Wisconsin Court of Appeals issues decision for third time.

• Date: 13 July 2009
• Author: Ziemer, David

Byline: David Ziemer

In a rare procedural twist, the Wisconsin Court of Appeals has now issued its third opinion in the same case, after twice issuing earlier opinions only to later withdraw them.

While the end result is the same for the defendant, James D. Miller -- one conviction vacated, the other not -- the analysis is radically different.

In the first two opinions, the court held that, because the evidence was insufficient to support one of the convictions, his trial counsel was ineffective for failing to advise him that he could seek an instruction on a lesser-included offense.

In the latest opinion, the court held that, because the evidence was insufficient, the conviction must be vacated, without examining the ineffective assistance issue.

The court concluded that a sufficiency of the evidence claim is a constitutional issue that can be raised directly in a sec...