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Counsel – Ineffective Assistance – Deficient Performance: Adequate Investigation – Failure to Investigate Facts (Impeachment of Key Witnesses

State v. Jeannie M.P., 2005 WI App 183
For Jeannie M.P.: Michael Yovovich, Eileen Hirsch, SPD, Madison Appellate

Issue/Holding: Where counsel knew, or should have known, of evidence establishing possible motives for each of the two crucial State’s witnesses; and where adducing evidence of those motives would have been consistent with the chosen theory of defense, counsel’s failure to bring out that evidence at trial was deficient, ¶¶11-25.

¶25      In sum, we conclude that the defendant has made a sufficient showing that her trial counsel was made aware of the existence of evidence that could be used to impeach the credibility of the State’s two key witnesses. We also conclude that counsel’s failure to investigate facts that were readily available to him, and his failure to employ those facts at trial to undermine the credibility of the State’s two key witnesses by showing their motives to fabricate the assault allegation, constituted representation that fell below an objective standard of reasonableness. As in Thiel, 264 Wis.  2d 571, ¶46, “[t]he credibility of the complaining witness was paramount to this case,” as was the credibility of his girlfriend. And, like the supreme court in Thiel, we conclude that, “[u]nder the specific facts of this case, … it was objectively unreasonable for … counsel not to pursue further evidence to impeach” the alleged victim and his girlfriend. See id., ¶50.

Unusual facts, to say the least, ¶3:

… The defendant’s estranged husband, John, claimed that while he and his girlfriend were asleep, the defendant broke into their home and entered the couple’s bedroom, where she partially disrobed and mounted John, who was sleeping naked on top of the sheets. John testified that he awoke to find the defendant engaging him in intercourse and ordered her to get off of him. John’s girlfriend, Susan, testified that she woke up as this was occurring and observed the defendant doing what John described. …

The defense theory was to concede the sexual activity, but to argue that it was consensual (coerced, really, in the sense that John wanted sex in exchange for his agreement to end their custody dispute), and that Susan caught them in the act, ¶10. Counsel failed to show that Jeannie and John’s divorce was very acrimonious, a showing that would have advanced the theory that Jeannie would agree to sex in order to lessen the hostility, ¶14. Moreover, a sexual assault conviction against her would give him leverage in their custody dispute, ¶15. As to Susan, counsel either knew or should have known of her animosity toward Jeannie, including her threat to make Jeannie’s life a “living hell,” ¶17. Impeaching the witnesses on these grounds “would have complemented the (chosen) defense,” ¶22.


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