March 29, 2022 – The Wisconsin Court of Appeals has ruled that a defense lawyer’s failure to request a copy of a child protective services (CPS) report constituted ineffective assistance of counsel.
In State v. Stroik, 2021AP447 (Feb. 24, 2022), the Court of Appeals District IV held that the defense lawyer’s failure to investigate the report, which contained evidence that the victim made a prior unsubstantiated assault allegation, was deficient.
Allegation of Assault
In the summer of 2016, the Portage County CPS agency launched an investigation of an alleged sexual assault on a five-year-old girl, Amy.
Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
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Amy’s father told CPS that Amy told him that Shane Stroik had touched her on her genitals after she urinated on the floor. At the time, Stroik was dating Amy’s mother, Laura.
When interviewed by the police, Stroik and Laura said that Amy had previously made an allegation of in appropriate touching against her cousin, an investigation that Laura said went nowhere.
After the investigation, the Portage County District Attorney charged Stroik with one count of first-degree sexual assault.
‘Very High Sex Drive’
During his opening statement, the prosecutor claimed that Stroik had “a very high sex drive” and “the presumption of course is that [he touched Amy] for a sexual purpose.”
At trial, the prosecutor asked Laura how often Stroik wanted to have sex with her. The prosecutor also mentioned Stroik’s sex drive during his closing argument.
Stroik’s lawyer did not object to the prosecutor’s statements or questions about Stroik’s sex drive. He did, however, address the issue in his closing statement.
When Amy testified, she appeared to have no clear memory of the alleged assault.
On re-direct by the prosecutor, Amy testified that she remembered telling a lady that Stroik had touched her genitals and that when she told the lady that, she was being truthful.
However, on cross-examination, Amy testified that she didn’t know where the alleged assault had occurred and didn’t know whether Stroik had touched her.
The jury convicted Stroik of first-degree sexual assault.
Stroik filed for post-conviction relief. He challenged his lawyer’s failure to object to the prosecutor’s statements and questions about his sex drive. The circuit court ruled that Stroik was not entitled to relief on that basis.
Stroik also requested that the court conduct an in camera review of a CPS report, compiled four months before his alleged assault on Amy was said to have occurred. Stroik claimed that the report likely contained evidence about Amy’s prior untruthful allegation of assault.
According to the report, Laura told a CPS employee that Amy said her nine-year-old cousin had touched her genitals approximately two weeks before. But when a CPS employee interviewed Amy, she denied that her cousin had touched her genitals.
Amy also told the CPS employee who interviewed her that her paternal grandfather had touched her genitals multiple times when they were sleeping in the same bed.
CPS classified the allegation about the cousin as unsubstantiated because of Amy’s denial and because there was no other evidence to back up her original allegation.
A Vague Memory
During the post-conviction hearing, Stroik’s lawyer told the circuit court that he “vaguely” remembered reading the police report in which Amy alleged that her cousin had assaulted her.
The lawyer also said he assumed that the trial court would not allow him to admit the CPS report, and said his trial strategy was to blame the grandfather for the assault that Amy had blamed on Stroik.
The circuit court released the CPS report to Stroik and the state under seal.
Stroik made a supplemental motion to his PCR motion and argued that his lawyer was ineffective by neglecting to seek the CPR report and introduce it into evidence. The circuit court denied the motion.
Closing Statement Cured Failure to Object
Writing for a three-judge panel, Judge Rachel Graham agreed with the circuit court’s ruling on the sex-drive statements and questioning.
The failure of Stroik’s lawyer to object to the sex drive evidence would only constitute ineffective assistance of counsel if it was not admissible and if he did nothing else to counter it, Judge Graham explained.
The sex drive evidence was inadmissible for any allowable purpose, Judge Graham wrote, because it was a propensity inference prohibited by section 904.04(1) and (2).
But Stroik’s lawyer countered the sex drive evidence with strong statements of his own during closing, Judge Graham explained.
“This is not a case in which counsel allowed inadmissible and prejudicial evidence to be admitted during the trial and did nothing to counter it,” Graham wrote.
Report was Admissible and Material
Judge Graham explained that the CPS report would have been admissible because it was evidence of a prior false allegation and was sufficient to support a reasonable person’s finding that the victim had made prior false allegations.
The appellate panel then reasoned that if Stroik’s lawyer had obtained the CPS report, he would have concluded that its contents were material to Stroik’s defense.
The circuit court’s ruling that the decision to seek the report was a strategic choice and therefore not deficient was clearly erroneous, Judge Graham explained.
“Counsel may have ‘assumed’ that ‘the [circuit court] would let [him] get it in,’ but without knowing what the CPS report contained, this assumption is unsupported by any reasonable professional judgment,” Judge Graham wrote.
Deciding to not seek out the report was not a reasonable strategic decision, Graham explained.
“The information from the CPS report would have provided a basis for the jury to find that Amy had made a similar allegation, also false, about a different male relative after allegedly being assaulted by her grandfather,” Judge Graham wrote.
Failure Prejudiced Stroik
The appellate panel held that the failure of Stroik’s lawyer to obtain the CPS report prejudiced Stroik.
“As a result of counsel’s deficient performance, they jury did not hear evidence that could have chipped away at these uniform accounts of Amy’s truthfulness by showing that, at least on one prior occasion, she may have made an untruthful report of sexual assault that was strikingly similar to the report she made about Stroik,” Judge Graham wrote.