A disciplinary action against an attorney is a civil proceeding and he is not entitled to the appointment of an attorney if he is indigent. State v. Hildebrand, 48 W (2d) 73, 179 NW (2d) 892.
An indigent defendant is not entitled to a substitution of appointed counsel when he is dissatisfied with the one appointed. Peters v. State, 50 W (2d) 682, 184 NW (2d) 826.
ABA Standards relating to the duty of defense counsel approved, but their violation does not automatically prove incompetency or ineffectiveness. State v. Harper, 57 W (2d) 543, 205 NW (2d) 1.
An arrested man has no right to demand that counsel be present while a breathalyzer test is administered. State v. Driver, 59 W (2d) 35, 207 NW (2d) 850.
Defendant has no right to counsel or to be present when photographs are shown to a witness. His right to counsel exists only at or after the initiation of criminal proceedings against him. Holmes v. State, 59 W (2d) 488, 208 NW (2d) 815.
It is not desirable, but is not error, to appoint a city attorney from another city, not connected with the testifying police, as defense attorney. Hebel v. State, 60 W (2d) 325, 210 NW (2d) 695.
A person is not entitled to counsel at a lineup prior to the filing of a formal charge, but prosecution may not be delayed while a suspect is in custody merely for the purpose of holding a lineup without counsel. State v. Taylor, 60 W (2d) 506, 210 NW (2d) 873.
Challenge to conviction because of absence of counsel at an informal confrontation when he was identified by the victim, is not sustained. Jones v. State, 63 W (2d) 97, 216 NW (2d) 224.
When conflict arises in dual representation, a defendant must be granted a vacation of sentence and a new hearing, because such a conflict at sentencing per se renders counsel representation ineffective and hence actual prejudice need not be shown. Hall v. State, 63 W (2d) 304, 217 NW (2d) 352.
Defense counsel's omission to cross-examine the state's principal witness at trial did not constitute ineffective representation, since such cross-examination had proved fruitless at the preliminary. Krebs v. State, 64 W (2d) 407, 219 NW (2d) 355.
The legal duty to appoint counsel is upon the judicial system as a matter of the superintending power of the judicial system; where the problem of appointment of counsel for indigent convicted persons for parole and probation revocation proceedings will be recurrent and statewide, such power of appointment will be exercised by the supreme court. State ex rel. Fitas v. Milw. County, 65 W (2d) 130, 221 NW (2d) 902.
Trial judge must unconditionally and unequivocably demonstrate in the record that defendant intelligently, voluntarily and understandingly waived the constitutional right to counsel, whether or not defendant is indigent. Keller v. State, 75 W (2d) 502, 249 NW (2d) 773.
When a state agency seeks to enforce its orders through the coercion of imprisonment for contempt, the full constitutional right to counsel arises. Ferris v. State ex rel. Maass, 75 W (2d) 542, 249 NW (2d) 789.
One charged with a crime carrying a penalty of incarceration has full constitutional right to counsel, regardless of whether incarceration is ordered. State ex rel. Winnie v. Harris, 75 W (2d) 547, 249 NW (2d) 791.
Where defendant claimed to understand Miranda rights but agreed to talk to police without counsel because of stated inability to afford a lawyer, further questioning by police was improper and resulting confession was inadmissible. Micale v. State, 76 W (2d) 370, 251 NW (2d) 458.
Mere fact that attorney represents 2 defendants charged in same crime is not sufficient evidence of inadequate representation. Defendant has burden of showing by clear and convincing evidence that an actual and operative conflict existed. Harrison v. State, 78 W (2d) 189, 254 NW (2d) 220.
Defendant has no right to be actively represented in courtroom both by self and by counsel. Moore v. State, 83 W (2d) 285, 265 NW (2d) 540 (1978).
Test to determine if denial of continuance acted to deny defendant either due process or effective right of counsel discussed. State v. Wollman, 86 W (2d) 459, 273 NW (2d) 225 (1979).
Right to counsel does not extend to non-lawyer representatives. State v. Kasuboski, 87 W (2d) 407, 275 NW (2d) 101 (Ct. App. 1978).
Withdrawal of guilty plea on grounds of ineffective representation by trial counsel discussed. State v. Rock, 92 W (2d) 554, 285 NW (2d) 739 (1979).
