2018 WI 37
SUPREME COURT OF WISCONSIN
CASE NO.: 2016AP619
COMPLETE TITLE: In the matter of the mental commitment of J.M.:
Winnebago County,
Petitioner-Respondent,
v.
J. M.,
Respondent-Appellant-Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 372 Wis. 2d 834, 890 N.W.2d 49
(2016 – Unpublished)
OPINION FILED: April 18, 2018
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 7, 2017
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Winnebago
JUDGE: Karen L. Seifert
JUSTICES:
CONCURRED: A.W. BRADLEY, J., concurs (opinion filed).
DISSENTED:
NOT PARTICIPATING:
ATTORNEYS:
For the respondent-appellant-petitioner, there were briefs
and an oral argument by Colleen D. Ball, assistant state public
defender.
For the petitioner-respondent, there was a brief and oral
argument by James A. Kearney, assistant corporation counsel.
An amicus curiae brief was filed on behalf of National
Disability Rights Network by Kendall W. Harrison, Bryan J.
Cahill, Allison W. Reimann, and Godfrey & Kahn, S.C., Madison.
2018 WI 37
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2016AP619
(L.C. No. 2015ME617)
STATE OF WISCONSIN : IN SUPREME COURT
In the matter of the mental commitment of J.M.
Winnebago County,
FILED
Petitioner-Respondent,
APR 18, 2018
v.
Sheila T. Reiff
J. M., Clerk of Supreme Court
Respondent-Appellant-Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 SHIRLEY S. ABRAHAMSON, J. This review involves a
Chapter 51 commitment-extension proceeding. The unpublished
decision of the court of appeals affirmed an order of the
circuit court for Winnebago County, Karen L. Seifert, Judge,
No. 2016AP619
denying J.M.'s motion for post-disposition relief.1 J.M. seeks
relief, claiming ineffective assistance of counsel.
¶2 Three questions are presented to this court:
¶3 First, does J.M. have a statutory right to effective
assistance of counsel at a Chapter 51 commitment-extension
proceeding, and if so, what standard should apply in evaluating
a claim of ineffective assistance of counsel?
¶4 Second, did the failure of J.M.'s trial counsel to
object to, prevent the admission of, or request a curative
instruction regarding evidence presented to the jury of J.M.'s
status as a prisoner (including J.M.'s wearing prison garb)
constitute ineffective assistance of counsel?
¶5 Third, is J.M. entitled to a new Chapter 51
commitment-extension proceeding in the interest of justice
because the jury was repeatedly exposed to evidence of J.M.'s
status as a prisoner and the circuit court gave conflicting jury
instructions?
¶6 We respond as follows to these questions:
¶7 First, J.M. had a statutory right to effective
assistance of counsel in his Chapter 51 commitment-extension
hearing. The legislature has provided that the subject of every
civil commitment proceeding is entitled to be "represented by
adversary counsel." Wis. Stat. § 51.20(3) (2015-16).2 When the
1
Winnebago Cnty. v. J.M., No. 2016AP619, unpublished slip
op. (Wis. Ct. App. Nov. 9, 2016).
2
All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.
2
No. 2016AP619
legislature provides the right to be "represented by counsel,"
the legislature intends that right to include effective
assistance of counsel. In re M.D.(S)., 168 Wis. 2d 995, 1004,
485 N.W.2d 52 (1992). The standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984), is the correct standard for
evaluating a claim of ineffective assistance of counsel in a
commitment-extension hearing.
¶8 Second, given the overwhelming evidence presented by
Winnebago County at the commitment-extension proceeding, J.M.
has not shown that a reasonable probability exists that the
result of the proceeding would have been different had his trial
counsel's performance not been allegedly deficient regarding
J.M.'s appearance in prison garb.
¶9 Third, J.M. has not established that he is entitled to
a new trial under Wis. Stat. § 751.06 on the ground that his
wearing of prison garb during the trial so distracted the jury
"that the real controversy [was] not [] fully tried," and
justice was miscarried. Moreover, the circuit court's
conflicting jury instructions likewise do not entitle J.M. to a
new trial in the interest of justice.
¶10 Accordingly, we affirm the decision of the court of
appeals.
I
3
No. 2016AP619
¶11 The facts are undisputed for purposes of this review.3
On November 20, 2014, J.M. was involuntarily committed for a
period of one year pursuant to Wis. Stat. § 51.20. In 2015,
Winnebago County filed a petition to extend J.M.'s commitment.
J.M. requested and received a jury trial on the petition.
¶12 Prior to trial, J.M.'s counsel asked the Wisconsin
Resource Center (where J.M. was being held) to ensure that J.M.
wore civilian clothes on the day of the trial on his petition.
