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State v. Jeffrey A.W., 2010 WI App 29

court of appeals decision; for Jeffrey A.W.: Hans P. Koesser
Resp Br; Reply

Counsel – Adequacy of Investigation
Attempt to demonstrate absence of herpes in defendant—an issue central to this sexual assault prosecution—was, although  failure, not product of deficient performance, ¶12:

There is no question that trial counsel’s investigation yielded the wrong information. But that does not necessarily equate to deficient performance. She tried her best. She just looked in the wrong places. … Given this level of research, and especially the fact that Jeffrey’s own physician confirmed her research, we uphold the trial court’s finding that counsel’s decision to forego herpes testing was a reasonable professional judgment and not deficient. …

The lens through which the court scrutinizes counsel’s performance is extremely deferential. Guilt literally hinged on whether the defendant was indeed infected (the complainant was, and said she got it from him, so if he was herpes-free then he wasn’t guilty), and postconviction evidence showed to a virtual certainty that he did not have herpes. The court goes on to do the right thing, under the rubric of “interest-of-justice,” which hints to postconviction counsel that such a theory be added to any IAC claim where prejudice is clear but deficient performance might be contested.

Interest of Justice Review – Critical Evidence Not Heard by Jury
Where defendant’s commission of sexual assault hinged on whether he had transmitted herpes to the victim, and postconviction testing showed near-conclusively that he was herpes-free, new trial is granted in the interest of justice, ¶¶18-22.

State v. Hubanks, 173 Wis. 2d 1, 496 N.W.2d 96 (Ct. App. 1992), distinguished, because trial counsel’s failure to produce favorable herpes test result wasn’t strategic, ¶19.

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