Defendant's request on morning of trial to represent self was properly denied as untimely. Hamiel v. State, 92 W (2d) 656, 285 NW (2d) 639 (1979).
Where suspect undergoing custodial interrogation requests counsel, prior to reinterrogation, the 5 factors under Michigan v. Mosley, 423 US 96 (1975) must be present and 1) suspect must be given chance to obtain counsel, or 2) police must take reasonable steps to obtain counsel and inform suspect as to steps taken. Wentela v. State, 95 W (2d) 283, 290 NW (2d) 312 (1980).
Trial court did not err in refusing defendant's request on 2nd day of trial to withdraw waiver of right to counsel. Self-representation discussed. Pickens v. State, 96 W (2d) 549, 292 NW (2d) 601 (1980).
Trial courts must conduct inquiry whenever same attorney or law firm represents co-defendants. State v. Kaye, 106 W (2d) 1, 315 NW (2d) 337 (1982).
Right to counsel did not preclude incarceration for second conviction for operating while intoxicated, although accused was not represented by counsel in proceedings leading to first conviction, since first offense was mere civil forfeiture case. State v. Novak, 107 W (2d) 31, 318 NW (2d) 364 (1982).
Effective assistance of counsel discussed. State v. Fencl, 109 W (2d) 224, 325 NW (2d) 703 (1982).
Counsel was ineffective for failure to raise heat-of-passion defense in murder case where wife who had been maltreated during 23-year marriage intentionally killed husband while he lay sleeping. State v. Felton, 110 W (2d) 485, 329 NW (2d) 161 (1983).
Defendant's uncorroborated allegations will not support claim of ineffective representation where counsel is unavailable to rebut claim of ineffectiveness. State v. Lukasik, 115 W (2d) 134, 340 NW (2d) 62 (Ct. App. 1983).
Effective assistance of counsel was denied where defense attorney did not properly inform client of personal right to accept plea offer. State v. Ludwig, 124 W (2d) 600, 369 NW (2d) 722 (1985).
Effective assistance of counsel discussed. State v. Pitsch, 124 W (2d) 628, 369 NW (2d) 711 (1985).
When trial court fails to make adequate inquiry into defendant's last-minute request to replace attorney, right to counsel is adequately protected by retrospective hearing at which defendant may present own testimony. State v. Lomax, 146 W (2d) 356, 432 NW (2d) 89 (1988).
Discussion of fifth and sixth amendment right to counsel and Edwards v. Arizona. State v. McNeil, 155 W (2d) 24, 454 NW (2d) 742 (1990).
Defense counsel's absence at return of jury verdict without defendant's consent and failure to poll jury are grounds for automatic reversal. State v. Behnke, 155 W (2d) 796, 456 NW (2d) 610 (1990).
Preliminary hearing to determine probable cause for detention pending further proceedings is not "critical stage" in prosecution requiring appointed counsel. Gerstein v. Pugh, 420 US 103.
State may not force lawyer upon defendant who intelligently insists upon conducting own defense. Faretta v. California, 422 US 806.
Right to counsel includes right to make closing summary of evidence to trier of fact. Herring v. New York, 422 US 853.
Right to counsel includes right to consult with attorney during trial recess. Geders v. United States, 425 US 80.
Prisoners facing disciplinary charges which also constitute crimes have no right to counsel. Baxter v. Palmigiano, 425 US 308.
Where defendant's right to counsel was violated by corporeal identification conducted in court without counsel, prosecution could not introduce identification evidence even though identification had independent source. Moore v. Illinois, 434 US 220 (1977).
Right to counsel was not violated where permissible jury instruction, intended for defendant's benefit, was given over defense counsel's objections. Lakeside v. Oregon, 435 US 333 (1978).
Whenever trial court improperly requires joint representation over timely objection, reversal is automatic. Holloway v. Arkansas, 435 US 475 (1978).
Indigent is not entitled to appointed counsel when charged with offense for which imprisonment is authorized but not imposed. Scott v. Illinois, 440 US 367 (1979).
Uncounseled misdemeanor conviction is valid if no incarceration results, but conviction may not be used under enhanced penalty statute to convert subsequent misdemeanor into felony with incarceration. Baldasar v. Illinois, 446 US 222 (1980).
In order to demonstrate violation of right to counsel, defendant must establish that an actual conflict of interest adversely affected counsel's performance. Cuyler v. Sullivan, 446 US 335 (1980).
