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  • WisBar News
    August 04, 2015

    Defendant Who Says Ex-Wife’s Death Was Accidental During Sex Wins Appeal

    Joe Forward

    Aug. 4, 2015 – Oscar Thomas has maintained that he killed his ex-wife accidentally while applying pressure to her neck during consensual sex. Recently, the U.S. Court of Appeals for the Seventh Circuit ruled that Thomas can continue to make his case.

    Thomas, convicted of intentional murder in Wisconsin, exhausted his appeals before filing a petition for writ of habeas corpus in the U.S. District Court for the Eastern District of Wisconsin, arguing his defense counsel was ineffective at trial.

    Specifically, Thomas said his defense attorney failed to consider or consult with a medical expert to review the Kenosha County medical examiner’s findings and conclusion that Thomas’s ex-wife, Joyce Oliver-Thomas, was intentionally strangled to death. Testimony from a pathologist, Thomas said, could have supported his case.

    The district court denied his habeas petition. But in Thomas v. Clements, No. 14-2539 (June 16, 2015), a three-judge panel for the Seventh Circuit Court of Appeals reversed, concluding the attorney was deficient and Thomas’s petition should have been granted.

    “It is undisputed that counsel did not reach out to or even consider talking to a pathology expert to review [the medical examiner’s] conclusion,” Judge Ann Claire Williams wrote. “In many cases, we would chalk up such a decision as strategic or tactical.”

    “But we cannot reach such a conclusion because counsel admitted his failure to reach out to an expert was not a conscious decision – he just did not think to do so.”

    The panel noted that a pathologist could have challenged perceived flaws, such as the fact that Oliver-Thomas did not have injuries to the neck consistent with strangulation.

    In post-conviction proceedings, a pathologist testified that there was “no evidence of manual strangulation,” although she could not rule out strangulation altogether.

    Thomas, who was divorced from Oliver-Thomas but still lived with her, said they occasionally had sex. On this occasion, Thomas admitted that he positioned his arm around her neck and she was asking him to stop but he did not mean to kill her.

    “Counsel knew there were no external marks on Oliver-Thomas’s neck and no signs of any fight or struggle between Thomas and Oliver-Thomas,” Judge Williams wrote. “Counsel should have known there was a reason to question intentional homicide.”

    The panel also ruled that Thomas was prejudiced by counsel’s deficiency, the second prong in determining whether a defendant’s right to effective counsel was violated.

    The panel noted that the state’s case was relatively weak on motive. Aside from the medical examiner’s report and testimony, the state said Thomas was motivated to kill Oliver-Thomas for money, concern that should would kick him out, and jealousy.

    A neighbor had also testified that she heard screaming for an hour, but the medical examiner said the strangulation would have taken four minutes to kill her.

    “Had there been an altercation, one may expect to find signs of a struggle after fifty-five minutes of conflict, but all parties admit there is no evidence of external marks on either Thomas or Oliver-Thomas,” wrote Williams. “The state presents no explanation for this.”

    The panel concluded that Thomas showed “a reasonable probability the outcome of the trial would have been different had counsel provided adequate representation.”

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