37.
But see State v. Frederick Robertson, 2003 WI App 84 (showing necessary for in camera inspection met, on postconviction review, Where defense found out after trial that complainant had been treated for depression with psychotic features around the time of the incident, and the principal trial issue concerned the complainant’s credibility.
State v. Sisakhone S. Douangmala, 2002 WI 62
For Douangmala: Robert R. Flatley
Issue/Holding:
¶3 This case presents the following question: If a circuit court fails to give the deportation warning required by § 971.08(1)(c), when accepting a guilty or no-contest plea, is a defendant entitled to withdraw the plea later upon a showing that the plea is likely to result in the defendant’s deportation, regardless of whether the defendant was aware of the deportation consequences of the plea at the time the defendant entered the plea?
¶4 We answer the question presented in the affirmative. We conclude that Wis. Stat. § 971.08(2) expressly sets forth the remedy to be granted upon a defendant’s motion if a circuit court fails to advise a defendant about deportation consequences as required by § 971.08(1)(c) and if the defendant shows that the plea is likely to result in deportation. Section 971.08(2) states that under these circumstances the circuit court “shall vacate any applicable judgment against the defendant and permit the defendant to withdraw the plea and enter another plea.” The defendant in the present case fulfilled the conditions set forth in § 971.08(2), and accordingly we reverse the decision of the court of appeals affirming the order of the circuit court that >denied the defendant’s motion to withdraw his no-contest plea. We remand the cause to the circuit court to vacate the judgment of conviction and permit the defendant to withdraw his plea and enter another plea.
The court thus overrules the following series of “harmless error” cases in the area, namely holdings that affirm a guilty plea, despite omitted judicial advice on deportation, if the defendant actually knew of the potential for deportation: State v. Chavez, 175 Wis. 2d 366, 498 N.W.2d 887 (Ct. App. 1993); State v. Issa, 186 Wis. 2d 199, 209, 519 N.W.2d 741 (Ct. App. 1994); State v. Lopez, 196 Wis. 2d 725, 732, 539 N.W.2d 700 (Ct. App. 1995); and State v. Garcia, 2000 WI App 81, ¶1, 234 Wis. 2d 304, 610 N.W.2d 180. Note, too, that the court stresses the requirement that non-English speaking defendants require interpreters at public expense, ¶¶44-45.What, though, if the defendant knows s/he could be deported but is inaccurately told by counsel that s/he won’t be? The issue might then become one of ineffective assistance of counsel, see generally People v. McDonald, 2003 NYSlip Op 18777, 11/24/03, and cases cited [and note, too, the explicit requirement exemplified by that case that there must be an unequivocal “factual allegation that, but for counsel’s error, defendant would not have pleaded guilty”]. But see State v. Gonzales, 134 P.3d 955 (Or. 2006) (advising defendant that he might be deported was IAC, where deportation was near-certainty upon guilty plea; neither counsel nor court required “to specify the likelihood that a particular defendant will be deported”), reversing191 Or App 587, 83 P.3d 921. The idea seems to be that saying nothing about a collateral consequence doesn’t affect validity of the plea, see, e.g., Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L Rev 697, 699 (2002) (no court rejects the principle “that lawyers need not explain collateral consequences”); but misinforming the defendant of a collateral consequence may undermine a guilty plea — though as Gonzales illustrates, fine questions may be raised by the extent of the misinformation required to invalidate the plea.
.
The deportation door swings both ways: clients get deported into as well as out of the U.S., and it pays to makes sure that former isn’t returned with strings attached, see, e.g.,Benitez v. Garcia, 495 F. 3d 640 (9th Cir. 2007) (Venezuela conditioned Benitez’s extradition for murder on sentence not longer than 30 years; this condition, however, wasn’t enforced in the event).
State v. John T. Trochinski, 2002 WI 56, affirming unpublished decision
For Trochinski: James L. Fullin, SPD, Madison Appellate
Issue: Whether the defendant met his burden of showing a prima facie case that he didn’t understand an element of the offense to which he pleaded guilty.
Holding:
¶22. Wisconsin’s courts have been relying on Bangert since it was written in 1986, and nothing in that case suggests that a circuit court is required to do as Trochinski suggests here–describe the elements of the offense and ensure the defendant specifically understands how the State must prove each element. Trochinski alleges that he did not understand that every nude photo of him is not necessarily harmful to children. However, this is not required. Wisconsin Stat. § 971.08 and Bangert require that Trochinski knew and understood the elements of the offense.
