Criminal Procedure — counsel of choice

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — counsel of choice

It was error to disqualify a defendant’s attorney merely because he had acted as translator for his client during police interrogation.

“For disqualification under SCR 20:3.7, the State must show that Attorney Knoeller is a necessary witness to the content of the interview. Here, the record supports no such conclusion. First, the State candidly admitted that for tactical reasons (its concern about a future ineffective assistance of counsel claim by Gonzalez-Villarreal), it was unlikely to use what it considered to be the incriminating statement. Further, the entire interview was recorded; the State and Attorney Knoeller both have a CD of the recording. Where an interview has been recorded, and all parties have a copy of the recording, it is unlikely that a party to the interview is a necessary witness to the content of the interview. Finally, the accuracy of the translation on the CD can be shown by means other than Attorney Knoeller’s testimony. Either party can retain a bilingual Spanish-English speaker to translate/interpret and/or to prepare a transcript of what was said by whom on the recording. Should the translations differ, a jury will weigh the testimony of the translators and come to its own conclusions as to whether Gonzalez-Villarreal made incriminating statements.”

“The circuit court granted the State’s motion to disqualify Attorney Knoeller despite there being no evidence that Knoeller was ‘likely to be a necessary witness.’ See Foy, 206 Wis. 2d at 646 (emphasis added). We conclude, therefore, that the record does not demonstrate that Attorney Knoeller is a ‘necessary witness’ to the contents of the recorded interview, and thus not properly disqualified under SCR 20:3.7.”

Reversed and Remanded.

Recommended for publication in the official reports.

2011AP1259-CR State v. Gonzalez-Villareal

Dist. I, Milwaukee County, Martens, J., Kessler, J.

Attorneys: For Appellant: Knoeller, Michael J., Milwaukee; For Respondent: Loebel, Karen A., Milwaukee; O’Brien, Daniel J., Madison; Lewis, Sara Beth, Milwaukee