Whenever a defendant seeks to proceed pro se, a colloquy to determine whether the waiver is knowing and voluntary is required. When there is no colloquy and post-conviction relief is requested, the court must hold an evidentiary hearing on the waiver and the state must prove by clear and convincing evidence that the waiver was knowingly made for the conviction to stand. State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), 95-1938.
There is a higher standard for determining competency to represent oneself than for competency to stand trial. The standard is based on the defendant's education, literacy, fluency in English, and any disability that may affect the ability to communicate a defense. When there is no pretrial finding of competency to proceed and post-conviction relief is sought, the court must determine if it can make a meaningful nunc pro tunc inquiry. If it cannot, or it finds that it can but the defendant was not competent, a new trial is required. State v. Klessig, 211 Wis. 2d 194, 564 N.W.2d 716 (1997), 95-1938.
It was ineffective assistance of counsel to advise a defendant to go to trial and lie rather than agree to a plea agreement. Despite the defendant's participation in fraud on the court, the defendant was entitled to vacation of his sentence and a return to pretrial status, although offering the prior proposed plea agreement was not required. State v. Fritz, 212 Wis. 2d 284, 569 N.W.2d 48 (Ct. App. 1997), 96-1905.
When a defendant proves ineffective assistance of counsel occurred at the pretrial stage, the defendant must be granted a new trial. State v. Lentowski, 212 Wis. 2d 849, 569 N.W.2d 758 (Ct. App. 1997), 96-2597.
An in-court identification subsequent to a lineup in violation of an accused's right to counsel is admissible only if the state carries the burden of showing that the in-court identification was based on observations of the suspect other than the lineup. State v. McMorris, 213 Wis. 2d 156, 570 N.W.2d 384 (1997), 95-2052.
A postconviction hearing pursuant to State v. Machner, 92 Wis. 2d 797, to preserve the testimony of trial counsel is required in every ineffective assistance of counsel case. State v. Curtis, 218 Wis. 2d 550, 582 N.W.2d 409 (Ct. App. 1998), 96-2884.
Having disputed relevant portions of the presentence investigation at the sentencing hearing, it was trial counsel's duty to see that the disputes were fully resolved by a proper hearing. Failure to do so constituted ineffective assistance of counsel. State v. Anderson, 222 Wis. 2d 403, 588 N.W.2d 75 (Ct. App. 1998), 97-3070.
Whether a defendant's motion for substitution of counsel, with an accompanying request for a continuation, should be granted depends on the balancing of several interests. State v. Wanta, 224 Wis. 2d 679, 592 N.W.2d 645 (Ct. App. 1999), 98-0318.
A defendant's prejudicial deprivation of appellate counsel, be it the fault of the attorney or the appellate court, is properly remedied by a petition for habeas corpus in the supreme court. State ex rel. Fuentes v. Court of Appeals, 225 Wis. 2d 446, 593 N.W.2d 48 (1999), 98-1534.
A defendant who alleges counsel was ineffective by failing to take certain steps must show with specificity what the action, if taken, would have revealed and how the action would have affected the outcome. State v. Byrge, 225 Wis. 2d 702, 594 N.W.2d 388 (Ct. App. 1999), 97-3217.
When defense counsel has appeared for and represented the state in the same case in which he or she later represents the defendant and no objection was made at trial, to prove a violation of the right to effective counsel, the defendant must show that counsel converted a potential conflict of interest into an actual conflict by knowingly failing to disclose the attorney's former prosecution of the defendant or representing the defendant in a manner that adversely affected the defendant's interests. State v. Love, 227 Wis. 2d 60, 594 N.W.2d 806 (1999), 97-2336. See also State v. Kalk, 2000 WI App 62, 234 Wis. 2d 98, 608 N.W.2d 98, 99-1164.
There is a distinction between the consequences on appeal of a trial court error and the consequences of that same error when it is raised in an ineffective-assistance-of-counsel context. The fact that a preserved error could lead to automatic reversal does not mean the same result will be reached when the error was waived. State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999), 98-0273.
The defendant's assertion of the 6th amendment right to counsel was evident during interrogation when he asked whether the police officer thought he should have an attorney and if he could call a person known to the officer to be a criminal defense lawyer. State v. Hornung, 229 Wis. 2d 469, 600 N.W.2d 264 (Ct. App. 1999), 99-0300.
Inherent in a defendant's choice to proceed pro se is the risk, which the defendant knowingly assumes, that a defense not known to him or her will not be presented during trial. State v. Clutter, 230 Wis. 2d 472, 602 N.W.2d 324 (Ct. App. 1999), 99-0705.
A defendant has a substantive due process right to enforce a plea agreement after the plea has been entered. Defense counsel's failure to inform defendant of that right or to pursue enforcement of the agreement constituted ineffective assistance of counsel. State v. Scott, 230 Wis. 2d 643, 602 N.W.2d 926 (Ct. App. 1999), 98-2109.
The lack of legal expertise is an impermissible basis on which to deny a request to represent oneself. State v. Oswald, 2000 WI App 3, 232 Wis. 2d 103, 606 N.W.2d. 238, 97-1219.
On administrative appeal a probationer may be assisted by counsel, but there is no right to appointed counsel or effective assistance of counsel. State ex rel. Mentek v. Schwarz, 2000 WI App 96, 235 Wis. 2d 143, 612 N.W.2d 746, 99-0182. See also Mentek v. Schwarz, 2001 WI 32, 242 Wis. 2d 94, 624 N.W.2d 150. 99-0182.
When a person who has been formally charged with a crime has retained counsel to represent him or her on that charge and the the attorney has informed police of the representation and that they are not to question the accused, the accused need not specifically "invoke" the right to counsel. In that case, police must assume that the accused does not intend to waive the right to counsel and may not question the accused in the absence of the attorney. State v. Dagnall, 2000 WI 82, 236 Wis. 2d 339, 612 N.W.2d 680, 98-2746.
A defendant's unusual conduct or beliefs do not necessarily establish incompetence for purposes of self-representation. Although a defendant may exhibit beliefs that are out of the ordinary and make references that may antagonize jurors, that does not reflect a mental defect that prevents self-representation. State v. Ruszkiewicz, 2000 WI App 125, 237 Wis. 2d 441, 613 N.W.2d 893, 99-1198.
Except when charges have been filed in a closely-related case derived from the same factual predicate, the 6th amendment right to counsel is offense specific and attaches to a particular offense only after adversary proceedings are commenced. The 6th amendment does not not prohibit the interrogation of a defendant in regard to a murder in the absence of counsel retained in a bail jumping case. State v. Badker, 2001 WI App 27, 240 Wis. 2d 460, 623 N.W.2d 142, 99-2943.
In making its separate determination of whether a defendant is indigent for purposes of court-appointed counsel, the trial court should consider federal poverty guidelines. If a defendant has no assets and an income well below the poverty level, the trial court should set forth why it determined that the defendant could afford counsel. State v. Nieves-Gonzales, 2001 WI App. 90, 242 Wis. 2d 782, 625 N.W.2d 913, 00-2138.
An indigent sexually violent person is constitutionally entitled to assistance of counsel in bringing a first appeal as of right from a denial of his or her petition for supervised release. State ex rel. Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, 99-3354.
There was ineffective assistance of counsel when the notice of appeal for the denial of a ch. 980 petition for supervised release was filed one day late in circuit court. Under the U.S. Supreme Court's decisions in Douglas v. California, 372 U.S. 353 (1963) and Anders v. California, 386 U.S. 738 (1967) the court of appeals could not conduct an independent review for error when the individual lacked requested representation. State ex rel. Seibert v. Macht, 2001 WI 67, 244 Wis. 2d 378, 627 N.W.2d 881, 99-3354.
Absent a showing of prejudice to their defense, misdemeanants were not denied effective counsel when their attorneys failed to object to the 6-person jury statute that was found unconstitutional in State v. Hansford, 219 Wis. 2d 226, 580 N.W.2d 171, (1998), 97-0885. State v. Franklin, 2001 WI 104, 245 Wis. 2d 582, 629 N.W.2d 289, 99-0743.
