The Fate of Sixth-Amendment Arguments

Given the wide array of rights guaranteed by the Sixth Amendment,[1] it should occasion no surprise that defendants regularly invoke them in cases reaching the Wisconsin Supreme Court.  So far this term, the justices have two such cases pending—State v. LeMere (ineffective assistance of counsel) and State v. Lagrone (right to testify)—and they may grant additional Sixth-Amendment petitions in the months to come.

What chance do defendants have with their Sixth-Amendment arguments?  While factors such as the unique details of cases and periodic changes in the court’s composition limit the precision of predictions, a look at the court’s reaction to Sixth-Amendment arguments in recent years may help clarify the odds of success for the Sixth-Amendment appeals in LeMere and Lagrone.

We’ll begin with the most recent seven terms (2008-09 through 2014-15), a period in which the court’s composition remained unchanged, and all of the justices except for the late Justice Crooks are still on the bench.  For this period, I’ve identified 34 cases with Sixth-Amendment issues, and in only 12% of these (4/34) did a majority of justices accept the Sixth-Amendment arguments presented to them.[2]  This percentage is considerably lower than that for the preceding 13 terms (1995-96 through 2007-08), when a majority accepted Sixth-Amendment claims nearly twice as frequently—in 29% of such cases (15/51).[3]

Sixth-Amendment data also invite comparison with a recent SCOWstats post on Fourth-Amendment casesFor one thing, although Sixth-Amendment arguments have been far from a safe bet, especially in recent years, the odds of success are not as bleak as those for Fourth-Amendment defenses, which experienced a 7% success rate for 2008-09 through 2013-14,[4] and 12% for 1995-96 through 2007-08.

Comparing the voting records of individual justices in Fourth-Amendment and Sixth-Amendment cases (Tables 1 and 2), we encounter some predictable results, but also some surprises.  Surely no court watcher would be taken aback to discover in Table 2 that Justices Abrahamson and Bradley accepted Sixth-Amendment defenses over half of the time, while Justices Roggensack, Ziegler, and Gableman extended a much chillier reception to the same claims.  The gulf between the two sets of justices is not quite as vast as the chasm evident in Table 1 for Fourth-Amendment cases, but it is still difficult to stand on one side of the Sixth-Amendment divide and see the other.

Following a recent post titledJustice Crooks, A Swing Vote?,” there may be fewer raised eyebrows upon noticing that Justice Prosser accepted Sixth-Amendment as well as Fourth-Amendment defenses more frequently than did Justice Crooks.  The difference was greater for Fourth-Amendment arguments, but the fact that in both categories of criminal cases Justice Prosser posted the higher percentage is interesting in view of the fact that Justice Crooks was often labeled the court’s “moderate” among the rest of the current justices.

Table 1.  Percentage of Fourth-Amendment Cases in which Individual Justices Favored the Fourth-Amendment Arguments Presented to them[5]

Abrahamson   72% (58/81)
Butler                67% (8/12)
A. Bradley        63% (50/80)
Bablitch            33% (12/36)
Geske                20% (2/10)
Prosser             18% (12/68)
Sykes                  8% (2/25)
Steinmetz          8% (1/13)
Crooks                7% (5/76)
Ziegler                6% (2/35)
Wilcox                4% (2/46)
Gableman          3% (1/30)
Roggensack       2% (1/44)

Table 2.  Percentage of Sixth-Amendment Cases in which Individual Justices Favored the Sixth-Amendment Arguments Presented to them

Geske                67% (6/9)
Abrahamson   61% (45/74)
A.Bradley         53% (40/76)
Bablitch            50% (14/28)
Butler                44% (7/16)
Sykes                 41% (7/17)
Steinmetz        36% (5/14)
Prosser             24% (17/72)
Crooks              21% (17/81)
Wilcox              21% (10/47)
Roggensack      11% (6/55)
Ziegler                5% (2/38)
Gableman          3% (1/32)

As for surprises, perhaps the largest comes upon spotting Justice Geske atop the Sixth-Amendment table, which indicates that she accepted 67% of these defenses, in contrast to only 20% of the Fourth-Amendment arguments that she heard.  Indeed, every one of the justices who might be regarded by today’s measure as a “moderate” or a “moderate conservative” accepted Sixth-Amendment claims more readily than Fourth-Amendment claims—and the difference was often dramatic.  In addition to Justice Geske, the most striking examples are Justice Sykes (41% Sixth Amendment, 8% Fourth Amendment); Justice Steinmetz (36% and 8%); Justice Wilcox (21% and 4%); and Justice Crooks (21% and 7%).

