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‘Really?’: Supreme Court justices disagree on invoking laches in homicide appeal

The Wisconsin Supreme Court disagreed on invoking laches in an appeal case that concerns a defendant’s rights in a 2007 homicide conviction. Last week, a 4-3 majority upheld imposing laches in the case, prompting the response “Really?” in one of the arguments.

Joshua Wren was convicted of reckless homicide in 2007 at the age of 16. A Milwaukee County judge sentenced him to 21 years of initial confinement and nine years of extended supervision, longer than recommended. Court documents say Wren’s attorney, Nikola Kostich, had then told him “not to worry” about the longer sentence because he’d file an appeal.

A decade later, Wren filed a writ of habeas corpus seeking the reinstatement of his direct appeal rights and alleging Kostich had failed to file a notice of intent to pursue postconviction relief as promised. Wren said he and his family tried to speak to Kostich on various occasions to no avail. His petition referenced Kostich’s disciplinary history to substantiate his claims. During the 2017 case, the state pleaded laches, saying Kostich died in 2014 and no case files remained. A court of appeals decided to impose laches and denied the petition.

Wren appealed to the state Supreme Court, arguing the adoption of laches was ill-considered. The appeal challenged whether the state had established that there had been unreasonable delay and prejudice in the proceedings. Chief Justice Pat Roggensack and justices Brian Hagedorn, Annette Ziegler and Dan Kelly upheld the Court of Appeals decision.

In the majority opinion, Hagedorn said unreasonable delay in laches is determined by taking into account what litigants might have known had they exercised reasonable diligence, not what they actually knew. Hagedorn said Wren knew as early as 2010 that Kostich never filed an appeal, but Wren never mentioned it in any of the four pro se motions he filed over the next several years.

“The not-so-silent argument being made is that Wren is less capable than others and should be held to a lower standard,” Hagedorn wrote. “Nothing prevented Wren from contacting another attorney. Nothing prevented Wren from researching available options to ensure he took advantage of every possible legal argument he could make.”

To which Justice Ann Walsh Bradley responded, “Really?”

In the dissenting opinion, she wrote that the majority’s decision had endorsed a significant failure in the justice system. She said Wren’s delay wasn’t unreasonable and the application of laches wasn’t fair.

“While the majority places the delay at Wren’s feet, it glosses over the underlying reason that an appeal was never filed — that Wren was abandoned by his counsel and thus completely denied the right to counsel on direct appeal in violation of the Sixth Amendment” Bradley wrote. “It is the rare member of the public who even knows of the existence of a writ of habeas corpus, let alone what it means and how and when to file such a writ.”

Justices Rebecca Bradley and Rebecca Dallet joined the dissent.

About Michaela Paukner, [email protected]

Michaela Paukner is the legal reporter for the Wisconsin Law Journal. She can be reached at (414) 225-1825 or by email at [email protected]

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