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    Attorney’s Conflict of Interest Triggers Reversal in Incest Case

    Joe Forward
    Legal Writer

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    The defense attorney created a conflict of interest when he advised his client's sister to speak with police officers who accused the sister of lying on the stand to protect her brother.

    Feb. 25, 2013 – A man convicted for sexually assaulting his own daughter will get a new trial because his attorney also represented the man’s sister, a state appeals court has ruled.

    Attorney Ronald Benevidas represented Jesus Villarreal on charges of incest. Villarreal was accused of molesting his daughter. The first trial resulted in a mistrial.

    After the second trial, Villarreal was convicted.

    Villarreal’s sister, Sara Villarreal, was a defense witness in both cases. She was accused of perjury after the first trial, and Benevidas agreed to represent her without obtaining a conflict of interest waiver from Villarreal, who filed a postconviction motion for relief.

    The circuit court denied the motion. But in State v. Villarreal, 2011AP998-CR (Feb. 21, 2013), the District IV Wisconsin Court of Appeals reversed, ruling that Villarreal is entitled to a new trial even though he did not object to the dual representation at the second trial.

    “When a defendant has not raised an objection at trial to an attorney’s potential conflict of interest, the mere possibility of a conflict is not sufficient to establish a constitutional violation. In such situations, to establish a constitutional violation the defendant must show that ‘an actual conflict of interest adversely affected his lawyer’s performance,’” wrote Judge Gary Sherman.

    Villarreal’s sister testified that she overheard her niece, the alleged victim, say that individuals who accuse parents of sexual or emotional abuse can get money from the government. An investigating officer accused Villarreal’s sister of lying about this conversation.

    “We agree with Villarreal that, when the investigating officer asked to question Sara as part of an investigation into whether Sara committed perjury at Villarreal’s first trial, and Benavidas advised her to meet with officer, Benavidas had an actual conflict of interest that adversely affected his representation of Villarreal,” Judge Sherman wrote.

    Advising Sara Villarreal to talk with police had serious potential downside for Villarreal, the three-judge panel explained, because it opened her story to inconsistencies.

    “Whether Sara was telling the truth or not, there was likely to be differences each time she told her story, especially in light of the fact that the final telling of the story took place nearly a year and a half after the alleged conversation was overheard,” Sherman explained.

    The appeals panel noted that the interview produced an inconsistency, highlighted by the prosecutor, which impacted Sara Villarreal’s credibility at the second trial.