Jan. 27, 2023 – A defendant whose attorney failed to contact two alibi witnesses is entitled to a hearing on his claim for ineffective assistance of counsel, the Wisconsin Supreme Court has ruled.
In State v. Jackson, 2023 WI 3 (Jan. 20, 2023), the supreme court unanimously held that testimony of the alibi witnesses, if true, would meet the standard for an ineffective assistance of counsel claim.
Justice Rebecca Dallet wrote the unanimous (6-0) opinion. Justice Patience Roggensack did not participate.
On the night of March 11, 2015, somebody shot and killed Richard King in front of the duplex where he lived in Milwaukee.
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.
King and his wife, C.W., did not get along with Gerald and Tiffany Tucker, the couple who lived upstairs.
On the day King was killed, he found broken glass near his car and got upset. King and his friend Andre Dorsey confronted the Tuckers with a gun.
The Tuckers went into their apartment, where Tiffany called a friend, Larry Jackson. Tiffany asked Jackson to come over.
Later on March 11, King confronted Gerald Tucker when Tucker stepped outside to smoke a cigarette. Dorsey then saw a man with a medium complexion walk up to Tucker; Dorsey later identified the man as Jackson.
Tucker and Jackson whispered to each other as they walked back into the duplex. Within seconds, Dorsey heard a blast of gunfire. King dropped to the ground.
Through a crack in a doorway, Dorsey saw a hand with a light complexion pointing a gun at him. Two shots rang out.
A Borrowed Pistol
The police arrested Gerald Tucker as a suspect in King’s killing. He told the police that he didn’t know who shot King.
Several months later, after Tucker learned that police had recovered the murder weapon, he told the police that Jackson shot King.
The murder weapon was a pistol that belonged to Joe Brown, a friend of Jackson’s. Brown testified that on the day King was shot, he’d loaned the gun to Jackson.
Brown also testified that between 30 and 45 minutes after he’d loaned the gun to Jackson, Jackson came back with rubber gloves and the gun, which was missing several rounds.
Brown and Jackson boiled the rubber gloves, to destroy any evidence on them. Jackson then changed clothes and left.
The next day Brown and Jackson met. Brown testified that Jackson admitted shooting King.
Convicted Despite Alibi
The Milwaukee County District Attorney charged Jackson with first-degree intentional homicide and felon in possession of a firearm. At trial, Jackson claimed he was at his mother’s house when King was shot.
The only alibi witness called by Jackson’s lawyer was Jackson’s mother, Carol. She testified that Jackson was at her house all night on March 11, 2015, because she would have heard her alarm system go off if he’d opened any of the doors to leave.
The jury found Jackson guilty on both counts.
Jackson filed a motion for post-conviction relief, arguing that his attorney provided ineffective assistance of counsel by failing to contact two potential alibi witnesses – JaNikka Marsh and Crystal Jackson.
Each woman submitted an affidavit stating that:
she was with Jackson on the night King was shot;
she was not contacted by Jackson’s attorney; and
she would have testified at trial if called to do so.
Jackson also argued that his attorney was ineffective because the attorney: 1) failed to interview Carol Jackson to prep her for trial; and 2) incorrectly advised Jackson that state law required him to testify first.
Motion Denied with No Hearing
The circuit court denied Jackson’s motion for post-conviction relief without holding a Machner hearing. The Wisconsin Court of Appeals affirmed. Jackson appealed.
Standard Met for Alibi Witnesses
Justice Dallet explained that to prevail on a claim of ineffective assistance of counsel, a defendant must show that: 1) the attorney’s performance was deficient; and 2) the defendant was prejudiced by the deficient performance.
Dallet explained that Jackson would be entitled to a Machner hearing only if his motion alleged sufficient material and non-conclusory facts that, if true, would meet the two prongs of the ineffective assistance of counsel standard.
Justice Dallet concluded that Jackson was entitled to a Machner hearing because of the contents of the affidavits submitted by the two alibi witnesses who were not contacted by Jackson’s attorney.
Dallet pointed out that according to Marsh’s affidavit, Marsh and Jackson arrived at Carol’s house sometime after 5 p.m. on the night King was killed and stayed there until 9:30 p.m., when the two left to take Marsh to her job.
According to Crystal Jackson’s affidavit, Justice Dallet noted, Crystal was watching TV at Carol’s house when Marsh and Jackson arrived, and the couple stayed there until they left to take Marsh to work.
“We have little trouble concluding that, if these facts are true, Jackson’s motion sufficiently alleges a claim of ineffective assistance of counsel,” Dallet wrote.
The state argued that given the overwhelming evidence against Jackson, there was no probability the result would have been different if Jackson’s attorney had called the Marsh and Crystal Jackson to testify.
But Justice Dallet concluded that the state’s case against Jackson was based on testimony from witnesses with credibility problems:
Tucker was initially arrested for King’s murder, and had a clearer motive to kill King given their dispute;
Brown was a three-time convicted felon who was facing 15 years in prison for his possession of the murder weapon;
Dorsey – who was a felon — identified Jackson as the person who entered the duplex with Tucker but was standing 15 feet away from King at the time of the shooting and only saw the hand of the shooter.
Remand for Hearing on Alibi Witnesses
Dallet concluded that Jackson’s other claims failed to meet the standard for ineffective assistance of counsel.
The supreme court remanded the case to the circuit court and ordered that court to grant Jackson a hearing on his alibi witnesses claim.