A reviewing court is not required to view defense counsel's subjective testimony as dispositive of an ineffective assistance claim. The testimony is simply evidence to be considered along with other evidence in the record that a court will examine in assessing counsel's overall performance. State v. Kimbrough, 2001 WI App 138, 246 Wis. 2d 648, 630 N.W.2d 752, 00-2133.
Absent waiver, a trial court's communication with a deliberating jury in the absence of the defendant and defense counsel violates the right to be present at trial and to have counsel at every stage that the defendant may need aid with legal problems. A violation is subject to harmless error analysis. State v. Koller, 2001 WI App 253, 248 Wis. 2d 259, 635 N.W.2d 838, 99-3084.
Forfeiture of the right to counsel cannot occur simply because the effect of the defendant's conduct is to frustrate the orderly and efficient progression of the case. The defendant must also have the purpose of causing that effect. Forfeiture, by action or conduct, is subject to the same rules as when a defendant informs the court that he or she wishes to proceed without counsel, and the court must determine whether the defendant is competent to proceed without an attorney. State v. Coleman, 2002 WI App 100, 253 Wis. 2d 693, 644 N.W.2d 283, 01-2201.
For a knowing and voluntary waiver of counsel on direct appeal, the defendant must be aware of: 1) the rights to an appeal, to the assistance of counsel for the appeal, and to opt for a no-merit report; 2) the dangers and disadvantages of proceeding pro se; and 3) the possibility that if appointed counsel is permitted to withdraw, successor counsel may not be appointed. The necessary colloquy may be accomplished by written communications with the defendant, initiated either by the court or by counsel seeking to withdraw. State v. Thornton, 2002 WI App 294, 259 Wis. 2d 157, 656 N.W.2d 45, 01-0726.
Opening a letter marked "Legal Papers" outside of an inmate's presence may have violated an administrative rule, but it was not a violation of the 6th amendment right to counsel. For the right to counsel to have an arguable application, there must, as a threshold matter, be some evidence that the documents in the envelope were communications with an attorney. State v. Steffes, 2003 WI App 55, 260 Wis. 2d 841, 659 N.W.2d 445, 02-1300.
When in closing argument counsel concedes guilt on a lesser count in a multiple-count case, in light of overwhelming evidence on that count and in an effort to gain credibility and win acquittal on the other charges, the concession is a reasonable tactical decision and counsel is not deemed to have been constitutionally ineffective by admitting a client's guilt contrary to the client's plea of not guilty. State v. Gordon, 2003 WI 69, 262 Wis. 2d 380, 663 N.W.2d 765, 01-1679.
When a court finds numerous deficiencies in a counsel's performance, it need not rely on the prejudicial effect of a single deficiency if, taken together, the deficiencies establish cumulative prejudice. Whether the aggregated errors by counsel will be enough to meet the Strickland prejudice requirement depends upon the totality of the circumstances at trial, not the totality of the representation provided to the defendant. State v. Thiel, 2003 WI 111, 264 Wis. 2d 571, 665 N.W.2d 305, 01-1589.
Under Dean a trial court is only obligated to advise a defendant of the right to counsel. The trial court is not required to conduct a colloquy that includes specific advice to a defendant that the right to appointed counsel is broader than the right to counsel provided by the state public defender and includes the right to counsel appointed by the court and paid for by the county. State v. Drexler, 2003 WI App 169, 266 Wis. 2d 438, 669 N.W.2d 182, 02-1313.
No law requires that a motion to withdraw be filed any time an attorney appointed by the public defender terminates his or her postconviction/appellate representation of a defendant. Counsel for the defendant did not render ineffective assistance by closing his file without first obtaining court permission to withdraw or otherwise seeking a contemporaneous judicial determination that his client had knowingly waived either the right to appeal or the right to counsel. Ford v. Holm, 2004 WI App 22, 269 Wis. 2d 810, 676 N.W.2d 500, 02-1828.
