State of Wisconsin, Plaintiff-Respondent v. Ginger M. Breitzman, Defendant-Appellant-Petitioner

Summary

The Wisconsin Supreme Court affirmed the denial of Ginger Breitzman's postconviction motion, holding her trial counsel was not ineffective for (1) failing to move to dismiss the disorderly conduct charge on free speech grounds, because whether profane conduct that tends to cause or provoke a disturbance is protected speech is unsettled law; (2) advancing a reasonable parental discipline theory in opening remarks inconsistent with her planned denial of the charged strikes, because the theory was rationally based on discussions with Breitzman and constituted reasonable trial strategy; and (3) failing to object to other-acts evidence, because that too was reasonable strategy. Because counsel was not deficient, the court declined to reach prejudice under Strickland and expressly reserved whether profane speech is constitutionally protected, as no facial or as-applied challenge to Wis. Stat. § 947.01 was raised. Justice Abrahamson concurred, stressing the decision's narrow scope and criticizing the 'unsettled law' doctrine as insufficiently protective of the right to effective counsel.