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.

About Alan Ball

Alan Ball is a Professor of History at Marquette University in Milwaukee, WI.

SCOWstats offers numerical analysis of the voting by Wisconsin Supreme Court justices on diverse issues over the past 93 years.

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