An attorney may not substitute narrative questioning for the traditional question and answer format unless counsel knows that the client intends to testify falsely. Absent the most extraordinary circumstances, such knowledge must be based on the client's expressed admission of intent to testify untruthfully. While the defendant's admission need not be phrased in magic words, it must be unambiguous and directly made to the attorney. State v. McDowell, 2004 WI 70, 272 Wis. 2d 488, 681 N.W.2d 500, 02-1203.
When a defendant informs counsel of the intention to testify falsely, the attorney's first duty shall be to attempt to dissuade the client from the unlawful course of conduct. The attorney should then consider moving to withdraw from the case. If the motion to withdraw is denied and the defendant insists on committing perjury, counsel should proceed with the narrative form of questioning, advising the defendant beforehand of what that entails and informing opposing counsel and the circuit court of the change of questioning style prior to use of the narrative. State v. McDowell, 2004 WI 70, 272 Wis. 2d 488, 681 N.W.2d 500, 02-1203.
A preliminary hearing to determine probable cause for detention pending further proceedings is not a "critical stage" in a prosecution requiring appointed counsel. Gerstein v. Pugh, 420 U.S. 103.
The state may not force a lawyer upon a defendant who intelligently insists upon conducting his or her own defense. Faretta v. California, 422 U.S. 806.
The right to counsel includes the right to make a closing summary of evidence to the trier of fact. Herring v. New York, 422 U.S. 853.
The right to counsel includes the right to consult with an attorney during a trial recess. Geders v. United States, 425 U.S. 80.
Prisoners facing disciplinary charges that also constitute crimes have no right to counsel at the disciplinary hearing. Baxter v. Palmigiano, 425 U.S. 308.
When the defendant's right to counsel was violated by a corporeal identification conducted in court without counsel, the prosecution could not introduce identification evidence even though the identification had an independent source. Moore v. Illinois, 434 U.S. 220 (1977).
The right to counsel was not violated when a permissible jury instruction, intended for the defendant's benefit, was given over defense counsel's objections. Lakeside v. Oregon, 435 U.S. 333 (1978).
Whenever the trial court improperly requires joint representation over a timely objection, reversal is automatic. Holloway v. Arkansas, 435 U.S. 475 (1978).
An indigent defendant is not entitled to appointed counsel when charged with an offense for which imprisonment is authorized but not imposed. Scott v. Illinois, 440 U.S. 367 (1979).
In order to demonstrate a violation of the right to counsel, the defendant must establish that an actual conflict of interest adversely affected the counsel's performance. Cuyler v. Sullivan, 446 U.S. 335 (1980).
The government violated the defendant's right to counsel by placing a paid informant in the same cell who deliberately elicited incriminating statements. United States v. Henry, 447 U.S. 264 (1980).
When the right to counsel was infringed but no prejudice to the defendant was shown, the court erred in dismissing indictment. United States v. Morrison, 449 U.S. 361 (1981).
Since a criminal defendant has no constitutional right to counsel to pursue a discretionary state appeal, the defendant could not be deprived of effective counsel by counsel's failure to timely file an application for certiorari. Wainwright v. Torna, 455 U.S. 586 (1982).
The right to counsel does not guarantee a "meaningful attorney-client relationship." Morris v. Slappy, 461 U.S. 1 (1983).
Counsel appealing a conviction need not present every nonfrivolous issue requested by the defendant. Jones v. Barnes, 463 U.S. 745 (1983).
Without surrounding circumstances making it unlikely that the defendant received effective assistance of counsel, a claim of ineffective assistance must be supported by demonstrating specific errors made by trial counsel. U.S. v. Cronic, 466 U.S. 648 (1984).
To support a claim of ineffective assistance of counsel, the defendant must show a probability, sufficient to undermine confidence in the outcome, that but for counsel's unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668 (1984).
Indigent inmates held in administrative segregation during the investigation of a prison murder were not entitled to counsel prior to the initiation of adversary judicial proceedings against them. U.S. v. Gouveia, 467 U.S. 180 (1984).
