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Counsel – Ineffective Assistance – Deficient Performance: Adequate Investigation – Expert Testimony

State v. Michael A. DeLain, 2004 WI App 79, PFR granted, on other grds.
For DeLain: Robert R. Henak

Issue/Holding: Trial counsel’s failure to “investigate and present evidence of exculpatory prior consistent statements DeLain made to co-workers” was not the product of deficient performance, given that DeLain never told counsel about these remarks, and that counsel interviewed all of the co-workers, ¶18.

Issue/Holding: Trial counsel’s failure to adduce expert testimony regarding the propriety of defendant’s “provocative therapy” approach in counseling youths was not deficient but, rather, the product of a reasoned strategy which aimed “to avoid expert testimony as much as possible” so that the jury would be disinclined to pass judgment on the defendant’s therapy techniques, ¶20.

But wouldn’t that precise function be served by expert testimony that the techniques were indeed reasonable? In any event, the court goes on to say that, even though the defendant didtestify and even though his testimony apparently did open the door to the propriety of his therapy approach, counsel “felt he did an effective job of impeaching the State’s rebuttal expert witness.” ¶22. Support for idea that counsel should consult relevant forensic expert where such an expert would be the “only chance … to establish so far as it was possible” the theory of defense, see Miller v. Anderson, 255 F.3d 455, 459 (7th Cir. 2001) (failure to consult DNA, treadmark, or footprint expert deficient, where such experts would have contradicted state’s claim defendant at scene of crime); and Dugas v. Coplan, 1st Cir No. 04-1776, 10/31/05 (failure to consult arson expert deficient); Bell v. Miller, 2nd Cir No. 05-5235, 8/31/07 (only evidence ID’ing defendant was physically traumatized witness: “the failure of defense counsel to consider consulting an expert to ascertain the possible effects of trauma and pharmaceuticals on the memory of the witness is constitutionally ineffective”).

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