Despite his counsel's request and for reasons not in the record,
J.M. appeared at his jury trial dressed in prison garb,
shackled, and accompanied by two uniformed guards from the
Department of Corrections. J.M.'s trial counsel did not seek a
continuance when J.M. appeared in his prison garb but did
persuade the circuit court to have J.M.'s shackles removed.4
¶13 During voir dire, J.M.'s trial counsel drew attention
to J.M.'s prison garb:
The kind of apparel that [J.M.'s] wearing, he's an
inmate of the Wisconsin Correctional system, but this
3
On November 20, 2017, J.M. filed a motion to strike
certain facts asserted by Winnebago County during oral argument
before this court. On December 6, 2017, Winnebago County filed
a response stating that it concurs with J.M.'s request that this
court not consider any facts stated by Winnebago County during
oral argument that are not part of the record.
J.M.'s motion is granted. Facts asserted by Winnebago
County during oral argument that do not appear in the record are
not considered by the court in resolving the instant case.
4
J.M. was required to wear a stun belt around his ankle,
but the stun belt was not visible to the jury.
4
No. 2016AP619
isn't a criminal case, as the judge had advised you,
this is one involving a mental commitment for him.
Does anyone feel because of the fact that he's an
inmate with the correctional system that they wouldn't
be able to give a fair opinion or evaluate things
fairly?
¶14 J.M.'s trial counsel once again addressed J.M.'s
prison garb during opening statements:
As I mentioned earlier, [J.M.] is an inmate of the
Wisconsin correctional system. He was transferred to
the Wisconsin Resource Center right next to the
Winnebago Mental Health Institute and he's receiving
treatment and care there. It's my understanding that
he's likely or they developed plans to try to transfer
him back into the regular community of prisoners in
one of the facilities here in the state, that's the
goal they try to reach and that's what he's in prison
for or what he's involved in, that's really not our
affair, but should commitment be imposed upon [J.M.]
¶15 After opening statements, the County called two expert
witnesses to testify. Both had met with and evaluated J.M.
¶16 First, the County called Dr. Marshall Bales, a medical
doctor board certified in general psychiatry. Dr. Bales based
his testimony on the following: (1) an examination of J.M. that
took place on November 11, 2015; (2) a review of J.M.'s
treatment records; and (3) a discussion with correctional
officers who had interacted with J.M.
¶17 Dr. Bales testified at trial that J.M.'s diagnoses
were schizophrenia and antisocial personality disorder.
Further, Dr. Bales testified that "[i]t was abundantly clear"
after meeting J.M. for a brief time that J.M. is severely
mentally ill.
5
No. 2016AP619
¶18 During his testimony, Dr. Bales twice reiterated that
he terminated the evaluation of J.M. early because J.M.'s
behavior made Dr. Bales fear for his safety. Dr. Bales also
testified that it was his opinion, based upon J.M.'s treatment
records, that if J.M.'s involuntary commitment expires, J.M.
will stop taking his medication and will become more delusional
and dangerous.
¶19 Second, the County called Dr. Barbara Waedekin, a
psychiatrist employed by the Wisconsin Resource Center. Dr.
Waedekin had served as J.M.'s treating psychiatrist since March
28, 2014, and saw J.M. approximately 19 to 20 times before the
instant Chapter 51 commitment-extension proceeding. Dr.
Waedekin based her opinions on the following: (1) her
interactions with J.M.; (2) a review of his treatment records;
and (3) communications with other staff at Wisconsin Resource
Center who interacted with him.
¶20 Dr. Waedekin testified that J.M. has a substantial
disorder of thought, mood, and perception that grossly impairs
his behavior, judgment, and capacity to recognize reality. She
testified that J.M. believes that he is the "Lord God Jesus
Christ Omnipotent" and that he wants his records at the
Department of Corrections to reflect that identity. Dr.
Waedekin further testified that J.M. denies having hepatitis
despite a positive blood test because he claims his blood is
mixed with Jeffrey Dahmer's.
¶21 Dr. Waedekin offered several examples of J.M.'s
violent behavior, including charging doors, attempting to grab
6
No. 2016AP619
staff through the trap door in his cell, spitting at staff, and
throwing things. She described one particular instance when she
met with J.M. to advise him that an extension of his commitment
was being requested. When she brought up J.M.'s medication
during that meeting, he became agitated and began yelling at
her:
He stated that he was my Lord, God Jesus Christ, he
addressed me by my first name and he kept saying he
was damming [sic] me. He also was yelling that I was
lying.
He continued to get more and more agitated, stood up,
and was approaching me such that the PCT [patient care
technician] told him he had to leave, that he had to
go through the door with him and out of the office.
¶22 Dr. Waedekin further testified that during this
interaction, J.M. was very menacing and threatening towards her
and that J.M. had been deemed one of the most dangerous
individuals at the facility by one of the guards because he had
a volatile anger that could erupt without warning. Dr. Waedekin
explained that although J.M. was responding well to treatment,
he would "become more violent" if he did not take his medication
and that J.M. was unlikely to take his medication without an
order to do so.
¶23 In contrast, J.M. testified that he had calmed down
and that the instances Dr. Waedekin described had happened when
he was "still very angry." J.M. stated his belief that he was
not mentally ill or dangerous and that the experts' conclusions
were "opinions, not facts." Furthermore, J.M. confirmed on the
stand that he was "Jesus the Lord" and elaborated on this
7
No. 2016AP619
belief, claiming, "I was born from the house of the Lord, it's
the house that I came from and that's who I am." He also
testified that he had the ability to damn people.
¶24 Pursuant to Wis. Stat. § 51.20(1)(a), the jury was
instructed to determine (1) whether J.M. was mentally ill; (2)
whether J.M. was a danger to himself or others; and (3) whether
J.M. was a proper subject for treatment by "clear, satisfactory
and convincing evidence."5 Following deliberation, the jury
unanimously found that J.M. was mentally ill, a danger to
himself or others, and a proper subject for treatment. Based
upon these findings, the circuit court ordered a 12-month
extension to J.M.'s commitment.
¶25 J.M. then filed a post-disposition motion for a new
commitment-extension hearing based on ineffective assistance of
counsel, or alternatively, in the interest of justice. J.M.
contended that his trial counsel was ineffective because his
trial counsel failed to arrange to have J.M. appear in civilian
clothing and failed to request a jury instruction directing that
J.M.'s status as a prisoner had no bearing on the commitment-
extension proceeding.6 Alternatively, J.M. requested a new trial
5
The petitioner, the County in the instant case, has the
burden of proving all required facts by clear and convincing
evidence. Wis. Stat. § 51.20(13)(e).
6
The motion alleged that J.M.'s trial counsel called the
Wisconsin Resource Center about obtaining civilian clothes for
J.M to wear during trial, but for some unknown reason, J.M.'s
counsel did not follow up on the matter.
8
No. 2016AP619
under Wis. Stat. § 751.06 because his appearance in prison garb
distracted the jury from the real controversy at hand.
¶26 The circuit court concluded that J.M. had not
satisfied the two-prong test set forth in Strickland v.
Washington, 466 U.S. 668 (1984), to establish ineffective
assistance of counsel. Also applying the Strickland test, the
court of appeals affirmed the order of the circuit court,
holding in part that even if his trial counsel's performance was
deficient, J.M. was not prejudiced by counsel's allegedly
deficient performance. For the reasons set forth, we affirm the
decision of the court of appeals.
II
¶27 We first address whether the grant of a statutory
right to counsel in Wis. Stat. § 51.20(3) is a grant of a right
to effective assistance of counsel. We determine this question
of statutory interpretation independently of the circuit court
and court of appeals, In re Commitment of Franklin, 2004 WI 38,
¶5, 270 Wis. 2d 271, 677 N.W.2d 276, and conclude that
§ 51.20(3) grants a right to effective assistance of counsel.
¶28 Next, we address the legal standard to be applied for
evaluating the ineffective assistance of counsel claim in this
Chapter 51 proceeding. Determining the legal standard for
evaluating an ineffective assistance of counsel claim is a
question of law that an appellate court decides independently,
benefiting from the analyses of other courts. See Megal Dev.
Corp. v. Shadof, 2005 WI 151, ¶8, 286 Wis. 2d 105, 705
9
No. 2016AP619
N.W.2d 645; State v. McCallum, 208 Wis. 2d 463, 474-75, 561
N.W.2d 707 (1997).
¶29 We conclude, as did the court of appeals, that the
applicable standard for evaluating the ineffective assistance of
counsel claim in the instant case is the two-prong standard
announced in Strickland v. Washington, 466 U.S. 668 (1984): A
movant must demonstrate that counsel's performance was deficient
and that the movant was prejudiced by counsel's deficient
performance. Strickland, 466 U.S. at 687.
¶30 The first prong of Strickland requires the movant to
show specific acts or omissions by counsel that fall "outside
the wide range of professionally competent assistance."
Strickland, 466 U.S. at 690.
¶31 The second prong of Strickland requires the movant to
demonstrate "a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different." Strickland, 466 U.S. at 694. A reasonable
probability is a probability sufficient to undermine confidence
in the outcome. Strickland, 466 U.S. at 694.7 In some cases the
7
The standard announced in Strickland v. Washington, 466
U.S. 668 (1984), has not been modified or supplanted. See
Glover v. United States, 531 U.S. 198, 203 (2001) ("[O]ur
holding in Lockhart [v. Fretwell, 506 U.S. 364 (1993),] does not
supplant the Strickland analysis.").
The Strickland analysis has frequently been applied in
Wisconsin cases. See, e.g., State v. Dillard, 2014 WI 123, ¶95,
358 Wis. 2d 543, 573, 859 N.W.2d 44; State v. Domke, 2011 WI 95,
¶41, 337 Wis. 2d 268, 805 N.W.2d 364 (citing State v. Carter);
State v. Carter, 2010 WI 40, ¶23, 324 Wis. 2d 640, 782
N.W.2d 695.
10
No. 2016AP619
court has stated that the Strickland test for prejudicial
performance by counsel is whether counsel committed errors that
were so serious "as to deprive the defendant of a fair trial, a
trial whose result is reliable."8 If J.M. does not show that a
reasonable probability exists that the result of the proceeding
would be different (i.e., that he was deprived of a fair trial
whose result is reliable), the court need not determine whether
the performance was deficient. Strickland, 466 U.S. at 697. We
conclude that the second prong of Strickland (the prejudice
prong) has not been met in the instant case.
¶32 A claim of ineffective assistance of counsel under
Strickland is a mixed question of fact and law: findings of
fact will not be disturbed unless they are clearly erroneous,
but the ultimate determination of whether trial counsel's
performance was deficient and whether the movant suffered
prejudice are questions of law that an appellate court
determines independently. State v. Carter, 2010 WI 40, ¶19, 324
Wis. 2d 640, 782 N.W.2d 695. We conclude that J.M. failed to
show that a reasonable probability exists that the result of the
proceeding would be different. He cannot show that he was
deprived of a fair trial whose result is reliable.
¶33 Finally, whether to grant a party a new trial in the
interest of justice, the third question presented, is a question
that an appellate court decides independently, benefiting from
8
Strickland, 466 U.S. at 687; State v. Jenkins, 2014 WI 59,
¶37, 355 Wis. 2d 180, 848 N.W.2d 786.
11
No. 2016AP619
the analyses of other courts that have considered the issue.
Morden v. Cont'l AG, 2000 WI 51, ¶88, 235 Wis. 2d 325, 611
N.W.2d 659. We conclude that a new trial in the interest of
justice is not warranted.
III
¶34 The first issue presented is whether the grant of a
statutory right to counsel in Wis. Stat. § 51.20(3) is a grant
of a statutory right to effective counsel and, if so, whether a
claim of ineffective assistance of counsel should be evaluated
using the Strickland standard. We conclude that § 51.20(3)
grants a statutory right to effective counsel and that the
Strickland standard applies to J.M.'s claim of ineffective
assistance of counsel in the instant Chapter 51 proceeding.
¶35 To determine whether Wis. Stat. § 51.20(3) grants a
right to effective counsel in Chapter 51 involuntary commitment
proceedings, we look to the language of the statute. Pursuant
to Wis. Stat. § 51.20(3), "the court shall assure that the
subject individual is represented by adversary counsel" at the
time of the filing of the petition for commitment.9 This court
has concluded that when the legislature provides the right to be
9
Wisconsin Stat. § 51.20(3) provides:
(3) Legal counsel. At the time of the filing of the
petition the court shall assure that the subject
individual is represented by adversary counsel by
referring the individual to the state public defender,
who shall appoint counsel for the individual without a
determination of indigency, as provided in s. 51.60.
12
No. 2016AP619
"represented by counsel," the legislature intends that right to
include effective assistance of counsel. See In re M.D.(S).,
168 Wis. 2d 995, 1004, 485 N.W.2d 52 (1992). Accordingly we
conclude that § 51.20(3) establishes a statutory right to
effective assistance of counsel.10
¶36 Next, we must determine the standard to apply to the
claim of ineffective assistance of counsel in the instant
Chapter 51 proceeding. J.M. proposes a modified Strickland
standard, essentially arguing that prejudice should be presumed
upon a showing of deficient performance.
¶37 Strong legal support exists for our denying J.M.'s
proposal and instead applying the Strickland analysis in the
instant Chapter 51 proceeding.
¶38 First, the liberty interests of a movant at stake in
the involuntary commitment proceeding are similar to the liberty
interests of a movant in criminal proceedings. The similarity
of liberty interests involved in these proceedings, namely that
an institutionalized person is subject to state control and
direction (here medical treatment) that the institutionalized
person claims is not warranted under the law, supports applying
the same standards for evaluating ineffective assistance of
counsel claims in criminal proceedings and in involuntary
commitment proceedings.
10
Winnebago County agrees with J.M. and the court of
appeals that the right to counsel necessarily includes the right
to effective assistance of counsel.
