Wisconsin’s rules of appellate procedure for criminal cases and other cases where there is a statutory or constitutional right to counsel provide unique litigation opportunities. In other jurisdictions, criminal appellate attorneys are limited to reviewing a static record and writing appellate briefs which raise preserved issues and/or errors so clear that they fall within “plain error” or “structural error” doctrines.
In contrast, under Wisconsin rules, the right to a direct appeal includes a right, and in some cases an obligation, to first move for postconviction or postdisposition relief in the circuit court. Postconviction litigation may involve a contested hearing or even an evidentiary hearing. Common postconviction motion issues include, for example, whether a guilty plea was involuntarily entered, whether trial counsel was ineffective, or whether a sentence should be reduced based on information rebutting the judge’s understanding of the defendant’s prior history or circumstances of the crime. Appellate attorneys in Wisconsin thus have the opportunity, and the duty, to enhance or develop the record, and to resolve all of a client’s claims in a single appeal.
This system makes Wisconsin appellate practice dynamic and interesting. Attorneys have more creative control over a case and get to employ a broader range of skills. But it also makes appellate practice in Wisconsin more challenging. In addition to reviewing the trial record, Wisconsin appellate attorneys must consider and evaluate issues that were not raised and evaluate or reevaluate witnesses who may or may not have been part of the underlying case. Consequently, in addition to traditional appellate skills, attorneys taking Wisconsin public defender appeal cases must also develop skills more typically associated with trial practice.
This handbook is intended as a general guide to this process. Of course, no guide is 100 percent comprehensive; this handbook is not intended to provide specific legal direction or advice. It is a starting point, a guide. In using this handbook, you should always verify citations, use your legal training and good judgment, and seek the advice of more experienced attorneys when needed. And no guide can substitute for intellectual curiosity and empathy, which we hope will inform every aspect of your practice.
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