Wisconsin Lawyer
Vol. 84, No. 12, December 2011

• Appellate Procedure
• Criminal Procedure

Appellate Procedure

State v. Nielsen, 2011 WI 94 (filed 1 Nov. 2011)

In this case, the court of appeals summarily imposed a $150 sanction on the Office of the State Public Defender after finding that the appendix to the assistant state public defender’s appellate brief was deficient and the attorney’s certification of the appendix was “false.” The state public defender sought review of this order before the supreme court.

In a unanimous decision authored by Chief Justice Abrahamson, the supreme court agreed with the court of appeals about the importance of the appendix and the value of the required certification (that the appendix meets the content specifications provided for in Wis. Stat. section 809.19(2)) (see ¶ 16). However, as to the imposition of sanctions, the court stated as follows:

“We suggest that hereafter when the court of appeals is considering imposing a sanction on an attorney for filing a brief with a deficient appendix, an order to show cause should be issued directing counsel to explain why a violation of Wis. Stat. § (Rule) 809.19(2)(a) and (b) should not be found and why the attorney should not pay a stated amount of money to the clerk of the court of appeals as a sanction for failing to include in the appendix portions of the record that may have been essential to an understanding of the issue in the case and for filing a false certification. We also suggest that the order to show cause should state that alternatively, the attorney may pay the amount of money stated in the order within 30 days of the date of the order without showing cause why the attorney should not be relieved of this obligation” (¶ 33).

The supreme court concluded that this order-to-show-cause procedure has several benefits. Among them, it “would give attorneys the opportunity to explain their conduct before the court of appeals reaches a final decision about any violation of the rules governing the content of an appendix. An understanding of the attorney’s position will better enable the court of appeals to gauge whether a violation has occurred and whether a sanction should be imposed” (¶ 34).

Criminal Procedure

Ineffective Assistance of Counsel – Prejudice

State v. Domke, 2011 WI 95 (filed 1 Nov. 2011)

A jury convicted Domke of sexually assaulting his 10-year-old stepdaughter. The circuit court denied Domke’s motion for a new trial based on ineffective assistance of counsel. In an unpublished decision, the court of appeals reversed, finding that Domke had established “cumulative prejudice” based on three mistakes made by his trial counsel.

In a unanimous opinion authored by Justice Crooks, the supreme court reversed the court of appeals. While agreeing that Domke’s trial counsel was deficient, the supreme court held that Domke was not sufficiently prejudiced to warrant receiving a new trial. The trial attorney’s mistakes were manifold. First, he failed to object to inadmissible hearsay by a counselor who related the victim’s version of the multiple sexual assaults. Second, trial counsel erred by twice asking the counselor about whether the victim’s allegations arose from a “bad dream.” The supreme court noted that the attorney had no reason to believe that the counselor would concede the point. Although one question on the topic may have been reasonable, asking twice was not (see ¶ 49). Third, trial counsel erred by calling the victim’s mother – who is also the defendant’s wife – as a witness without really knowing how she felt about the case. Although the mother had earlier told police officers that she did not believe her daughter, at trial she testified that she by then believed her daughter “100 percent” (¶ 16).

But despite defense counsel’s lapses, the totality of the circumstances did not warrant a new trial. The state had a “very strong case” even excluding the helpful evidence unwittingly provided by the defense (see ¶ 61). There was, in short, “no reasonable probability” that the result would have been different had defense counsel not made these mistakes.

Wisconsin Lawyer