An accused's postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of an initial request for counsel. Smith v. Illinois, 469 U.S. 91 (1984).
Due process guarantees a criminal defendant the effective assistance of counsel on a first appeal as of right. Evitts v. Lucey, 469 U.S. 387 (1985).
The right to assistance of counsel wasn't violated when an attorney refused to cooperate with the defendant in presenting perjured testimony at trial. Nix v. Whiteside, 475 U.S. 157 (1986).
If police initiate interrogation after the defendant's assertion, at an arraignment or similar proceeding, of the right to counsel, any waiver of the defendant's right to counsel for that police-initiated interrogation is invalid. Michigan v. Jackson, 475 U.S. 625 (1986).
Because an individual has no underlying constitutional right to appointed counsel in state collateral postconviction proceedings, the individual may not insist upon implementation of Anders v. California, 386 U.S. 738 (1967), procedures. Pennsylvania v. Finley, 481 U.S. 551 (1987).
Though the trial court must recognize the presumption that a defendant is entitled to his or her counsel of choice, the presumption is overcome by actual conflict and a serious potential for actual conflict. Wheat v. United States, 486 U.S. 153 (1988).
The right to counsel was not violated by the court's instruction to the defendant that he not confer with his attorney during a 15 minute recess between the defendant's direct and cross-examination. Perry v. Leeke, 488 U.S. 272, 102 L. Ed. 2d 624 (1989).
Statements taken in violation of Michigan v. Jackson, 475 U.S. 625 (1986), involving statements initiated by law enforcement officers in the absence of counsel, are admissible to impeach the defendant's testimony at trial. Michigan v. Harvey, 494 U.S. 344, 108 L. Ed. 2d 293 (1990).
The sixth amendment right to counsel is offense specific. An accused's invocation of this right during a judicial proceeding did not constitute an invocation of the right to counsel under Miranda arising from the 5th amendment guarantees against self incrimination in regard to police questioning concerning a separate offense. McNeil v. Wisconsin, 501 U.S. 171, 115 L. Ed. 2d 158 (1991).
An uncounseled misdemeanor conviction, valid because no prison term was imposed, is also valid when used to enhance punishment upon a subsequent conviction. Nichols v. US, 511 U.S. 738, 128 L. Ed. 2d 745 (1994).
To void a conviction due to a 6th amendment violation when a trial court has failed to inquire into a potential conflict of interest that the court knew or should have known of, the defendant must establish that the conflict adversely affected counsel's performance. Failure of the trial court to inquire into the conflict did not reduce the defendant's burden of proof. Mickens v. Taylor, 535 U.S. 162, 152 L. Ed. 2d 291 (2002).
When postconviction counsel failed to assert a claim of ineffective assistance of trial counsel in a postconviction motion under s. 974.02, the defendant's opportunity to argue that claim on direct appeal was foreclosed. The appropriate forum for asserting ineffective assistance of postconviction counsel for failure to raise ineffective assistance of trial counsel was in a collateral motion under s. 974.06. Page v. Frank, 343 F.3d 901 (2003).
Right to counsel; repayment of cost of court-appointed counsel as a condition of probation. 56 MLR 551.
McNeil v. Wisconsin: Blurring a Bright Line on Custodial Interrogation. 1992 WLR 1643.
How do You Get a Lawyer Around Here? The Ambiguous Invocation of a Defendant's Right to Counsel under Miranda v. Arizona? 79 MLR 1041 (1997).
JURY TRIAL AND JUROR QUALIFICATIONS
NOTE: See also the notes to s. 906.06 for decisions relating to overturning verdicts due to juror misconduct.
Contradictory testimony of different state witnesses does not necessarily cancel the testimony and render it unfit as a basis for a conviction. The determination of credibility and the weight to be accorded the testimony is a jury function, and the jury may accept or reject the inconsistent testimony, even under the beyond a reasonable doubt burden of proof. Embry v. State, 46 Wis. 2d 151, 174 N.W.2d 521.
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 Wis. 2d 501, 182 N.W.2d 459.
