Winnebago County v. J.M.

Annotate this Case
Justia Opinion Summary

In this commitment-extension proceeding the Supreme Court affirmed the decision of the court of appeals affirming the circuit court’s order denying J.M.’s motion for post-disposition relief in which J.M. claimed ineffective assistance of counsel. The Court answered (1) J.M. had a statutory right to effective assistance of counsel in his Chapter 41 commitment-extension hearing, and the Strickland standard is the correct standard for evaluating a claim of ineffective assistance of counsel in a commitment-extension hearing; (2) J.M. did not show that a reasonable probability existed 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; and (3) J.M. did not establish that he was entitled to a new trial on the ground that his wearing of prison garb during the trial so distracted the jury that justice was miscarried, and the circuit court’s conflicting jury instructions did not entitle J.M. to a new trial in the interest of justice.

Download PDF
2018 WI 37 SUPREME COURT CASE NO.: COMPLETE TITLE: OF WISCONSIN 2016AP619 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 REVIEW OF A DECISION OF THE COURT OF APPEALS Reported at 372 Wis. 2d 834, 890 N.W.2d 49 (2016 – Unpublished) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: SOURCE OF APPEAL: COURT: COUNTY: JUDGE: April 18, 2018 November 7, 2017 Circuit Winnebago Karen L. Seifert JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: A.W. BRADLEY, J., concurs (opinion filed). 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 Disability curiae brief was filed on behalf of National 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 Clerk of Supreme Court J. M., Respondent-Appellant-Petitioner. REVIEW of a decision of the Court of Appeals. ¶1 Chapter decision SHIRLEY 51 of S. ABRAHAMSON, commitment-extension the court of J. This proceeding. appeals affirmed Affirmed. review The an involves a unpublished order of the circuit court for Winnebago County, Karen L. Seifert, Judge, No. denying J.M.'s motion for post-disposition relief.1 2016AP619 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 object Second, did the failure of J.M.'s trial counsel to 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 commitment-extension J.M. entitled proceeding in to the a new Chapter interest of 51 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, assistance hearing. of J.M. counsel had in a his statutory Chapter 51 right to effective commitment-extension 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 assistance of counsel. 485 N.W.2d 52 (1992). that right to include effective In re M.D.(S)., 168 Wis. 2d 995, 1004, 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 justice real was controversy miscarried. [was] not Moreover, [] the fully tried," circuit and 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. ¶11 2016AP619 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 shackled, and at his jury accompanied Department of Corrections. continuance when J.M. by trial dressed two uniformed in prison guards garb, from the J.M.'s trial counsel did not seek a 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. ¶16 Both had met with and evaluated J.M. First, the County called Dr. Marshall Bales, a medical doctor board certified in general psychiatry. his testimony on the following: took place treatment on November records; and 11, (3) Dr. Bales based (1) an examination of J.M. that 2015; a (2) a discussion review with of J.M.'s correctional officers who had interacted with J.M. ¶17 were Dr. Bales schizophrenia testified and at trial antisocial that J.M.'s personality diagnoses disorder. Further, Dr. Bales testified that "[i]t was abundantly clear" after meeting J.M. for a brief mentally ill. 5 time that J.M. is severely No. ¶18 he 2016AP619 During his testimony, Dr. Bales twice reiterated that terminated the evaluation of J.M. early because behavior made Dr. Bales fear for his safety. J.M.'s 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, psychiatrist employed by the Wisconsin Resource Center. a 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 Waedekin based commitment-extension her opinions on the proceeding. following: Dr. (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" Department Waedekin of and that Corrections further testified he to wants reflect that J.M. his that denies records at identity. having the Dr. 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." stand that he was "Jesus Furthermore, J.M. confirmed on the the Lord" 7 and elaborated on this 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 unanimously evidence."5 found that Following J.M. was deliberation, mentally ill, a the danger himself or others, and a proper subject for treatment. upon these findings, the circuit court ordered jury a to Based 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 commitmentextension 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 satisfied circuit the Washington, court two-prong 466 U.S. court of appeals test 668 assistance of counsel. concluded set that forth (1984), to J.M. in had not Strickland establish v. ineffective Also applying the Strickland test, the affirmed the order of the circuit court, holding in part that even if his trial counsel's performance was deficient, J.M. was not deficient performance. prejudiced by counsel's allegedly 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 evaluating proceeding. an ineffective Determining assistance the legal standard of counsel claim for is a question of law that an appellate court decides independently, benefiting from the analyses of other courts. Corp. v. Shadof, 2005 WI 151, 9 ¶8, 286 See Megal Dev. Wis. 2d 105, 705 No. N.W.2d 645; State v. McCallum, 208 Wis. 2d 463, 2016AP619 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 performance. ¶30 movant was prejudiced by counsel's deficient Strickland, 466 U.S. at 687. 