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Counsel – Ineffective Assistance – Deficient Performance – Conceding Guilt 

State v. William A. Silva, 2003 WI App 191, PFR filed 9/4/03
For Silva: Martin E. Kohler, Brian Kinstler, Donald E. Chewning

Issue/Holding: (State v. Gordon, 2003 WI 69, followed. ¶15 n. 4:)

¶19 We are satisfied that, under the circumstances, Silva’s allegations do not defeat the strong presumption that trial counsel rendered adequate assistance. Silva’s trial attorney did as well as most attorneys would have done. Stating that Silva was “technically guilty” had two beneficial effects: first, it telegraphed to the trial court that if any doubt existed in the trial court’s mind, the minor nature of the act could act as a controlling factor in finding Silva not guilty; and second, the strategy emphasized the idea that the matter was overcharged, setting up an argument for leniency at sentencing. Thus, counsel did not abdicate his role in the adversarial process.¶20 Moreover, given the strength of the State’s case, the attorney’s closing argument was also not beyond the realm of “reasonably effective representation,” which is the test we must apply. See State v. McMahon, 186 Wis. 2d 68, 80, 519 N.W.2d 621 (Ct. App. 1994). The six-year-old girl was a very articulate witness. She reported the attack to her mother as soon as she was able to get her mother’s attention, which was the next day. Another significant consideration is the fact that the girl’s father testified that when he confronted Silva, his half-brother, Silva not only displayed all the signs of guilt, but also did not deny the accusation. See Caccitolo v. State, 69 Wis. 2d 102, 110, 230 N.W.2d 139 (1975) (silence in the face of an accusation that most people would deny is an admission). Thus, Silva is not entitled to a new trial on this basis.

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