Government violated defendant's right to counsel by placing paid informant in same cell who deliberately elicited incriminating statements. United States v. Henry, 447 US 264 (1980).
Where right to counsel was infringed but no prejudice to defendant was shown, court erred in dismissing indictment. United States v. Morrison, 449 US 361 (1981).
Since criminal defendant has no constitutional right to counsel to pursue discretionary state appeal, defendant could not be deprived of effective counsel by lawyer's failure to file timely application for certiorari. Wainwright v. Torna, 455 US 586 (1982).
Right to counsel does not guarantee "meaningful attorney-client relationship". Morris v. Slappy, 461 US 1 (1983).
Counsel appealing conviction need not present every nonfrivolous issue requested by defendant. Jones v. Barnes, 463 US 745 (1983).
Without surrounding circumstances making it unlikely defendant received effective assistance of counsel, claim of ineffective assistance must be supported by demonstrating specific errors made by trial counsel. U.S. v. Cronic, 466 US 648 (1984).
To support claim of ineffective assistance of counsel, defendant must show probability, sufficient to undermine confidence in outcome, that but for counsel's unprofessional errors result of proceeding would have been different. Strickland v. Washington, 466 US 668 (1984).
Indigent inmates held in administrative segregation during investigation of prison murder were not entitled to counsel prior to initiation of adversary judicial proceedings against them. U.S. v. Gouveia, 467 US 180 (1984).
Accused's postrequest responses to further interrogation may not be used to cast retrospective doubt on clarity of initial request for counsel. Smith v. Illinois, 469 US 91 (1984).
Due process guarantees criminal defendant the effective assistance of counsel on first appeal as of right. Evitts v. Lucey, 469 US 387 (1985).
Right to assistance of counsel wasn't violated when attorney refused to cooperate with defendant in presenting perjured testimony at trial. Nix v. Whiteside, 475 US 157 (1986).
If police initiate interrogation after defendant's assertion, at arraignment or similar proceeding, of right to counsel, any waiver of defendant's right to counsel for that police-initiated interrogation is invalid. Michigan v. Jackson, 475 US 625 (1986).
See note to 974.06, citing Pennsylvania v. Finley, 481 US 551 (1987).
Though trial court must recognize presumption that defendant is entitled to counsel of choice, presumption is overcome by actual conflict and serious potential for actual conflict. Wheat v. United States, 486 US 153 (1988).
Police may not interrogate suspect held in custody after suspect has previously requested counsel even when interrogation relates to offense different from that for which suspect requested counsel. Arizona v. Roberson, 486 US 675 (1988).
Right to counsel is not violated by court's instruction to defendant that he not confer with his attorney during fifteen-minute recess between defendant's direct and cross examination. Perry v. Leeke, 488 US , 102 LEd 2d 624 (1989).
Right to counsel; repayment of cost of court-appointed counsel as a condition of probation. 56 MLR 551.
JURY TRIAL AND JUROR QUALIFICATIONS
A resident of Menominee county may properly be tried by a jury drawn from the Shawano-Menominee district. Article IV, sec. 23, is not violated by using district-based jury lists. Pamanet v. State, 49 W (2d) 501, 182 NW (2d) 459.
Where 2 alternate jurors in a murder trial made remarks critical of court procedures and the defense attorney, but were removed from the court prior to the time the case was submitted to the jury, there must be a showing of probable prejudice before a mistrial is ordered. Shelton v. State, 50 W (2d) 43, 183 NW (2d) 87.
Exclusion of young persons, students and teachers from a jury list discussed. If a challenge establishes discrimination, the jury list is invalid and defendant need not show prejudice. Brown v. State, 58 W (2d) 158, 205 NW (2d) 566.
Rules as to proving discrimination in compiling jury list and burden of proof discussed. Wilson v. State, 59 W (2d) 269, 208 NW (2d) 134.
Jurors are not necessarily prejudiced by reason of having sat as jurors at the same term on similar cases where the state's witnesses were the same, but it is better not to use the same jurors. State v. Boutch, 60 W (2d) 397, 210 NW (2d) 751.
The absence of persons of defendant's race on the jury panel is not ipso facto evidence of prejudice. Jones v. State, 66 W (2d) 105, 223 NW (2d) 889.
