Winnebago County DHHS v. Thomas C. W., 2010AP847, District 2, 3/16/11
court of appeals decision (1-judge, not for publication); for Thomas C.W.: Theresa J. Schmieder; case activity
Though trial counsel was ineffective with respect to a single discrete oversight – failure to lodge a meritorious motion for judgment notwithstanding verdict as to one of the 3 grounds for termination – the court discerns no basis to doubt either of the remaining 2 grounds, and therefore no basis to upset the disposition. (Court stresses that appellate counsel failed to make any “substantive argument regarding” one of these other grounds.)
¶8 In his appellate brief, Thomas makes several arguments regarding the abandonment ground for termination. Yet, inexplicably, he makes no substantive argument regarding the children-in-continuing-need-of-protection-or-services ground for termination.[2] This is inexplicable because the finding that the children are in continuing need of protection or services is itself a sufficient ground for the trial court to have ordered termination of parental rights. Wis. Stat. § 48.415(2). As such, it is itself a sufficient ground for this court to affirm. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983) (if resolution of one issue disposes of appeal, we need not address other arguments raised by appellant).
The court indicates (fn. 2) that appellate counsel made but a “passing,” inadequately developed argument on the CHIPS ground, which therefore “merits no further attention.” State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992), cited for idea that arguments unsupported by legal authority won’t be considered. The court nonetheless goes on to engage “extensive review of the lengthy transcripts” and to reach a conclusion that despite the discrete instance noted, trial counsel “was otherwise effective.” The court thus apparently reached the merits anyway. In any event, a very steep price is paid for a forfeited argument in a TPR, where as a practical matter no possibility exists for collateral attack.
¶9 Thomas also contends that we should grant a new trial in the interest of justice. We disagree. Our discretionary reversal power under Wis. Stat. § 752.35 is formidable and should be exercised sparingly and with great caution. State v. Williams, 2006 WI App 212, ¶36, 296 Wis. 2d 834, 723 N.W.2d 719. We are reluctant to grant new trials in the interest of justice and exercise our discretion to do so “only in exceptional cases.” See State v. Armstrong, 2005 WI 119, ¶114, 283 Wis. 2d 639, 700 N.W.2d 98. This is not such a case.
I may be missing something since I don’t handle TPR cases, but I had understood that, where the jury is instructed on multiple theories of conviction, Wisconsin law “‘requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.’” State v. Crowley, 143 Wis.2d 324, 422 N.W.2d 847, 851-52 (1988) (citation omitted).
In other words, we cannot assume, as the Court appears to do here, that the jury reached its verdict on a valid ground rather than the invalid one. Was there a special verdict on each of the theories for termination?
Thanks for the feedback, and excellent point, Rob. According to the slip op. (¶3), “The jury returned three special verdicts, finding that Thomas had abandoned both children pursuant to Wis. Stat. § 48.415(1), that the children were in continuing need of protection or services pursuant to § 48.415(2), and that Thomas had failed to assume parental responsibility pursuant to § 48.415(6).” So that would seem to take the case factually out of Crowley.
But there may be a more profound problem, which is the continued viability of structural error under a Crowley-type problem, see https://www.wisconsinappeals.net/?p=2538: “an invalid theory embedded in a general verdict now is subject to subject to harmless error analysis, Hedgpeth v. Pulido, 129 S.Ct. 530 (2008).” Subsequent authority, Skilling v. US, 130 S. Ct. 2896, 2934, reinforces the point(citing Hedgpeth for application of harmless-error analysis to general verdict based on alternative instructional theories of guilt, one of which embodies legally invalid theory). It is noteworthy that Crowley relied on the very authority (Yates, et al., 143 Wis. 2d at 334-35) subsequently limited, not to say, overruled, in Pulido. To the extent Crowley stands for “structural” error, that is, automatic reversal outside of traditional harmless-error analysis, it is hard to see how it hasn’t been KO’ed by Pulido.
I was aware that the USSC had a narrower view of prejudice in the Crowley situation (i.e., where a case is tried on alternative theories of guilt, one or more of which is factually or legally invalid, and the jury returns a general verdict). However, viewing the issue as one of harmless error rather than structural error would not, or at least should not, alter the outcome in most cases if harmless error analysis is properly applied.
The USSC in Neder was quite clear that, where the evidence is in dispute on a particular theory of liability, the courts cannot act as a superjury under the pretext of harmless error analysis. If one of the state’s theories is legally or factually invalid and the evidence is in dispute on the remaining, viable theories, a finding of harmlessness accordingly would be inappropriate because we cannot legitimately assume that either the jury as a whole (or each individual juror) necessarily based its general verdict of guilt on one of the legally valid/factually sufficient theories of guilt rather than just the invalid one.
Of course, I understand that the USSC has perceived some distinction between multi-theory cases where the invalid theory is factually supported but legally invalid and those in which the invalid theory is legally valid but factually unsupported. As I recall, the Court views only the former as subject to reversal. The theory is that we can count on the jury to identify factual insufficiency but not the legal invalidity of a theory presented to it.
However, that does not make sense if we apply the Neder harmlessness standard. If the prosecutor in argument, and apparently the judge in instructing, presented the theory as a valid one despite insufficient evidence to support it, we expect far too much of a jury to say that it necessarily detected the fact that the judge and prosecutor were wrong regarding the sufficiency of the evidence on one theory of prosecution. Accordingly, if the evidence was in dispute on the alternative, valid theories, one cannot legitimately say that the error of presenting the invalid theory was harmless beyond a reasonable doubt as required by Neder.