¶23. Applying the Bangert standard and procedure to the facts presented here, and upon review of the record, we conclude that Trochinski has failed to meet his burden to establish a prima facie case. Trochinski’s knowledge of the elements of the offense is clearly established by both the signed plea questionnaire and the plea colloquy. The elements of § 948.11(2) are clearly laid out on the plea questionnaire, including ‘[y]ou exhibited harmful material to a child’ and ‘[y]ou had knowledge of the nature of the material.’ Furthermore, during the plea colloquy Trochinski acknowledged he understood the plea form, the information in the form was truthful, and again the court summarized the elements of the crime as applied to the offense to which Trochinski was pleading no contest. Moreover, at the postconviction hearing, Trochinski testified that he understood the elements of the offense, and that he knew the photos were harmful and were ‘totally inappropriate’ for children.”
Court stresses that defendant need know “only knowledge of the elements of the offense, not a knowledge of the nuances and descriptions of the elements.” ¶29.
State v. Scott G. Zuniga, 2002 WI App 233, PFR filed 9/13/02
For Zuniga: Chad G. Kerkman
Issue/Holding: Because the defendant was warned by the judge at a bond-release hearing that if he engaged in misconduct the state would seek a longer sentence, “the parties effectively modified the plea agreement by making the State’s obligation conditional upon Zuniga’s good behavior while in the community. In proceeding under these circumstances, Zuniga ‘opted to take his chances under the terms of the modified plea agreement.'” ¶15.
¶17. In sum, we reject the State’s argument that because Zuniga engaged in misconduct between entry of the plea and sentencing, the State was excused as a matter of law from fulfilling its promises under the agreement. Instead, we determine that under the particular facts of this case the plea agreement was amended by the parties during the bond hearing. The circumstances surrounding this amendment of the plea agreement violate no standards of fairness or decency nor any factors bearing upon due process. See Paske, 121 Wis. 2d at 475. Zuniga was fully cognizant of the risks inherent in his request for release and the terms under which his request was granted. Zuniga’s participation in the amended plea agreement was freely and voluntarily made and was not the product of any violation of due process, and while the sentence meted out by the trial court did not comport with the terms of the original plea agreement, it fully comported with the agreement as amended.
The facts simply don’t seem to support the court’s characterization. At the release hearing the judge (not the prosecutor) suggested that the state might “change their minds by screwing up while you’re out on bond.” ¶4. Is this really clear enough to support a change in a “constitutional contract”? For starters, what is meant by “screwing up”? And just what were the new terms supposed to be? Why, for that matter, wasn’t the defendant entitled to withdraw his plea if the court found a breach? Too many questions, not enough answers.
State v. Paul Delao Quiroz, 2002 WI App 52
For Quiroz: Chad G. Kerkman
Issue:Whether defendant was entitled to withdraw his plea on the basis that he was unaware of the three-year presumptive minimum sentence on the weapon enhancer.
Holding:
¶25 Both the complaint and the information contained the dangerous weapon enhancer and set forth the presumptive three-year minimum penalty. Quiroz admitted that he was familiar with both the complaint and the information and was aware that the dangerous weapon enhancer applied when he pled guilty. At sentencing, the prosecutor noted that there was a three-year presumptive minimum penalty and Quiroz agreed with the prosecutor’s recitation of the plea and penalty. Both Quiroz and his attorney requested three years’ imprisonment. We conclude that the record as a whole demonstrates that Quiroz was aware of the three-year presumptive minimum penalty, and thus Quiroz entered his plea knowingly, voluntarily and intelligently.
State v. Jon P. Barreau, 2002 WI App 198, PFR filed 8/12/02
For Barreau: Glenn C. Reynolds
Holding: A witness’s pending criminal charges are relevant to bias, even absent promises of leniency. ¶55. In this instance, the trial court prohibited cross-examination about whether the witness was receiving benefits from the state for his testimony, but only after the witness testified outside the jury’s presence that there were none. Any error on the inhibition of confrontation was therefore harmless. Additionally, there was no prohibition on asking the witness whether he had any pending charges; though counsel didn’t pursue that inquiry, there was no error, because confrontation requires only the opportunity for effective cross-examination, not its actualization.
State v. Troy D. Moore, 2002 WI App 245
For Moore: Suzanne L. Hagopian, SPD, Madison Appellate
Issue/Holding: Extrinsic evidence offered by the state solely to bolster a witness’s credibility, by showing that he had provided reliable information leading to the arrests of other drug dealers, violated § 906.08(2). ¶15. (Note: the court holds open the question of whether such evidence might be admissible under § 904.04(2). ¶15 n. 2.)
