May 27, 2010 – An attorney’s failure to investigate certain law or facts, if based on strategic trial decisions, may still be adjudged reasonable to discharge “ineffective assistance of counsel” claims, the Wisconsin Supreme Court recently held.
Under Strickland v. Washington, 466 U.S. 668 (1984), a determination that counsel was ineffective requires the defendant to prove counsel’s performance was deficient and the deficiency prejudiced the defense.
In State v. Carter, 2008AP1185-CR (May 25, 2010), the supreme court – in an opinion written by Justice Annette Kingsland Ziegler − held that a defense attorney's performance was not deficient despite a failure to pursue a certain theory. Even if it was deficient, the court held, it did not prejudice the defense.
Background
In 2006, Michael Carter was convicted of first-degree sexual assault of a child. He filed a post-conviction motion for a new trial, arguing that his trial counsel – Stephen Sargent – was ineffective. The circuit court denied the motion.
Specifically, Carter argued to the circuit court that “[Sargent] failed to introduce evidence that the five-year old victim was previously sexually assaulted, which would have provided an alternative explanation for her detailed sexual knowledge.”
The court of appeals agreed with Carter, concluding that Sargent’s performance was deficient because he failed to investigate whether a previous sexual assault did occur, and he did not review State v. Pulizzano, 155 Wis. 2d 633, 456 N.W.2d 325 (1990), which creates a narrow exception to the general rule of inadmissibility of evidence concerning a victim’s sexual history.
The appeals court remanded the case to the circuit court to determine whether Carter was prejudiced by the deficient performance, the second prong of Strickland. The state petitioned the supreme court for review of the appeals court decision.
Performance deficient?
Evidence suggested that the five-year-old child may have been sexually assaulted on a previous occasion. Such evidence, Carter argued, may have explained the victim’s sexual knowledge when questioned by police.
Sargent informed the circuit court that such evidence would not be pursued or presented because the prosecutor would likely object, the evidence was not relevant, and such evidence would build the jury’s sympathy for the child.
Instead, Sargent chose to attack the credibility of the child through her mother, Carter’s girlfriend, to establish there was a breakdown in the relationship and the mother used the child as a manipulative tool in the breakup. This strategy was evident at trial.
This strategy did not require Sargent to investigate the alleged prior sexual assault. It also did not require him to review Pulizzano, the narrow exception to inadmissibility of sexual history.
Considering all the circumstances, the supreme court held, “Sargent’s performance was not deficient because his strategic decision not to present evidence of the previous sexual assault was objectively reasonable.” Citing Strickland, the court stated that “strategic decisions made after less than complete investigation of law and facts may still be adjudged reasonable.”
In this case, the court wrote, “Sargent reasonably decided that further investigation of the alleged prior sexual assault and its admissibility was unnecessary.”
However, the court offered a caution: “the better practice is for counsel to always research and be familiar with pertinent legal authority. In another case, failure to do so may constitute deficient performance.”
Defense prejudiced?
The court went on to analyze the second prong of Strickland − whether the deficiency prejudiced the defense – even though the analysis was unnecessary given its ruling on the first prong of Stickland.
The court ruled that even if Sargent’s performance was deficient, the deficiency did not prejudice the defense “because evidence of the previous sexual assault would have been inadmissible” under Wisconsin’s rape shield law.
The Pulizzano case provides an exception to the rape shield law, the court noted, only “if the defendant satisfies a five-part test, and the court determined that the defendant’s right to present the evidence outweighs the state’s interest in excluding it.”
Carter’s offer of proof, the court held, failed the first and second prongs of the Pulizzano test and thus is not excepted from the rape shield law.
Concurrence
Justice Ann Walsh Bradley wrote a concurring opinion, joined by Chief Justice Shirley Abrahamson, but disagreed that Sargent’s performance was not deficient.
Ignorance of Pulizzano, Justice Bradley noted, would make it impossible to weigh alternative strategies consistent with professional standards. “Where there is ignorance of the law, you cannot excuse a lawyer’s performance by labeling it trial strategy,” she wrote.
In addition, Sargent had an obligation to undermine the credibility of the child directly because she testified that Carter sexually assaulted her, Justice Bradley wrote.
Justice Bradley concurred, however, reasoning that irrespective of whether Sargent’s performance was deficient, the deficiency did not prejudice the defense.
Carter’s evidence was insufficient to satisfy the Pulizzano test, she concluded. In other words, the evidence would have been inadmissible under the rape shield law.
By Joe Forward, Legal Writer, State Bar of Wisconsin