Please ensure Javascript is enabled for purposes of website accessibility

Ineffective Assistance of Counsel

By: Derek Hawkins//December 6, 2017//

Ineffective Assistance of Counsel

By: Derek Hawkins//December 6, 2017//

Listen to this article

WI Supreme Court

Case Name: State of Wisconsin v. Ginger M. Breitzman

Case No.: 2017 WI 100

Focus: Ineffective Assistance of Counsel

The ineffective assistance of counsel issue raised requires consideration of whether counsel was ineffective for any of the following reasons: (1) failing to move to dismiss the disorderly conduct charge on the basis that it violated Breitzman’s constitutional right to free speech; (2) failing to present opening remarks consistent with Breitzman’s anticipated testimony; and (3) failing to object to testimony regarding other uncharged conduct.

As to the first, we conclude that trial counsel’s failure to move to dismiss the disorderly conduct charge on the basis that it violated Breitzman’s constitutional right to free speech was not deficient performance, and thus not ineffective assistance of counsel, because whether profane conduct that tends to cause or provoke a disturbance is protected as free speech is unsettled law. As to the second, we conclude that trial counsel’s theory of reasonable parental discipline, as presented in opening remarks, was not deficient performance, and thus not ineffective assistance of counsel, because it reflected trial counsel’s reasonable expectations, which were rationally based on discussions with Breitzman, and it was part of a reasonable trial strategy. As to the third, we conclude that trial counsel’s failure to object to testimony regarding uncharged conduct was not deficient performance, and thus not ineffective assistance of counsel, because declining to object was part of a reasonable trial strategy.

Because we conclude that trial counsel’s performance was not deficient, we need not address whether, in the context of ineffective assistance of counsel, there was prejudice to Breitzman, and we decline to do so. Thus, we affirm the decision of the court of appeals.

Affirmed

Concur: ABRAHAMSON, J.

Dissent:

Full Text


Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests