We have a prospective new client that would like to retain our office for an ineffective assistance of counsel case appeal. Our client was charged with second degree sexual assault of a woman he met in a bar. He lost his motion at the trial court level and is appealing at the court of appeals level.

The defendant met up with the victim at the bar and then met up with her again the following weekend at the same bar. She was extremely intoxicated the evening of the incident.The defendant was also intoxicated. His main claim to support ineffective assistance of counsel is that his attorney did not object to the State calling an intoxicated witness from the bar (friend of the victim) that provided hearsay testimony that the defendant was force feeding the victim shots of Patron. In addition, the attorney failed to review a witness report from the police department of the victim's neighbor she that could hear the victim giggling and laughing while they were in her bedroom. The neighbor said that both her and the victim's bedroom windows were open and are on the backside of the apartment building (approximately 5 feet apart). She never heard anything to suggest that the victim did not want to be where she was with the defendant.

There are two tiers to a claim of ineffective assistance of counsel.The first is to find deficiencies in the representation and the second one is to the decide if those deficiencies prejudiced the defendant. Both need to be present in order to be successful in this claim. The type of hearing that we have to determine this is called a a Machner evidentiary hearing. The Machner test comes from an old 1979 case that

You are to use only the following sources below in your legal memorandum. HOWEVER, you can do supporting research for your own knowledge to understand the process but you should not use that extra research in your legal memorandum. If you do, your memorandum will be rejected.

1.W.S.A. Const. Art. 1, 7 Standard of Effective Assistance in General

2.State v. Domke, 337 Wis.2d 268, 2011 WI 95, 805 N.W.2d 364 (2011)

*You can cite quotes from Domke that come from other cases if you acknowledge the same. You can look at examples of this inside the Domke case. An example of this would be as follows:

"xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx." State v. Domke, 337 Wis.2d 268, 2011 WI 95, 805 N.W.2d 364 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). "xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx' Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

Remember the discussion we had in class regarding the purpose of a legal memorandum. Re-read Chapters 12/13 and review the sample on p.309 and the more complex sample on p. 331.