Meanwhile, moving in the opposite direction (though still near the top of the table), the three most liberal justices (Abrahamson, Bradley, and Butler) proved to be less receptive to Sixth-Amendment defenses than to those invoking the Fourth Amendment.  Put another way, the enormous gap between Justices Butler and Sykes in Fourth Amendment cases all but disappears in the Sixth-Amendment table.  Only for the most conservative justices, whose percentages do not range far above zero in either table, is there little change.

One current member of the court is missing.  Justice Rebecca Bradley, recently appointed to replace Justice Crooks, has yet to record a vote in any case this term, leaving it uncertain where she will reside along the voting spectrums outlined in this and other SCOWstats posts.  For now, the most that one can say regarding Sixth-Amendment cases is that she participated in two during her several months of service as an appellate court judge.[6]  In both instances—one, a per curiam decision, and the other an unpublished decision written by Judge Kitty Brennan—the court rejected the defendants’ Sixth-Amendment arguments.  Thus, as James Lagrone awaits a decision on his right-to-testify claim, he is doubtless wondering whether Justice Bradley will participate in his case, and, if so, whether her record as an appellate court judge represents a sample of sufficient size to accurately predict her vote following her move to Madison.[7]


[1] The Sixth Amendment (and Article 1, Section 7 of Wisconsin’s constitution) guarantee criminal defendants: (1) the right to a public trial without unnecessary delay; (2) the right to a trial by an impartial jury; (3) the right to know the nature of the charges; (4) the right to know one’s accuser and confront adverse witnesses; (5) the right to testify and to present witnesses in one’s favor; and (6) the right to a lawyer.

[2] To locate cases, I searched decisions for the words “Sixth Amendment.”  I then checked each decision in the search results to make sure that a Sixth-Amendment argument was actually advanced (as opposed to, say, a parenthetical mention of the amendment that did not pertain directly to the argument at hand).  When a case included multiple issues, I focused only on those involving the Sixth Amendment.

In rare instances, a majority opinion presented a ruling on a Sixth-Amendment argument together with other arguments, while a dissenting opinion addressed only the non-Sixth-Amendment arguments.  Here, I counted the justices in the majority as voting on the Sixth-Amendment argument but did not record the votes of the dissenting justices (rather than attempt to interpret their silence on the Sixth-Amendment issue).  In similar fashion, a small number of concurring opinions sided with the majority without addressing the Sixth-Amendment issue before the court.  When this occurred, I did not include the concurring opinion in the calculations.

If a decision concluded that the Wisconsin Constitution affords greater protection than does the Sixth Amendment to the US Constitution, I included the case.

Occasionally the court agreed that a petitioner’s Sixth-Amendment rights had been violated, but decided that the error was “harmless”—thereby declining to overturn the petitioner’s conviction.  Such outcomes are categorized here as “unfavorable” toward the Sixth-Amendment argument presented by the petitioner.

I generally excluded a small number of cases that fell into certain gray areas such as the three examples that follow.  (1) On rare occasions a decision stated that if certain “facts” were indeed true, the defendant might be able to prevail on a Sixth-Amendment claim.  However, being uncertain on this score, the court remanded the case for a more thorough assessment of the “facts” in question.  (2) In a few cases, a defendant argued ineffective assistance of counsel (a Sixth-Amendment issue), but the dispute before the court involved only the proper time or forum for such a determination, with no assessment of the validity of the argument itself.  (3) Just as infrequently, both parties briefed a Sixth-Amendment issue, but the majority opinion decided the case on other grounds.

Opinions may differ reasonably on how to handle one gray area or another, and there will always be a few cases whose specific features frustrate easy categorization, regardless of the gray-area procedure adopted.  However, the number of borderline cases is small enough that any judicious gray-area approach will have little or no effect on the percentages presented above.

All of the decisions may be found on the court system’s website.

