Under Flores-Ortega, 528 U.S. 470 (2000), when an attorney’s deficient performance costs a defendant an appeal that the defendant would have otherwise pursued, prejudice to the defendant should be presumed with no further showing from the defendant of the merits of the defendant’s underlying claims. That presumption of prejudice applies regardless of whether the defendant has signed an appeal waiver. Garza v. Idaho, 586 U.S. ___, 139 S. Ct. 738, 203 L. Ed. 2d 77 (2019).

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).

In Imani, 826 F.3d 939 (2016), and Tatum, 847 F.3d 459 (2017), the 7th Circuit Court of Appeals held that the Wisconsin courts violated the clearly established rule of Faretta, 422 U.S. 806 (1975), that a court may not force a lawyer upon a defendant based on a perceived lack of education, experience, or legal knowhow. While a defendant seeking to waive the defendant’s 6th amendment right to counsel must do so knowingly and intelligently and so must be mentally competent to make that decision, the defendant’s technical legal knowledge is irrelevant to a court’s assessment of the defendant’s competency. The focus of the inquiry is on a defendant’s mental competency. Washington v. Boughton, 884 F.3d 692 (2018).

Before concluding that a defendant has a right to counsel at a critical stage, a court must also find that the criminal prosecution has commenced. The 6th amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against the accused. In this case, the defendant was arrested without a warrant and detained, and the defendant remained in jail when the police went to the county courthouse two days later to make their case. The defendant’s 6th amendment right to counsel attached when the court commissioner found probable cause, set bail, and executed a form that accused the defendant of a crime. It was of no 6th amendment consequence that the defendant never appeared in court during the probable-cause proceeding. Garcia v. Hepp, 65 F.4th 945 (2023).

Right to Counsel: Repayment of Cost of Court-Appointed Counsel as a Condition of Probation. Strattner. 56 MLR 551 (1973).

How Do You Get a Lawyer Around Here? The Ambiguous Invocation of a Defendant’s Right to Counsel Under Miranda v. Arizona. Finger. 79 MLR 1041 (1996).

The Interrogations of Brendan Dassey. Gallini. 102 MLR 777 (2019).

How Courts in Criminal Cases Respond to Childhood Trauma. Denno. 103 MLR 301 (2019).

McNeil v. Wisconsin: Blurring a Bright Line on Custodial Interrogation. Johnson. 1992 WLR 1643.

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 (1970).

A resident of Menominee County may properly be tried by a jury drawn from the Shawano-Menominee district. Article IV, section 23, is not violated by using district-based jury lists. Pamanet v. State, 49 Wis. 2d 501, 182 N.W.2d 459 (1971).

When two 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 (1971).

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 (1971).

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 the defendant’s guilt, when 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 (1971).

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 (1972).

Discussing the exclusion of young persons, students, and teachers from a jury list. 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 (1973).

Discussing rules for proving discrimination in compiling a jury list and the burden of proof. Wilson v. State, 59 Wis. 2d 269, 208 N.W.2d 134 (1973).

Jurors are not necessarily prejudiced by reason of having sat as jurors at the same term on similar cases when the state’s witnesses are the same, but it is better not to use the same jurors. State v. Boutch, 60 Wis. 2d 397, 210 N.W.2d 751 (1973).

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 (1974).

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 (1976).

A jury must unanimously find participation in a crime, but the jury need not unanimously agree whether a defendant: 1) directly committed the 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).

Discussing unanimity of criminal verdicts. 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).

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).