13
No. 2016AP619
¶39 Second, the court has applied the Strickland standard
in other cases involving important liberty interests. For
example, the court has applied Strickland to ineffective
assistance of counsel claims in involuntary termination of
parental rights cases. See In re M.D.(S)., 168 Wis. 2d at 1003
(citing Santosky v. Kramer, 455 U.S. 745, 763-64 (1982)).11
¶40 Third, the Strickland standard has been known to and
applied by both the bench and the bar for more than 30 years.
Strickland, 466 U.S. 668 (1984); State v. Harvey, 139
Wis. 2d 353, 407 N.W.2d 235 (1987) (adopting Strickland). Thus,
11
In Santosky v. Kramer, 455 U.S. 745 (1982), the United
States Supreme Court recognized the formidable task faced by
parents in defending themselves against the involuntary
termination of their parental rights:
The State's ability to assemble its case almost
inevitably dwarfs the parents' ability to mount a
defense. No predetermined limits restrict the sums an
agency may spend in prosecuting a given termination
proceeding. The State's attorney usually will be
expert on the issues contested and the procedures
employed at the factfinding hearing, and enjoys full
access to all public records concerning the family.
The State may call on experts in family relations,
psychology, and medicine to bolster its case.
Furthermore, the primary witnesses at the hearing will
be the agency's own professional caseworkers whom the
State has empowered both to investigate the family
situation and to testify against the parents. Indeed,
because the child is already in agency custody, the
State even has the power to shape the historical
events that form the basis for termination.
Santosky, 455 U.S. at 763-66.
14
No. 2016AP619
the Strickland standard would be easier for the bench and bar to
apply in a variety of cases than a new standard.
¶41 Fourth, the Strickland standard carries with it a
developed body of case law that will aid courts in the efficient
and timely resolution of claims of ineffective assistance of
counsel. See In re Henry B., 159 A.3d 824, 827 (Me. 2017)
(noting the advantages of applying the Strickland standard to
involuntary commitment proceedings).
¶42 Also, despite Strickland's roots in criminal
proceedings, this court12 and courts in other jurisdictions13 have
not limited Strickland to criminal cases. Our decision to apply
the Strickland standard to resolve claims of ineffective
assistance of counsel in commitment proceedings is in accord
with jurisdictions that have considered the issue.
¶43 Indeed, neither the parties nor our research has
revealed any jurisdiction that currently applies a standard
12
See, e.g., In re M.D.(S)., 168 Wis. 2d 995, 1004, 485
N.W.2d 52 (1992) (applying Strickland to ineffective assistance
of counsel claims in termination of parental rights cases); In
re Commitment of Thayer, 2001 WI App 51, ¶14, 241 Wis. 2d 417,
626 N.W.2d 811 (applying Strickland to a claim of ineffective
assistance of counsel in a ch. 980 civil commitment proceeding).
13
See, for example, the following cases applying Strickland
in commitment proceedings: Pope v. Alston, 537 So. 2d 953, 956-
57 (Ala. Civ. App. 1988); Matter of Carmody, 653 N.E.2d 977,
983-84 (Ill. App. Ct. 1995); Jones v. State, 477 N.E.2d 353,
356-357 (Ind. Ct. App. 1985); In re B.T.G., 784 N.W.2d 792, 799
(Iowa Ct. App. 2010); In re Henry B., 159 A.3d 824, 827 (Me.
2017); Matter of J.S., 401 P.3d 197, ¶¶18-19 (Mont. 2017); In re
Protection of H.W., 85 S.W.3d 348, 355-56 (Tex. App. 2002);
Matter of Chapman, 796 S.E.2d 843, 849-50 (S.C. 2017).
15
No. 2016AP619
different than Strickland to claims of ineffective assistance of
counsel in commitment proceedings.14
¶44 In contrast, the modified Strickland standard proposed
by J.M. could encourage the proliferation of ineffective
assistance of counsel challenges and delay the permanency
necessary to stabilize a mentally ill individual's treatment in
a safe environment. See, e.g., In re Henry B., 159 A.3d at 827.
¶45 Accordingly, we adopt the Strickland standard for
ineffective assistance of counsel claims raised in Chapter 51
involuntary commitment proceedings.
IV
¶46 We next determine whether in the instant case J.M. is
entitled to a new commitment-extension proceeding on the ground
of ineffective assistance of counsel. We conclude that J.M. is
not entitled to a new commitment-extension proceeding because he
has not demonstrated that he was prejudiced by his trial
counsel's allegedly deficient performance.
¶47 In order to be entitled to a new trial, J.M. must
satisfy the two-prong test announced in Strickland. First, J.M.
must show that trial counsel's performance was so poor as to
14
In In re Mental Health of K.G.F., 29 P.3d 485 (Mont.