[3] By far the most common Sixth-Amendment claim at the Supreme Court has involved the defendant’s right to a lawyer, often phrased as a contention that counsel was ineffective.  Justices sided with these arguments in 16% of such cases (3/19) in 2008-09 through 2014-15 and at nearly double that rate—31% (8/26)—in 1995-96 through 2007-08.

[4] The Fourth-Amendment post appeared in June, 2015, and therefore the Fourth-Amendment data presented here and in Table 1 do not cover the 2014-15 term.

[5] Justice Roland Day is not included in Tables 1 and 2 because the data cover only his last term on the bench (1995-96).

[6] State v. Mckee (2014AP2176-CR) and State v. Brown (2015AP522-CR)

[7] In State v. LeMere, briefing and oral argument took place before Rebecca Bradley joined the Supreme Court, and thus it seems unlikely that her voice will be heard in the decision.

Justice Abrahamson’s Concerns Over the 2015-16 Docket

In September, when the Supreme Court issued an order granting review in State v. Salinas (2013AP2686), readers who turned to the second page were likely surprised by an unusual comment added by Justice Abrahamson, who expressed apprehension over the state of affairs on two fronts: (1) the number of cases on the court’s calendar for the 2015-16 term; and (2) the percentage of these cases that presented unpublished decisions from the court of appeals.

Justice Abrahamson’s unease invites scrutiny of various sorts—one being the question of whether these developments represent departures from the court’s practice in previous terms.  Here is ground on which SCOWstats may be of service, for we can compare figures for 2015-16 with data from the previous twenty terms and determine to what extent, if any, 2015-16 marks a departure from the norm established over the last two decades.

The Supreme Court customarily holds a petitions conference once a month, as it did on October 7, where the justices decide which cases to accept for review.  Given that the next conference does not appear on their calendar until the following month, October will be our cut-off point for each of the twenty terms to be compared to 2015-16.  In other words, I will examine the cases decided in each of the previous terms and isolate just those that had been accepted for review by the end of October of the term in question.[1]  These cases can then be compared to the cases on the Supreme Court’s docket so far in 2015-16, allowing us to determine whether the current term is unusual regarding the points raised by Justice Abrahamson.

First, let’s take the matter of the number of cases in the pipeline, which prompted Justice Abrahamson to worry that “[o]ur November oral argument calendar has only one case scheduled.  The possibility exists that no cases will be ready for the December oral argument calendar.”  As shown in Table 1 the court now has 28 cases pending, at various stages on the road to a decision.[2]  This is indeed fewer than the number for any of the preceding twenty terms in the table—and well below the twenty-term average of 58 cases that had been accepted for review no later than the end of October.  For the period 2008-09 through 2014-15 (during which the same seven justices served on the court), the average was 42 cases, and it was 66 cases over the thirteen terms before that (1995-96 through 2007-08).  The 2012-13 term, when only 31 cases were pending by the end of October, is the closest match in this regard to 2015-16.  As it turned out, when the 2012-13 term came to an end, the justices had decided only 46 cases, the lowest total in the twenty-year period.[3]  Next summer, it will be interesting to see how the final total for 2015-16 compares.

Table 1--Number of cases on the docket by the end of October

Justice Abrahamson also voiced misgivings over the acceptance for review of unpublished court of appeals decisions.  She felt that they represented far too large a share of the cases on the court’s calendar, and she seemed especially troubled by what she regarded as an excessively high number of per curiam decisions from the court of appeals.  One can infer that she deems at least some of these cases as undeserving of review, for she made a point of quoting from the “Wisconsin Court of Appeals Internal Operating Procedures” to observe that per curiam decisions “do not involve ‘new or unsettled questions of general importance.’”

So, how does 2015-16 compare with previous terms regarding per curiam decisions from the court of appeals?  Table 2 indicates that, through the end of October, per curiam decisions represented a larger share (25%) of the cases on the court’s calendar in 2015-16 than for any individual term in the preceding twenty years.  Viewing these twenty years as a whole, we find that per curiam decisions accounted on average for only 9% of the cases on the court’s docket by the end of October.  For the earliest thirteen years under consideration (1995-96 through 2007-08), the average was slightly lower—7.7% of cases had been per curiam decisions at the court of appeals—before climbing to 12.5% during the period 2008-09 through 2014-15.[4]

Table 2--Percentage of cases accepted each year that were per curiam decisions

(Click here for a table that contains several additional columns, including one showing the percentage of cases accounted for by published decisions from the court of appeals—only 32% of all cases accepted for review in 2015-16, compared to an average of 51% of cases accepted for review during the preceding twenty terms.)

