On Point

State v. Theodore Oswald, 2000 WI App. 2, 232 Wis.2d 62, 606 N.W.2d 207
For Oswald: Jerome F. Buting, Kathleen B. Stilling

Issue: Whether counsel was ineffective for rejecting an NGI defense, where two defense experts rejected the defense but after trial one acknowledged that he misunderstood the correct test and that his opinion was now different.

Holding: “Competent representation does not demand that counsel seek repetitive examinations of the defendant until an expert is found who will offer a supportive opinion.” ¶77, quoting People v. Williams, 751 P.2d 395, 437 (1988).

Keep in mind the caution of Rogers v. Israel, 746 F.2d 1288 (7th Cir. 1984) that counsel has a duty to seek an opinion from a qualified expert; whether Oswald’s result would have been the same had only the second expert been consulted is doubtful, though not explicitly addressed by the court. That aside, the court’s dismissal of the claim is a bit too glib, or, rather, should not be accepted a some broad principle that merely retaining the expert is enough — on this point, see Richey v. Mitchell, 6th Cir No. 01-3477, 1/25/05:

At the outset, the State, and the dissent to this opinion, argue that Richey has no constitutional right to the “effective assistance of an expert.” The district court also noted that it was not unreasonable for trial counsel to “decline [to conduct] further expert-shopping once that expert rendered his opinion.” … But Richey argues, and the record reflects, that the failures of Richey’s expert were largely caused by the failures of Richey’s counsel. See Bloom v. Calderon, 132 F.3d 1267, 1277 (9th Cir. 1997) (“[C]ounsel’s failure to adequately prepare his expert and then present him as a trial witness [amounts to] constitutionally deficient performance.”). As Richey’s counsel observes, “[i]ncompetence cannot excuse incompetence.”… [T]he deficiencies of an expert can be imputed to counsel when counsel has failed to adequately research and screen an expert witness. See Glenn v. Tate, 71 F.3d 1204, 1210 n.5 (6th Cir. 1995) (finding deficient performance because “we are not prepared to assume that Drs. Ramani and Siddal would have been the experts retained by the defense . . . if counsel had done their homework”). Thus, counsel owes more to his client than a passive duty to watch for red flags of incompetence.

…

Trial counsel’s failure to screen, supervise, or engage DuBois left Richey with little more than “a warm body with a prefix attached to his name,” Skaggs, 235 F.3d at 273 n.3 ….

See also, Jacobs v. Horn, 3rd Cir No 01-9000, 1/20/05 (deficient performance where counsel sought opinion from expert in support of mental capacity defense, and stopped investigating the defense further upon the expert’s unfavorable opinion, but the expert was not adequately apprised of relevant background, and the expert’s evaluaiton therefore was not “sufficiently extensive”).

Vonaire T. Washington v. Smith, 219 F.3d 620 (7th Cir. 2000)
For Washington: Robert R. Henak

Issue/Holding: Trial consel’s performance was deficient in three respects:

• Last-minute issuance of subpoena for hard-to-find witness, on theory that trials are often adjourned at last minute anyway. (“(P)lacing witness convenience above the vital interests of his client does not make Mr. Engle’s decsion reasonable — or even really strategic.”)
• Failure to investigate potential defense witnesses. (“Telling a client, who is in custody awaiting trial, to produce his own witnesses (as did Mr. Engle) falls painfully short of conducting a reasonable investigation, especially given that Sharon and David Brown did not have a telephone…. (I)t is wholly unreasonable for a lawyer to instruct his incarcerated client to get in touch with people who don’t have a phone.”)
• Failure to read police report.

Juneau County DHS v. James B., 2000 WI App 86, 234 Wis. 2d 406, 610 N.W.2d 144
For Appellant; James L. Boardman; Chris R. Velnetske

Issue: Whether judicial appointment of counsel in a CHIPS case necessarily terminates after disposition, or may be continued for appeal.

Holding: Judicial appointment of counsel in a CHIPS case doesn’t automatically terminate upon disposition, the circuit court retaining authority to continue the appointment for purposes of appeal. Whether the appointment should be continued is a matter of discretion, implicating the factors in Joni B. v. State, 202 Wis. 2d 1, 549 N.W.2d 411 (1996). Because the trial court failed to apply this test, the matter is remanded so that it can do so. ¶¶8-10

§ 809.85, which continues on appeal a trial-level judicial appointment of counsel until the court of appeals relieves counsel, isn’t applicable here, “because no appeal has yet been commenced,” ¶5.

State v. Samuel Terry, 2000 WI App 250, 239 Wis. 2d 519, 620 N.W.2d 217
For Terry: Richard D. Martin, SPD, Milwaukee Appellate

Issue/Holding:

¶1 … Terry argues that, under the doctrine of issue preclusion, the State was precluded from criminally prosecuting him for possession of cocaine with intent to deliver because the Administrative Law Judge (ALJ), at his probation and parole revocation proceeding, determined that there was insufficient proof that Terry possessed cocaine, even under the relaxed preponderance of the evidence standard. We conclude that, while administrative agency decisions are given preclusive effect between the same parties in some instances, the doctrine of issue preclusion should not be applied to findings made in parole and probation revocation proceedings for three reasons: (1) the executive branch oversees revocation hearings through the Department of Corrections (DOC), and the district attorney is not a party. Moreover, DOC is generally disinclined to seek review of the ALJ’s decision in a parole and probation revocation proceeding; (2) parole and probation revocation proceedings in this state and criminal trials have critical differences in procedure and function which militate against applying issue preclusion to revocation proceedings; and (3) public policy considerations weigh against applying issue preclusion to revocation proceedings. Thus, the state was not precluded from subsequently prosecuting Terry for possessing cocaine with the intent to deliver and we affirm.

State v. David J. Cleveland, 2000 WI App 142, 237 Wis. 2d 558, 614 N.W.2d 543
For Cleveland: Suzanne L. Hagopian, SPD, Madison Appellate

Issue: Whether multiple sexual assault counts arising during a single incident violated double jeopardy.

Holding: Though the offenses weren’t separated in time, each required separate volitional acts and were therefore significantly different in nature for double jeopardy purposes. ¶¶24-26.

State v. Gabriel Derango, 2000 WI 89, 236 Wis. 2d 721, 613 N.W.2d 833, affirming State v. DeRango 229 Wis. 2d 1, 599 N.W.2d 27
For Derango: Robert G. LeBell

Issue: Whether conviction for both attempted child sexual exploitation and child enticement as a result of a single act is multiplicitous.

Holding: The two offenses are elementally distinct and therefore aren’t the “same” for multiplicity purposes, ¶¶32-34; nor is there any indication that the legislature intended to prohibit cumulative punishment for these different offenses, ¶¶34-36.

State v. Rovaugn Hill, 2000 WI App 259, 240 Wis.2d 1, 622 N.W.2d 34
For Hill: Gerald P. Boyle

Issue: Whether reprosecution should be barred on double jeopardy grounds, because prosecutorial overreaching had caused a mistrial.

Holding: “[D]ouble jeopardy bars a retrial when the defendant has successfully moved for a mistrial, if the prosecutor acted with intent to gain another chance to convict or to harass the defendant with multiple prosecutions.” ¶12.

Here, mistrial followed from the prosecutor’s filing at trial an amended information containing reduced charges, based on his view that the jury would be confused by the elements of the charged, greater offenses. The trial court’s finding that this action was not intended to provoke a mistrial is upheld, as not clearly erroneous, and retrial therefore allowed to proceed on the amended information.