2001), the Montana Supreme Court rejected the Strickland
standard in civil commitment proceedings and instead applied a
five-factor analysis to determine whether counsel had provided
effective assistance. This case has since been overruled and
the Montana Supreme Court now applies the Strickland standard to
ineffective assistance of counsel claims in civil commitment
proceedings. Matter of J.S., 401 P.3d 197 (Mont. 2017).
16
No. 2016AP619
deny him effective counsel. Strickland, 466 U.S. at 687. This
prong requires a showing of specific acts or omissions by
counsel that fall "outside the wide range of professionally
competent assistance." Strickland, 466 U.S. at 690.
¶48 Second, J.M. must demonstrate "a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different."
Strickland, 466 U.S. at 694.
¶49 A reasonable probability under the Strickland
prejudice prong is a probability sufficient to undermine
confidence in the outcome. Strickland, 466 U.S. at 694. This
statement of the prejudice prong corresponds with another oft-
quoted statement from Strickland about the prejudice prong,
namely that the defendant was prejudiced if he or she was
deprived of a fair trial whose result is reliable. Strickland,
466 U.S. at 694.
¶50 Because J.M. has not shown he was prejudiced by trial
counsel's performance, this court need not determine whether
counsel's performance was deficient.
¶51 J.M. argues that his trial counsel was ineffective
during trial for not objecting to J.M.'s appearance in prison
garb and to "other references" to J.M.'s status as an inmate,
and for failing to request a curative instruction. In support
of this claim, J.M. relies on cases that indicate that constant
17
No. 2016AP619
reminders to the jury that the defendant is an inmate undermine
fair fact-finding and due process.15
¶52 The key case upon which J.M. relies is Estelle v.
Williams, 425 U.S. 501 (1976), in which the United States
Supreme Court explained that the accused's prisoner status may
be a continuing unfair influence on a jury:
[T]he constant reminder of the accused's condition
implicit in such distinctive, identifiable attire may
affect a juror's judgment. The defendant's clothing
is so likely to be a continuing influence throughout
the trial that, not unlike placing a jury in the
custody of deputy sheriffs who were also witnesses for
the prosecution, an unacceptable risk is presented of
impermissible factors coming into play.
Estelle, 425 U.S. at 504-05.
¶53 J.M. highlights this language from Estelle because it
suggests that a defendant's clothing alone could constitute
prejudice. In the instant case, not only did J.M. wear prison
garb during the proceeding, but he was accompanied by uniformed
15
See, e.g., Holbrook v. Flynn, 475 U.S. 560, 569 (1986)
("[T]he sight of a security force within the courtroom might
under certain conditions 'create the impression in the minds of
the jury that the defendant is dangerous or untrustworthy.'")
(quoted source omitted); People v. Hernandez, 247 P.3d 167, 173
(Cal. 2011) (while a deputy standing by a defendant on a witness
stand is not a "human shackle," it is potentially prejudicial);
State v. Champlain, 2008 WI App 5, ¶22, 307 Wis. 2d 232, 744
N.W.2d 889 (a defendant cannot be compelled to appear before a
jury wearing an armband taser).
J.M. also relies upon an opinion by the Wisconsin Attorney
General that the same principles that govern ineffective
assistance of counsel claims in criminal proceedings should
apply to Chapter 51 proceedings as well. 71 Wis. Op. Att'y Gen.
183, 184-85 (1982) (OAG 58-82).
18
No. 2016AP619
guards during the proceeding and while he was on the witness
stand.
¶54 We conclude that J.M. failed to demonstrate that a
reasonable probability exists that the result of his Chapter 51
commitment-extension proceeding would have been different had
trial counsel's conduct not been deficient as alleged. We
therefore need not decide whether counsel's alleged deficiencies
constitute deficient performance under Strickland.
¶55 In determining whether there is a reasonable
probability of a different result, the reviewing court considers
all the evidence in the record. Strickland, 466 U.S. at 695.
The court of appeals accurately described the evidence as
overwhelmingly in favor of continuing J.M.'s commitment.
Winnebago Cnty. v. J.M., No. 2016AP619, unpublished slip op.,
¶16 (Wis. Ct. App. Nov. 9, 2016).16
¶56 At the commitment-extension proceeding, two medical
doctors specializing in psychiatry, Dr. Bales and Dr. Waedekin,
testified in support of extending J.M.'s commitment. Both
doctors were of the opinion "to a reasonable degree of medical
certainty" that (1) J.M. was mentally ill; (2) J.M. was a danger
to himself or others; and (3) J.M. was a proper subject for
treatment. The experts based their opinions on personal
interactions with J.M. as well as reviews of his treatment
16
"[A] verdict or conclusion only weakly supported by the
record is more likely to have been affected by errors than one
with overwhelming record support." Strickland, 466 U.S. at 696.