To be sure, questions remain that elude statistical resolution.   For instance, opinions will vary over the extent to which one should be disturbed by the unusually small number of petitions granted and the substantial percentage of court of appeals per curiam decisions on the Supreme Court’s docket.  One might also wonder why these differences with past averages are occurring in 2015-16.  At the end of her comment on the order granting review in Salinas (itself a per curiam decision from the court of appeals), Justice Abrahamson suggested indirectly, by means of a quotation from Michael Heffernan’s Appellate Practice and Procedure in Wisconsin, that the Supreme Court, after rejecting too many worthy cases in previous months, might now be scrambling to bulk up its undernourished calendar with cases that do not always warrant such attention.  Whatever the merits of this explanation, however, it leaves open the question of why so few petitions for review were granted in the months prior to September.  This, after all, is what led to the shortage that now worries Justice Abrahamson.

Perhaps the meager harvest derives from recent turmoil on the court, though there may well be other plausible explanations.  I would be grateful to benefit from knowledgeable readers who can speculate on reasons for the small number of cases, the large share of per curiam decisions—and how much cause for concern exists on either of these counts.

[1] This information is available on the court system’s website.

[2] This includes cases awaiting decision, awaiting oral argument, or still in the briefing stage.  There is a slight chance that no decision will be issued for one or another of these cases during the 2015-16 term, but this possibility is sufficiently remote (especially for multiple cases) that it does not imperil the general findings that follow.

[3] Data for 2012-13 is available on SCOWstats.

[4] The averages are weighted in order to account for the varying number of cases on the court’s calendar from one year to the next.

Justice Crooks, a Swing Vote?

Table 1

“Supreme Court Justice Patrick Crooks retiring, taking swing vote with him.”  So announced the headline of a post on today, reporting on Justice Crooks’s statement that he would not seek re-election.  The headline’s wording doubtless … [Continue reading]

Wisconsin Supreme Court Statistics, 1993-1994

These tables are derived from information contained in 70 Wisconsin Supreme Court decisions filed between September 1, 1993, and August 31, 1994.  The total of 70 decisions does not include rulings arising from such undertakings as (1) disciplinary … [Continue reading]

Swelling Supreme Court Decisions: An Update for 2014-15

Table 2--average length of opinion per justice thru 2014-15

A recent post on the rapidly increasing length of Wisconsin Supreme Court decisions—whose average page count has doubled since the mid-1990s—ended with a hypothesis to be tested following the 2014-15 term.  More specifically, in light of the new … [Continue reading]

Wisconsin Supreme Court Statistics, 1994-1995

These tables are derived from information contained in 73 Wisconsin Supreme Court decisions filed between September 1, 1994, and August 31, 1995.  The total of 73 decisions does not include rulings arising from such undertakings as (1) disciplinary … [Continue reading]

The Supreme Court’s 2014-15 Term: Some Initial Observations

Table 1--Decisions by vote split--2013-14 and 2014-15

Now that the Supreme Court has issued its last substantive decision for the 2014-15 term, researchers who examine the court’s work may encounter some findings that they had not anticipated. Most surprising, given the frequent reports of turmoil … [Continue reading]

Wisconsin Supreme Court Statistics, 2014-2015

These tables are derived from information contained in 53 Wisconsin Supreme Court decisions filed between September 1, 2014, and the end of the court’s term in July, 2015.[1]  The total of 53 decisions does not include the following items contained … [Continue reading]

How Frequently do Justices Join Concurrences and Dissents Written by their Colleagues?

Table 5--tinted

A reader (who prefers not to be acknowledged) suggested the title’s question, prompting me to cast a net for pertinent information contained in the decisions published on the court system’s website.  We’ll focus on the six terms during which the … [Continue reading]

How Effective are Fourth-Amendment Arguments in the Wisconsin Supreme Court?

In Custodian of Records v. State (2004), the Wisconsin Supreme Court cautioned that the “power wielded by the government is considerable,” creating “a potential for infringing on Fourth Amendment and other constitutional rights.”  This was not a … [Continue reading]