April 12, 2017 – The Wisconsin Supreme Court has ruled that a former corrections officer convicted of sexually assaulting a child won’t receive a new trial, rejecting the argument that the defendant received ineffective assistance of counsel.
A state appeals court granted a new trial to Stanley Maday Jr., convicted of sexually assaulting an 11-year old girl. The appeals court concluded that defense counsel failed to make critical objections to questions the prosecutor asked a social worker who interviewed the girl, and should not have withdrawn another objection on evidence.
But in State v. Maday, 2017 WI 28 (April 5, 2017), a 5-2 majority upheld the conviction, concluding Maday’s lawyer was not deficient in providing a defense.
Maday was charged with sexual assault of a child in 2011 after the girl made allegations in a letter written to her mother. The letter explained how Maday, the father of the victim’s friend, sexually assaulted her when she slept over at her friend’s house.
The victim had noted that she was scared of Maday and pretended to sleep while he assaulted her because she was afraid he would hurt her if she woke up.
The police engaged a social worker to assess the allegations through a forensic interview. The social worker used a technique called “cognitive graphic interview.”
Maday’s defense lawyer used the videotaped interview to highlight inconsistencies in the girl’s court testimony and the allegations detailed to the social worker. Addressing inconsistencies, the girl said she remembered new things when forced to think about it.
The social worker testified about the cognitive graphic interview process, which is designed to root out false allegations that occur if children are coached or prompted to answer leading questions and can help determine if the allegations are consistent. The interview also helps determine if the child knows the difference between truths and lies.
The prosecutor asked the social worker if there was an indication that the alleged victim had been coached or was not being honest, and the social worker said no. Defense counsel did not object to those questions. Maday also testified.
He read from work records as sergeant at Columbia Correctional Institution to cast doubt on whether he was physically present during the times the victim said the assaults occurred at Maday’s home. The prosecutor cross-examined Maday to note that Maday had received special job-related training on weapons and the use of force.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
Defense counsel objected to the question about training as irrelevant but withdrew the objection. The judge said the alleged victim, who said she was afraid of Maday, was probably aware that Maday received this type of training as a corrections officer.
In closing, the prosecutor mentioned how the social worker had seen no indication that the accuser was coached or lying, and noted that Maday was trained in weapons and force, suggesting that the girl’s fears about stopping the assaults “were very real.”
The jury found Maday guilty. His concurrent sentences amounted to 25 years in prison with 8 years of extended supervision. Maday sought postconviction relief.
Majority Upholds Conviction
The five-justice majority reversed the appeals court, which had ordered a new trial on the basis that Maday received ineffective assistance of counsel.
The appeals court determined that the social worker had vouched for the victim’s credibility after the prosecutor asked if she thought the victim lied or was coached in any way, defense counsel should have objected, and Maday was prejudiced by the error.
Under Wisconsin’s Haseltine rule, a witness cannot testify as to whether a competent person was telling the truth because the jury is the sole judge of credibility.
When the witness is a child, the majority acknowledged that “statements of subjective opinion about the child’s truthfulness are not to be received into evidence,” only observations that forensic interviewers make about couching and deceit.
The prosecutor asked the social worker who interviewed the girl, identified as K.L.: “Was there any indication that [K.L] was not being honest during her interview with you?” The prosecutor also asked: “Was there any indication that K.L. had been coached in any way during her interview?" The majority honed in on the term “indication.”
“By limiting it to her observations of indications during the cognitive graphic interview, Gainey’s testimony in response to these questions did not provide an opinion about the truth of K.L.’s allegations,” wrote Justice Michael Gableman.
“Rather, Gainey provided an opinion about indications she is trained to observe during a cognitive graphic interview, an interview technique developed specially for dealing with allegations of abuse made by children.”
The majority said the social worker did not provide a subjective opinion about whether the girl was telling the truth when she answered “no” to the prosecutor’s question about whether there was any “indication” that she was not being honest.
“Gainey’s testimony may have assisted the jury in assessing the credibility of K.L.’s allegations and did not usurp the jury’s role as the sole judge of credibility of the witness,” wrote Justice Gableman.
The majority also ruled that the social worker provided a sufficient contextual basis to testify about indications of coaching, also a requirement under Wisconsin law.
Thus, the defense lawyer did not provide ineffective assistance of counsel in failing to object to the prosecutor’s questions, the majority ruled. And withdrawing the objection related to weapons and the use of force, suggestive of the girl’s fear, did not amount to ineffective assistance, the majority ruled, because it did not prejudice Maday.
Even assuming without deciding that defense counsel’s performance was deficient on this point, the majority found “no reason why our confidence in the outcome should be undermined,” which is required to show that the defendant was prejudiced.
Concurrence / Dissent
Justice Rebecca Bradley concurred but noted that the case “should have been analyzed only under the ineffective assistance test” and “the third factor the majority uses to support its Haseltine analysis signals a change in the law where none was intended."
The majority had noted that a social worker’s testimony “may assist the jury, but that is a Wis. Stat. section 907.02 question, relating to testimony by experts. My concern is that the majority’s use of the ‘assist the jury’ factor may suggest to the bench and bar that this court has changed the Haseltine test. It has not,” Justice R. Bradley wrote.
Justice Ann Walsh Bradley wrote a 19-page dissent, joined by Justice Shirley Abrahamson. They would have affirmed the appeals court and granted a new trial.
“At issue is whether a social worker’s expert testimony at trial impermissibly vouched for the credibility of a child witness,” Justice A.W. Bradley wrote. “In reaching its conclusion, the majority misconstrues Wisconsin precedent, distorting and expending the limited exceptions for expert testimony until they swallow the rule.”
The dissent concluded that the social worker’s testimony violated the Haseltine rule because it “impermissibly vouched for the credibility of the child witness.” Testimony about indications of coaching was also impermissible, the dissent noted, and Maday received ineffective assistance of counsel because the defense lawyer did not object.
The whole case hinged on the child's and Maday’s credibility, Justice A.W. Bradley explained. “This scenario … enhances the risk of prejudice,” she wrote.