Congratulations to Quarles & Brady, which took this appeal pro bono, for scoring a defense win! Gilbert, who was convicted trafficking a child and related crimes, argued that his trial counsel was ineffective for failing to (1) challenge the admission of cellular phone data testimony, (2) demand discovery before trial, (3) impeach the State’s star witnesses with prior inconsistent statements, and (4) strike a biased juror. Gilbert further alleged that his trial counsel made improper statements during his closing. The court of appeals granted a Machner hearing on all claims except the one regarding juror bias.
Failure to object to erroneous cellular data evidence. The court of appeals focused on three of the IAC claims, starting with the claim that trial counsel failed to object to a detective’s erroneous testimony that cellular data from Gilbert’s phone showed that he was within 20 feet of an Econo Lodge at a moment critical to the State’s theory of the case. The postconviction court had held that testimony was accurate. On appeal, the State conceded that it was erroneous and that the prosecutor had heavily relied relied upon it. The court of appeals agreed with this concession and held: “Under these facts, Gilbert has established that he is entitled to a hearing on this component of his ineffective assistance of counsel claim. Thus, we remand to the postconviction court to analyze this claim.” Opinion ¶24.
“We let scumbags go free.” Gilbert argued that his trial lawyer’s closing argument amounted to ineffective assistance of counsel because it questioned his credibility. His lawyer told the jury: “[i]n this [c]ountry, you know, we would rather … let some scumbags go free because we can’t find that person guilty if we don’t have enough evidence.” He also argued:
[I]t’s about who you believe. You have the victim. You have this co[-]actor fellow who took—made a deal with the State, and you have Mr. Gilbert. I’m not sure I believe any of them, to be quite frank. A little bit here, a little bit there, but I’m not sure I believe any of them. And I told you when I first started that your moral compass would need to be readjusted or recalibrated when listening to the testimony or reading all of the testimony. Maybe they get this, but morality is what’s missing here. There’s [sic] no good guys. Opinion ¶37 (Emphasis added.)
The court of appeals held: “Having trial counsel, who was supposed to be representing Gilbert’s interests, questioning his credibility and characterizing him as a scumbag presents questions of performance and prejudice that should be further addressed in the Machner hearing.” Opinion ¶37
Failure to strike a biased juror. During voir dire, Juror 29 admitted that she had been the victim of a violent crime and might have trouble being fair and impartial on the assault charge and then said: “I can’t say. I haven’t heard the evidence.… I’m not going to say that I can honestly put it aside. I don’t know.” Opinion ¶39. Gilbert claimed his lawyer should have stricken the juror. The postconviction court held that these comments proved that the juror had not yet formed an opinion because she hadn’t yet heard the evidence. The court of appeals affirmed because Gilbert had failed to prove that this finding of “no subjective bias” was clearly erroneous.
The court of appeals holding on the juror bias issue is a head scratcher. Had the trial court actually found that that Juror 29 was not subjectively biased then that finding would have to be affirmed unless clearly erroneous. But trial counsel never objected to the seating of Juror 29, so there was no ruling on that point by the judge that conducted voir dire. Gilbert’s briefs point out that the postconviction judge was different and thus in no better position than the court of appeals to determine bias. Furthermore, unlike the jurors in State v. Lepsch, 2017 WI 27 (SCOW’s most recent decision on subjective bias) who ultimately confirmed that they would based their decision on the evidence, Juror 29 clearly did not give such an assurance See our post on Lepsch regarding the federal court requirement that jurors give an unequivocal assurance of impartiality. Thus, the Machner hearing should also address this claim.