When 2 alternate jurors in a murder trial made remarks critical of court procedures and the defense attorney, but were removed prior to the time the case was submitted to the jury, a showing of probable prejudice was required for a mistrial to be ordered. Shelton v. State, 50 Wis. 2d 43, 183 N.W.2d 87.
Asking an improper question that is not answered is not grounds for reversal, especially when the trial court instructs the jury to disregard the question and to draw no inferences therefrom. The instruction is presumed to efface any possible prejudice resulting from asking the question. Taylor v. State, 52 Wis. 2d 453, 190 N.W.2d 208.
The trial court did not err in failing to declare a mistrial because of a statement made by the prosecutor in closing argument, challenged as improper because the prosecutor expressed his opinion as to defendant's guilt, where it neither could be said that the statement was based on sources of information outside the record, nor expressed the prosecutor's conviction as to what the evidence established. State v. McGee, 52 Wis. 2d 736, 190 N.W.2d 893.
When the prosecutor stated in opening remarks that the defendant refused to be fingerprinted but failed to introduce testimony to this effect, the error was cured by proper instructions. State v. Tew, 54 Wis. 2d 361, 195 N.W.2d 615.
The exclusion of young persons, students, and teachers from a jury list is discussed. If a challenge establishes discrimination, the jury list is invalid and the defendant need not show prejudice. Brown v. State, 58 Wis. 2d 158, 205 N.W.2d 566.
Rules for proving discrimination in compiling a jury list and the burden of proof are discussed. Wilson v. State, 59 Wis. 2d 269, 208 N.W.2d 134.
Jurors are not necessarily prejudiced by reason of having sat as jurors at the same term on similar cases when the state's witnesses were the same, but it is better not to use the same jurors. State v. Boutch, 60 Wis. 2d 397, 210 N.W.2d 751.
The absence of persons of the defendant's race on the jury panel is not ipso facto evidence of prejudice. Jones v. State, 66 Wis. 2d 105, 223 N.W.2d 889.
A defendant, having been found competent to stand trial, must necessarily have possessed the intellectual capacity to waive the right to a jury trial. Norwood v. State, 74 Wis. 2d 343, 246 N.W.2d 801.
A jury must unanimously find participation in a crime, but the jury need not unanimously agree whether defendant: 1) directly committed crime; 2) aided and abetted its commission; or 3) conspired with another to commit it. Holland v. State, 91 Wis. 2d 134, 280 N.W.2d 288 (1979).
Unanimity of criminal verdicts is discussed. Jackson v. State, 92 Wis. 2d 1, 284 N.W.2d 685 (Ct. App. 1979).
Excusing Native Americans from a jury without individual examination denied the Native American defendant a trial by an impartial jury. State v. Chosa, 108 Wis. 2d 392, 321 N.W.2d 280 (1982).
The verdict was unanimous in a battery case even though the jury was not required to specify whether the battery occurred when the defendant threw an object at the victim or during an ensuing fistfight. State v. Giwosky, 109 Wis. 2d 446, 326 N.W.2d 232 (1982).
The verdict was unanimous in a rape case even though the jury was not required to specify whether the sexual assault was vaginal or oral. State v. Lomagro, 113 Wis. 2d 582, 335 N.W.2d 583 (1983).
When the accused refused to participate in the trial, the court erred by failing to inform the accused of the right to be present at trial, to waive that right, and to reclaim it at any time. State v. Haynes, 118 Wis. 2d 21, 345 N.W.2d 892 (Ct. App. 1984).
Mandatory closure of a hearing solely at the request of the complaining witness over the objection of the defendant violates the right to a public trial. Stevens v. Manitowoc Cir. Ct. 141 Wis. 2d 239, 414 N.W.2d 832 (1987).
A waiver of the right to a jury trial is effective if the defendant understands the basic purpose and function of a jury trial. Trial courts are prospectively ordered to advise defendants of the unanimity requirement before accepting a waiver. State v. Resio, 148 Wis. 2d 687, 436 N.W.2d 603 (1989).