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history and records. See supra ¶¶16-22 (describing the medical
testimony).
¶57 In contrast, J.M. presented no countervailing expert
testimony to rebut the opinions of Dr. Bales or Dr. Waedekin.
Instead, J.M. testified on his own behalf. J.M. testified that
he was not mentally ill or dangerous, that he had calmed down,
and that the County's experts' conclusions were "opinions, not
facts." J.M. also testified that he identifies as "Jesus the
Lord" and has the ability to damn people.
¶58 Further, both doctors shared experiences of their
interactions with J.M. that contradicted J.M.'s testimony that
he was no longer a danger to himself or others and that he had
calmed down. Dr. Bales testified to terminating his evaluation
of J.M. early because J.M.'s reactions caused him to fear for
his safety. This evaluation occurred just one day prior to the
commitment-extension proceeding. Dr. Waedekin also testified to
being the subject of a menacing and threatening outburst that
included being yelled at and "damned" by J.M. when she met with
J.M. to advise him that an extension of his commitment was being
requested.
¶59 To prevail in the instant commitment-extension
proceeding and obtain a continuation of J.M.'s confinement,
Winnebago County had to prove by clear and convincing evidence
that J.M. was (1) mentally ill; (2) a danger to himself or
others; and (3) a proper subject for treatment. Wis. Stat.
§ 51.20(1)(a), (13)(e).
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No. 2016AP619
¶60 The jurors were instructed to determine a witness's
credibility based on the witness's conduct, appearance, and
demeanor on the witness stand and all other facts and
circumstances. No reasonable jurors would have thought that the
jury instructions directed them to base their credibility
assessment on J.M.'s clothing. Although in-person evaluation of
witness credibility is important, we are not persuaded that the
jury would have given different credence to J.M.'s testimony had
he not worn prison garb.
¶61 Given the testimony presented by the County and J.M.,
the jury's findings that J.M. was mentally ill, a danger to
himself or others, and a proper subject for treatment were well-
supported by the evidence. The evidence presented by Winnebago
County supporting its position was overwhelming. J.M. is unable
to demonstrate a reasonable probability that the result of the
proceeding would have been different but for his trial counsel's
allegedly deficient performance.
V
¶62 Lastly, we determine whether J.M. is entitled to a new
commitment-extension proceeding in the interest of justice under
Wis. Stat. § 751.06.
¶63 Wisconsin Stat. § 751.06 permits this court to order a
new trial "if it appears from the record that the real
controversy has not been fully tried, or that it is probable
that justice has for any reason miscarried . . . ." Wis. Stat.
§ 751.06. This court's discretionary power pursuant to Wis.
Stat. § 751.06 is to be "exercised sparingly and with great
21
No. 2016AP619
caution." State v. Watkins, 2002 WI 101, ¶79, 255 Wis. 2d 265,
647 N.W.2d 244.
¶64 J.M. contends that because the jury received
contradictory instructions on the burden of proof and because
J.M. was in prison attire, the real controversy was not tried in
the instant case.
¶65 Before opening statements, the circuit court
erroneously told the jury that Winnebago County was required to
prove its case by the "greater weight of the credible evidence."
No one pointed out the mistake. At the end of testimony,
immediately prior to jury deliberations, the circuit court
orally correctly instructed the jury that Winnebago County had
to prove all facts by "clear and convincing evidence." The
correct standard was also included in the written jury
instructions; the circuit court is required to submit the
written jury instructions to the jury. Wis. Stat. § 805.13(4).
Under these circumstances, the conflicting jury instructions
fail to raise sufficient qualms about the commitment-extension
proceeding to justify this court's use of its discretionary
power under Wis. Stat. § 751.06.
¶66 Furthermore, as we explained above, J.M. was not
prejudiced by his wearing of prison garb during his commitment-
extension proceeding.
¶67 Accordingly, nothing in the record supports J.M.'s
contention that the court should exercise its discretionary
power under Wis. Stat. § 751.06 to grant a new trial on the
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No. 2016AP619
ground that the real controversy was not fully tried. The real
controversy was fully tried.
* * * *
¶68 For the reasons set forth, we conclude that J.M. is
not entitled to a new Chapter 51 commitment-extension
proceeding.
¶69 The legislature has granted a right to effective
assistance of counsel in the Chapter 51 commitment-extension
proceeding at issue. Wis. Stat. § 51.20(3). The Strickland
standard is the correct standard to apply to the claim of
ineffective assistance of counsel. J.M. did not demonstrate
that he was prejudiced by trial counsel's allegedly deficient
performance.
