This is a very nice victory for the defense. It clarifies the “prejudice” showing required for a claim of ineffective assistance of trial counsel. And it assures lower courts that, where trial counsel fails to call an eyewitness whose credibility can be challenged, it is still quite possible to show the prejudice required for a new trial. After all, witness credibility is for the jury to decide.
A jury found the defendant guilty of several crimes, including 1st-degree intentional homicide, as party to a crime, with use of a dangerous weapon. Kimber, a friend of the victim, and Jones, a woman who sold Kimber marijuana, were eyewitnesses the shooting. At trial, Kimber’s testimony was the only evidence that linked the defendant to the shooting. Defense counsel did not call Jones to testify because he couldn’t recall whether he had talked to her or whether her testimony would have fit with his theory of the case. Slip op. ¶27.
Chief Justice Abrahamson, writing for the majority, had no trouble finding defense counsel’s performance deficient under Strickland v. Washington, 466 U.S. 668 (1984). “We cannot figure out any reasonable trial strategy,” she wrote. ¶47
Because the State’s case rested almost completely on Kimber’s testimony, the majority also found trial counsel’s deficient performance to be prejudicial to the defendant.
¶53 In such a case, contradictory eyewitness testimony supporting the defendant would expose vulnerabilities at the center of the State’s case. When defense trial counsel knew about Jones and that she could contradict the prosecution’s central eyewitness testimony, the excluded contradictory eyewitness would have contributed strongly to doubts regarding the prosecution’s case. See United States ex rel. Hampton v. Leibach, 347 F.3d 219 (7th Cir. 2003) (concluding that failure to call key witnesses in a case with no physical evidence was prejudicial).
¶54 Jones’s testimony also would have supported the defendant’s own testimony that the defendant was in a neighboring house at the time of the shooting and came out afterwards.
The prejudice finding is noteworthy because there were inconsistencies in Jones’s testimony, and her credibility could be challenged. The same was true for Kimber, who had a criminal record. So if Jones had been called to testify at trial there would have been a credibility contest between 2 witnesses with credibility problems. The circuit court and court of appeals said Jones’s credibility problems proved that the defendant was not prejudiced by trial counsel’s failure to call her. The majority disagreed:
¶37 The proper test for prejudice in the context of ineffective assistance of counsel is whether “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” The required showing of prejudice is that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” A defendant fails to demonstrate prejudice if it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. (footnotes omitted).
¶63 The court of appeals in Cooks, quoting the federal Washington case, 219 F.3d at 634, noted that “the mere fact that some negative evidence would have come in with the positive does not eliminate the prejudicial effect of leaving corroborative evidence unintroduced.” Cooks, 297 Wis. 2d 633, ¶63.
¶64 In assessing the prejudice caused by the defense trial counsel’s performance, i.e., the effect of the defense trial counsel’s deficient performance, a circuit court may not substitute its judgment for that of the jury in assessing which testimony would be more or less credible.
Pay attention the Justice Crooks’s concurrence and Justice Ziegler’s dissent (joined by Justice Gableman). Crook offers detailed instructions to circuit courts on how to handle “ineffective assistance of trial counsel” cases like this one:
¶88 Because there are instances in which a circuit court can properly determine that a witness’s testimony is incredible as a matter of law, I cannot advocate a bright-line rule wherein a circuit court must always conclude that a defendant was prejudiced by his or her counsel’s failure to call a particular witness at trial. Rather, the better approach is for a circuit court to consider the following questions when evaluating prejudice for purposes of an ineffective assistance claim: (1) is the uncalled witness’s testimony worthy of belief in light of the totality of circumstances of the case?; and (2) is the uncalled witness’s testimony materially beneficial to the defendant’s theory of the case?
¶89 As to the former inquiry, the circuit court should simply ask whether the uncalled witness’s testimony has any indicia of credibility in light of the evidence presented at trial. In answering this question, the fact that the circuit court may be troubled by inconsistencies in the uncalled witness’s testimony is not necessarily of any import. The existence of inconsistencies in a witness’s testimony does not normally lead to a finding that the testimony is incredible as a matter of law; rather, the existence of discrepancies ordinarily creates a credibility question for the jury to resolve. Ruiz, 75 Wis. 2d at 232.
¶90 As to the latter inquiry, the circuit court should simply consider whether the proposed testimony would be helpful to the defendant’s trial strategy such that, if the jury were to believe the proposed testimony, it would likely have a reasonable doubt respecting the defendant’s guilt.
Justice Ziegler, for reasons you can guess, would hold that trial counsel’s performance in this case was neither deficient nor prejudicial. Her dissent is noteworthy for its comment on §751.06, giving appellate courts the power of discretionary reversal in the interests of justice. In appeals arguing “ineffective assistance of trial counsel,” appellate lawyers often request, in the alternative, a new trial in the interests of justice. Justice Ziegler said: “The interest of justice analysis is not intended as a fall back position for a defendant who does not succeed in a claim of ineffective assistance of counsel.” ¶128. If the defendant can’t prove IAC, she wrote, then he certainly cannot meet §751.06’s more stringent test. Note that only Justice Gableman joined her dissent.