On Point

State v. Dione Wendell Haywood, 2009 WI App 178
For Haywood: Robert E. Haney

Issue/Holding: Asserted prosecutorial misconduct, in the form of misleading statements during allocution, is tested under State v. Wolff, 171 Wis. 2d 161, 167, 491 N.W.2d 498, 501 (Ct. App. 1992) (whether “what the prosecutor does has ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process’”), ¶15. On the merits, the prosecutor merely alluded to what the uncontradicted evidence at trial proved, hence “was wholly fair comment,” ¶17.

Does it make sense to import into the law of sentencing the test for mistrial occasioned by improper closing argument? Are these events sufficiently comparable? If so, then why isn’t the test derived from Napue v. Illinois, 360 U.S. 264, 269-272 (1959) (defendant denied due process when prosecutor obtains conviction with aid of evidence prosecutor knew or should have known to be false and new trial required when there is a reasonable likelihood that false testimony affected verdict)? Worse, if the challenged argument “was wholly fair,” then why fashion a novel test? No error occurred anyway, there’s nothing to challenge, and the court’s exercise is entirely unnecessary. Worse still, the issue isn’t even ripe for review under this test (“Further, Haywood did not object to what the prosecutor did, and this forfeits his right to have review other than in an ineffective-assistance-of-counsel context,” ¶15.).

State v. Kenneth Parrish, 2002 WI App 263, PFR filed 11/11/02
For Parrish: Charles B. Vetzner, SPD, Madison Appellate

Issue/Holding: Although evidence of volitional impairment is required and in this bench trial the trial court erred in commenting to the contrary, ¶35, the court in fact found the existence of such evidence, ¶36.

State v. Eric Pletz, 2000 WI App 221, 239 Wis.2d 49, 619 N.W.2d 97
For Pletz: Michael J. Backes

Issue: Whether the evidence was sufficient to support a finding that the 980 subject suffered from a qualifying mental disorder, given that the experts split on the issue.

Holding:

¶15 Pletz argues that the two psychologists who testified on his behalf offered more credible testimony, and that neither one diagnosed Pletz as suffering from pedophilia or any other mental disorder which would satisfy the definition of a sexually violent person. The fact that this case presented a ‘battle of the experts’ does not alter our conclusion that the jury was presented with sufficient evidence to support the verdict it reached. The jury assessed the credibility of the expert witnesses and reached a conclusion adverse to Pletz. The testimony presented by the State’s witnesses is sufficient to uphold the jury’s verdict despite the fact that the defense presented testimony from expert witnesses who disagreed.

State v. Frederick L. Pharm, 2000 WI App 167, 238 Wis. 2d 97, 617 N.W.2d 163
For Pharm: Jack E. Schairer

Issue: Whether Pharm waived objection to the prosecutor’s authorization to file a Ch. 980 petition.

Holding: Pharm’s failure to object to the prosecutor’s filing the petition without going through the Department of Justice under §§ 990.015 and 980.02(1) waived the issue, ¶9.

Guerrero v. Cavey, 2000 WI App 203, 238 Wis.2d 449, 617 N.W.2d 849

Issue: Whether a person adjudicated incompetent may waive her attorney’s conflict of interest.

Holding: Because the client’s understanding of the attorney’s potentially divided loyalty is a necessary component of waiver of a conflict, and because no claim is made that the circuit court erred in finding the mother to be incompetent, she was, “as a matter of law… incapable of making a knowing and voluntary waiver of the conflict of interest[,” ¶23.

Guerrero v. Cavey, 2000 WI App 203, 238 Wis.2d 449, 617 N.W.2d 849

Issue: Whether an attorney’s dual representation of the subject of a guardianship and her son worked a conflict of interest.

Holding: The two clients had competing interests, including the son’s desire to buy his mother’s house at below market value, and the attorney therefore had a conflict of interest, ¶¶13-17.

State v. David Kalk, 2000 WI App 62, 234 Wis. 2d 98, 608 N.W.2d 428
For Kalk: John A. Pray, UW Law School

Issue: Whether the defendant satisfied his burden of showing an actual conflict of interest stemming from his prior representation by the prosecutor on an unrelated charge.

Holding: Given the trial court’s findings of historical fact, defendant did not show that his prosecution was influenced by the prior representation.Analysis: Kalk’s prosecutor had previously represented him on an unrelated charge. Kalk didn’t object until a postconviciton motion asserting conflict of interest. Though Kalk asserted that during this prior case he revealed to the prosecutor damaging information about himself, the trial court found that he hadn’t, and also that the current prosecution wasn’t influenced by the prior representation. The court of appeals says that this “reverse representation” case, though novel, is similar to any other conflict of interest situation: where no objection is lodged, the defendant must show by clear and convincing evidence an actual conflict, which in this context would be that the prosecutor had a competing loyalty which adversely affected Kalk’s interests. ¶16. The trial court’s findings are entitled to deference, and given those findings, along with the absence of any connection between the prior and present cases, the court discerns no competing loyalties. ¶¶19-21.

What happens when counsel for a defendant on a pending case lands a job with the prosecutor? See Johnson v. State, 2003 WY 9, 61 P.3d 1234, setting down the following guidelines “which must be followed”:

1. Oral and written directions must be given to all staff members that the attorney will not participate in any matter in which the attorney participated as a public defender or criminal defense attorney. A written screening policy must be put in place to ensure this requirement is met.2. A letter should be directed to every former client of the attorney announcing the new employment relationship. This letter may be sent to the client, care of the client’s current attorney. Ideally, this letter should appear in the court record of an affected criminal case.

3. The prosecuting attorney’s screening policy should be sent to every judge in the district, circuit, and/or county affected.

4. A copy of the screening policy should be placed in every active case file in which the attorney participated.

5. All office employees should be advised both orally and in writing that any violation of the screening process must be reported immediately and that inattention to the screening policy will result in discipline.

6. In a prominent location near case files, post a list of all cases from which the attorney is to be screened.