¶70 Accordingly, we affirm the court of appeals' decision
that J.M.'s post-disposition motion was properly dismissed.
By the Court.—The decision of the court of appeals is
affirmed.
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No. 2016AP619.awb
¶71 ANN WALSH BRADLEY, J. (concurring). I agree with
the majority that the Strickland standard should be applied to
ineffective assistance of counsel claims in ch. 51 involuntary
commitment proceedings. I further agree that the evidence is
"overwhelmingly in favor of continuing J.M.'s commitment."
Majority op., ¶55. Accordingly, I also conclude that "J.M. is
unable to demonstrate a reasonable probability that the result
of the proceeding would have been different but for his trial
counsel's allegedly deficient performance." Id., ¶61.
¶72 However, I write separately to caution counsel in ch.
51 cases regarding the effect that prison garb and uniformed
guards may have on such a proceeding. There is a dearth of case
law surrounding ineffective assistance of counsel in the context
of ch. 51 proceedings, making further guidance to the bench and
bar alike beneficial. Indeed, this case represents our first
announcement that a potential ch. 51 committee is entitled to
the effective assistance of counsel in the first instance.
¶73 For the reasons set forth below, I urge ch. 51 counsel
to be mindful of the unique effect that prison garb and
uniformed officers could have on a proceeding where
"dangerousness" is an element the county must prove.
¶74 Although J.M.'s counsel had asked the Wisconsin
Resource Center to ensure J.M. appeared for trial in civilian
clothing, it failed to do so. Despite J.M. being clothed in his
prison uniform, counsel allowed the trial to continue without
objection. Majority op., ¶12.
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No. 2016AP619.awb
¶75 The United States Supreme Court has recognized that
prison uniforms are "so likely to be a continuing influence
throughout the trial that, not unlike placing a jury in the
custody of deputy sheriffs who were also witnesses for the
prosecution, an unacceptable risk is presented of impermissible
factors coming into play." Estelle v. Williams, 425 U.S. 501,
505 (1976).
¶76 Prison clothing is an "unmistakable indication[] of
the need to separate a defendant from the community at large."
Holbrook v. Flynn, 475 U.S. 560, 569 (1986). It is "a sign that
[a person] is particularly dangerous or culpable." See id.
Such attire thus sends a strong signal to a jury not only that a
person is criminally guilty, but that a person is dangerous.
¶77 In addition to wearing prison clothing, J.M. was
accompanied throughout trial by two uniformed guards from the
Department of Corrections. See majority op., ¶12. "[T]he sight
of a security force within the courtroom might under certain
conditions create the impression in the minds of the jury that
the defendant is dangerous or untrustworthy." Holbrook, 475
U.S. at 569 (internal quotation omitted).
¶78 The uniformed officers did not merely guard J.M. in
the courtroom during the proceedings, but also flanked J.M. even
as he testified from the witness stand. See majority op., ¶53.
The image of this guarded closeness has the potential to
prejudice the jury. See People v. Hernandez, 247 P.3d 167, 173-
74 (Cal. 2011) (explaining that although a deputy standing by a
2
No. 2016AP619.awb
defendant on the witness stand is not a "human shackle," it is
potentially prejudicial to the jury).
¶79 The facts alleged here give rise to the "certain
conditions" forewarned in Holbrook. The combination of prison
clothing and uniformed officers standing guard next to the
witness stand may leave "the impression in the minds of the jury
that the defendant is dangerous." See Holbrook, 475 U.S. at
569.
¶80 These facts are particularly potent because
dangerousness is an element that the county must prove in a ch.
51 commitment proceeding.1 In re Helen E.F., 2012 WI 50, ¶20,
340 Wis. 2d 500, 814 N.W.2d 179; Wis. Stat. § 51.20(1)(a)1.-2.
When a person subject to a ch. 51 proceeding appears before the
jury surrounded by uniformed guards and wearing prison garb, the
dangerousness element could be established without a word from
the county's attorney. One look at a person in this condition
may create a clear subtext: this man is dangerous.
¶81 Accordingly, although I join the majority opinion, I
write separately to call attention to counsel's obligations in
ch. 51 proceedings. I urge counsel to be mindful of the
potentially harmful effects of prison garb and uniformed guards
when "dangerousness" is an element that must be proven.
¶82 For the foregoing reasons, I respectfully concur.
1
In order to be subject to involuntary commitment pursuant
to ch. 51, an individual must be (1) mentally ill; (2) a proper
subject for treatment; and (3) dangerous to themselves or to
others. In re Helen E.F., 2012 WI 50, ¶20, 340 Wis. 2d 500, 814
N.W.2d 179; Wis. Stat. § 51.20(1)(a)1.-2.
3
No. 2016AP619.awb
1