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. court has stated that the Strickland test for 2016AP619 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. conclude that the second Strickland, 466 U.S. at 697. prong of Strickland (the We prejudice prong) has not been met in the instant case. ¶32 A claim of ineffective assistance of Strickland is a mixed question of fact and law: counsel under findings of fact will not be disturbed unless they are clearly erroneous, but the ultimate performance prejudice was are determination deficient questions determines independently. and of of whether whether law that trial counsel's the movant suffered an appellate court 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 N.W.2d 659. AG, 2000 WI 51, ¶88, 235 Wis. 2d 325, 611 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 grants Strickland a statutory Strickland standard standard. right to applies We conclude effective to that counsel J.M.'s claim § 51.20(3) and of that the 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. to Wis. Stat. § 51.20(3), "the court shall assure Pursuant 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). conclude that § 51.20(3) establishes a Accordingly we statutory right to effective assistance of counsel.10 ¶36 claim Next, we must determine the standard to apply to the of Chapter ineffective 51 standard, assistance proceeding. J.M. of counsel proposes a in the modified instant Strickland 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 counsel standards claims in for evaluating criminal ineffective proceedings and assistance in of 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. ¶39 in 2016AP619 Second, the court has applied the Strickland standard other cases example, the assistance involving court of has counsel parental rights cases. important applied claims in liberty interests. For Strickland to ineffective involuntary termination of 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, Wis. 2d 353, 407 N.W.2d 235 (1987) (adopting Strickland). 139 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. the Strickland standard to resolve Our decision to apply claims of ineffective assistance of counsel in commitment proceedings is in accord with jurisdictions that have considered the issue. ¶43 revealed Indeed, any neither jurisdiction the parties that nor currently our research applies a has 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, 95657 (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 by In contrast, the modified Strickland standard proposed J.M. could assistance of encourage counsel the proliferation challenges and delay of ineffective the permanency necessary to stabilize a mentally ill individual's treatment in a safe environment. ¶45 See, e.g., In re Henry B., 159 A.3d at 827. 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. deny him effective counsel. prong requires counsel that a Second, of "outside competent assistance." ¶48 Strickland, 466 U.S. at 687. showing fall 2016AP619 specific the wide acts range or of This omissions by professionally Strickland, 466 U.S. at 690. 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 prejudice A reasonable prong is a probability probability confidence in the outcome. under the sufficient Strickland to undermine Strickland, 466 U.S. at 694. This statement of the prejudice prong corresponds with another oftquoted statement from namely that defendant the Strickland was about the prejudiced prejudice if he deprived of a fair trial whose result is reliable. or prong, she was Strickland, 466 U.S. at 694. ¶50 counsel's Because J.M. has not shown he was prejudiced by trial 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 Williams, 425 U.S. 501 (1976), in which the Estelle v. 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 suggests J.M. highlights this language from Estelle because it that prejudice. a defendant's clothing alone could constitute 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. The court of overwhelmingly appeals in Strickland, 466 U.S. at 695. accurately favor of described continuing the evidence J.M.'s as 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 interactions with J.M. as based well 16 their as opinions reviews of on his personal treatment "[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. 19 No. history and records. 2016AP619 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 proceeding prevail and obtain in a the instant continuation of commitment-extension 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. § 51.20(1)(a), (13)(e). 20 Wis. Stat. No. ¶60 The jurors were instructed to determine a witness's credibility demeanor based on the circumstances. jury 2016AP619 on the witness witness's stand conduct, and all appearance, other facts and and No reasonable jurors would have thought that the instructions directed them assessment on J.M.'s clothing. to base their credibility 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 wellsupported 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 new Wisconsin Stat. § 751.06 permits this court to order a 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 . . . ." § 751.06. Wis. Stat. This court's discretionary power pursuant to Wis. Stat. § 751.06 is to be "exercised sparingly and with great 21 No. caution." 2016AP619 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 immediately out prior the to mistake. jury At the deliberations, end of the testimony, circuit court orally correctly instructed the jury that Winnebago County had to prove all facts by "clear and convincing evidence." correct standard instructions; was the also circuit included court is in the required The written to jury 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 commitmentextension proceeding. ¶67 Accordingly, contention that the nothing court in should the record exercise supports its J.M.'s discretionary power under Wis. Stat. § 751.06 to grant a new trial on the 22 No. ground that the real controversy was not fully tried. 2016AP619 The real controversy was fully tried. * * * * ¶68 not For the reasons set forth, we conclude that J.M. is entitled to a new Chapter 51 commitment-extension proceeding. ¶69 The assistance legislature of has granted a counsel the Chapter 51 proceeding at issue. standard is the in right standard to ineffective assistance of counsel. effective commitment-extension Wis. Stat. § 51.20(3). correct to apply The Strickland to the claim of 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 affirmed. 23 of the court of appeals is No. ¶71 ANN WALSH BRADLEY, J. (concurring). 2016AP619.awb I agree with the majority that the Strickland standard should be applied to ineffective assistance of counsel claims in ch. 51 involuntary commitment proceedings. "overwhelmingly in Majority op., ¶55. I further agree that the evidence is favor of continuing J.M.'s commitment." 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." ¶72 Id., ¶61. 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 to be For the reasons set forth below, I urge ch. 51 counsel mindful uniformed of officers the unique could effect have on that a prison garb proceeding and 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. 1 No. ¶75 2016AP619.awb 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 has image of this prejudice the jury. guarded closeness the potential to 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 conditions" forewarned in Holbrook. clothing and uniformed officers rise to the "certain The combination of prison 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: ¶81 this man is dangerous. 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. 1 2016AP619.awb