Defendant, having been found competent to stand trial, must necessarily have possessed the intellectual capacity to waive right to jury trial. Norwood v. State, 74 W (2d) 343, 246 NW (2d) 801.
Excusing Native Americans from jury without individual examination denied defendant Native American a trial by impartial jury. State v. Chosa, 108 W (2d) 392, 321 NW (2d) 280 (1982).
Where accused refused to participate in trial, court erred by failing to inform accused of right to be present at trial, to waive that right, and to reclaim it at any time. State v. Haynes, 118 W (2d) 21, 345 NW (2d) 892 (Ct. App. 1984).
Mandatory closure of hearing solely at request of complaining witness over objection of defendant violates right to public trial. Stevens v. Manitowoc Cir. Ct., 141 W (2d) 239, 414 NW (2d) 832 (1987).
Waiver of right to jury trial is effective if defendant understands basic purpose and function of jury trial; trial courts are prospectively ordered to advise defendants of unanimity requirement before accepting waiver. State v. Resio, 148 W (2d) 687, 436 NW (2d) 603 (1989).
In nonsummary criminal contempt proceedings, alleged contemnor has right to jury trial if sentences imposed aggregate more than 6 months. Codispoti v. Pennsylvania, 418 US 506.
Court erred by communicating with jury and agreeing to accept guilty verdict "with extreme mercy" without notifying defense counsel. Rogers v. United States, 422 US 35.
Missouri law which granted women exemption from jury duty on request, resulting in low representation of women on venires, violated "fair cross section" requirement of Sixth Amendment. Duren v. Missouri, 439 US 357 (1979).
Where community sentiment against accused had softened by time of trial 4 years after heinous crime, trial court did not commit "manifest error" in finding jury as a whole was impartial. Patton v. Yount, 467 US 1025 (1984).
The "fair cross section" element to trial by jury right does not provide constitutional basis for challenge to prosecution's peremptory striking of jurors on basis of race. Holland v. Illinois, 493 US , 107 LEd 2d 905 (1990).
Statements taken in violation of Michigan v. Jackson, 475 US 625 (1986), involving statements initiated by law enforcement and in absence of counsel, are admissible to impeach defendant's testimony at trial. Michigan v. Harvey, 494 US , 108 LEd 2d 293 (1990).
Unanimous verdict not constitutionally required in state criminal cases. Johnson, 1973 WLR 926.
SPEEDY TRIAL
A defendant must demand a trial before requesting dismissal for lack of a speedy trial. Where the delay was caused by numerous proceedings in federal court, dismissal will be denied in the absence of any showing of prejudice. State v. Kwitek, 53 W (2d) 563, 193 NW (2d) 682.
A delay of 5 weeks because witnesses were hospitalized, where defendant was out on bail, does not amount to a failure of speedy trial. Taylor v. State, 55 W (2d) 168, 197 NW (2d) 805.
Failure to demand speedy trial is weighed less heavily against defendant unrepresented by counsel. Because defendant believed charge had been dropped it could not be said that a speedier trial would have prevented anxiety and concern about pending charges. Hipp v. State, 75 W (2d) 621, 250 NW (2d) 299.
Speedy trial provisions of constitution were designed to prevent oppressive pretrial incarceration, anxiety and concern by accused, impairment of defense and elimination of possibility that concurrent sentences be imposed. Green v. State, 75 W (2d) 631, 250 NW (2d) 305.
The controlling case concerning the right to a speedy trial is Barker v. Wingo, 407 US 514 (1972). Fifteen month delay held not prejudicial under facts of case. Scarbrough v. State, 76 W (2d) 87, 250 NW (2d) 354.
See note to 971.10, citing State v. Mullis, 81 W (2d) 454, 260 NW (2d) 696.
Speedy trial right attaches when complaint and warrant are issued; pretrial determination that right has been violated may be made only when evidence shows extraordinary circumstances justifying dismissal with prejudice. State v. Lemay, 155 W (2d) 202, 455 NW (2d) 233 (1990).
Delay between arrest and indictment may deny speedy trial without showing of actual prejudice. Dillingham v. United States, 423 US 64.
Defendant may not, before trial, appeal denial of motion to dismiss based on right to speedy trial. United States v. MacDonald, 435 US 850 (1978).
No right to speedy trial arises until charges are pending. United States v. MacDonald, 456 US 1 (1982).
