Aug. 29, 2024 – Whether the right to counsel had attached at a probable cause hearing wasn’t a settled matter of law, meaning an attorney wasn’t deficient when he failed to object to a lineup identification that occurred without counsel present, the Wisconsin Court of Appeals (District I) has ruled in State v. Robinson​, 2020AP1728 (Aug. 6, 2024).

On Dec. 18, 2017, a man walked into a U.S. Bank branch on West Capitol Drive in Milwaukee and slipped a note to S.D., a teller. The note demanded money and said the man had a gun.

S.D. gave the man all the money from her till, about $1900. The man turned and walked out of the bank.

S.D. later gave the police a description of the bank robber.

The police distributed still images taken from surveillance camera footage to Milwaukee media organizations.

A woman who wi​shed to remain anonymous called the police and said she recognized the man in the images as Percy Robinson.

Two other people called the police seeing the still images. Each identified a man other than Robinson as the robber.

On the day after the robbery, the police arrested Robinson.

Picked Out of a Lineup

On Dec. 21, 2017, a Milwaukee County Court Commissioner completed a CR-215 form.

The completed form indicated that the court commissioner had: 1) reviewed the probable cause statement from the arresting officer; 2) found there was probable cause to conclude that Robinson had committed the robbery; and 3) set bail at $35,000.

On Dec. 22, 2017, the police conducted an identification lineup that included Robinson. S.D. picked Robinson out of the lineup. Robinson did not have the benefit of counsel during the lineup.

The next day, the Milwaukee County District Attorney filed a complaint charging Robinson with robbery of a financial institution.

Post-conviction Relief

A jury convicted Robinson. The Milwaukee County Circuit Court sentenced Robinson to five years in prison and five years’ extended supervision.

Robinson filed for post-conviction relief and claimed his lawyer had provided him with ineffective assistance of counsel. The circuit court denied the motion.

Robinson appealed.

Right to Counsel

On appeal, Robinson argued that his right to counsel under the Sixth Amendment attached during the probable cause determination and bail-setting procedure and his counsel had provided him ineffective assistance of counsel.

Writing for a three-judge panel, Chief Judge Maxine White began her opinion by explaining that U.S. Supreme Court has held that a defendant’s right to counsel attaches when the government has committed itself to prosecute the defendant – including by filing an accusation with a judicial officer.

White pointed out that in Rothgery v. Gillespie County, 554 U.S. 191 (2008), the Supreme Court held that a Texas state procedure that required a judicial officer to make a probable cause determination and set bail triggered the attachment of the right to counsel, even though prosecutors didn’t participate in the procedure.

The State argued that Rothgery shouldn’t apply because unlike the Texas procedure, Robinson wasn’t present during the CR-215 process conducted by the court commissioner.

But the panel disagreed.

“The lack of an in-person court hearing does not negate that the CR-215 process was the first formal proceeding against Robinson in this case,” White wrote.

“The CR-215 process shifted Robinson from a person under investigation to the ‘accused’ in the criminal justice system.”

Ineffective Assistance of Counsel

Robinson argued that his attorney had provided ineffective assistance of counsel by:

• failing to move to suppress S.D.’s identification at the lineup because it occurred after the right to counsel had attached;
• failure to introduce evidence that two other bank employees didn’t identify him during the lineup; and
• failure to introduce evidence that tipsters had named two other men as the robber.

The panel concluded that while Robinson had shown that he’d been prejudiced by counsel’s failure to suppress S.D.’s identification, he hadn’t shown that his counsel’s failure was deficient.

Judge White explained that whether the right to counsel attached at the beginning of the CR-215 process was a matter of unsettled law at the time of Robinson’s intake.

White pointed out that while several judges in the U.S. District Court for the Eastern District of Wisconsin had concluded that the CR-215 process marks that attachment of the right to counsel, the Wisconsin Court of Appeals didn’t take up that issue until April 2018 – sixth months after Robinson’s arrest.

“Thus, in 2017, when trial counsel was formulating trial strategy, we cannot conclude that the matter was so settled that counsel would be deficient for failing to pursue,” Judge White wrote.

Other Bank Employees

The panel concluded that the failure of Robinson’s attorney to introduce the testimony of the other two bank employees who didn’t identify him at the lineup was neither prejudicial nor deficient.

White pointed out that neither of the employees was as close in proximity to the robber as S.D.

“Robinson does not allege that either [of the employees] were confident that they had seen the robber well enough to identify him, such that their failures to identify a suspect in the live lineup would infer that the robber was not present,” Judge White wrote.

Alternate Identifications

Regarding counsel’s failure to introduce the tipster identifications of other men as the robber, the circuit court concluded that Robinson was using this claim in effect as a third-party perpetrator defense, which is barred under State v. Denny, 120 Wis. 2d 614, 357 N.W. 2d 12 (Ct. App. 1984).

The Court of Appeals concluded that Robinson failed to show that counsel’s failure to introduce the two alternate identifications had prejudiced him.

“Combined with S.D.’s strong confidence in her identification of Robinson as the robber, it is unlikely that the jury’s verdict would be different if the other two identifications had been presented,” White wrote.