June 4, 2018 – Deficiency for one is not deficiency for all, the Wisconsin Supreme Court has ruled. That is, circuit courts may conclude that a lawyer’s deficient performance prejudiced only one of multiple convictions in a multiple-count trial, not all of them.

The state charged Lamont Sholar on six counts, including child and human trafficking, soliciting a child for prostitution, and second-degree sexual assault by use of force. The case proceeded to trial and two victims, 13-year-old girls, testified about how Sholar prostituted them and other girls in a sex trafficking ring near the Milwaukee Airport.

The jury also learned that the phone number listed in ads on the “Backpage” classified website matched the phone in Sholar’s possession when he was arrested, and the state presented other evidence that Sholar was the ringleader of the sex trafficking operation.

Sholar denied involvement and said his friend of 20 years was the ringleader and he only helped out taking pictures of the girls when his friend’s phone broke.

During deliberations concerning Sholar’s charges, the jury asked for Sholar’s phone records and the phone records of one of the victims. A detective had testified about the contents of a computer and various cell phone devices that evidenced the scheme.

Sholar’s lawyer did not object to the exhibit that included the texts, photos, and call logs from the phone the state argued was Sholar’s phone. The exhibit containing one of the victims’ phone records was also delivered to the jury deliberation room, upon request.

The jury found Sholar guilty on all six counts and he was sentenced. Sholar filed a postconviction motion, seeking a new trial on the basis of ineffective assistance of counsel. He said his lawyer should have objected to the jury’s requests for full exhibits, which contained references to drug deals and other illegal activity (other acts evidence).

The circuit court denied Sholar’s motion, without a hearing, concluding that parts of one exhibit should have been excluded but Sholar did not prove the error was prejudicial.

The appeals court reversed and ordered the circuit court to conduct what’s called a Machner hearing, at which his trial counsel testified that he filed a motion to suppress Sholar’s cell phone but it was denied, so there appeared to be no basis to object.

After the hearing, the circuit court found no deficiency with the trial counsel’s strategy as related to sex trafficking charges. But the judge said a failure to object to the jury’s review of all Sholar’s phone records – which included photos the trial judge considered “child porn” – may have impacted the sexual assault charge by inflaming the jury.

Thus, the circuit court vacated the sexual assault charge. Sholar appealed, seeking to have all convictions vacated. The appeals court upheld the circuit court decision.

In State v. Sholar, 2018 WI 53 (May 18, 2018), the Wisconsin Supreme Court (6-1) affirmed, concluding the circuit court could find deficiency as to one count but not all.

“There is no basis in law or logic to require a new trial on all six convictions if the error affected only one,” wrote Justice Rebecca Bradley. “The circuit court gave seven legally valid and factually logical reasons supporting the split result. We ratify each of them.”

The six-justice majority noted that Sholar had to prove the exhibit prejudiced his defense. That is, but for the jury seeing the contents, there was a reasonable probability the jury would doubt his guilt. But the majority noted all the other evidence against him.

“One witness after the next told the same story, with specific details corroborating other witnesses,” Justice R. Bradley wrote. “The physical and forensic evidence including the photos, the Backpage ads, the metadata, and the Econolodge records reinforced the state’s case. … Sholar advances nothing to shake our confidence in these convictions.”

The majority also rejected Sholar’s argument that the state forfeited its right to argue that Sholar was not prejudiced. It noted that the appeals court did not decide the merits of the prejudice prong, only that Sholar was entitled to a full Machner hearing.

Dissent

Justice Shirley Abrahamson was the lone dissenter. She said submitting the full exhibit that contained photos purporting to come from Sholar’s phone was prejudicial.

“It is hard to imagine anything more prejudicial than submitting child pornography extracted from the defendant’s phone to the jury for its consideration during deliberations,” Justice Abrahamson wrote in a separate writing.

“Such inflammatory evidence creates a legitimate concern that the jury convicted Sholar not because the State proved every element of the charged crimes beyond a reasonable doubt, but instead to punish Sholar for being a bad man with child pornography on his phone.” She would have remanded for another Machner hearing.