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Counsel – Ineffective Assistance – Deficient Performance – Failure to Offer Alternative Medical Testimony

State v. Evan Zimmerman, 2003 WI App 196, (AG) PFR filed 9/10/03
For Zimmerman: Keith A. Findley, UW Law School

Issue/Holding: Counsel’s failure to offer independent medical evidence that would have challenged the state’s expert as to the weapon used to kill the victim and that would have indicated that the murder was consistent with a sex crime, was deficient performance:

¶42. Given the particular facts of this case, we conclude that counsel’s failure to present independent medical testimony constituted deficient performance. Counsel’s decision not to investigate a defense must be directly assessed for reasonableness in all the circumstances, “applying a heavy measure of deference to counsel’s judgments.” Strickland, 466 U.S. at 691. At the Machner hearing, counsel testified that he did not consider finding a medical examiner to review McGee’s findings because they did not link Zimmerman to the crime, although he admitted Jentzen’s evidence would have been helpful at trial. Many of McGee’s findings were inconclusive. He testified that the telephone cord could have been the murder weapon and that nothing found in the autopsy indicated that it was not used. Jentzen, however, concluded that the cord was not used in Thompson’s murder. McGee also testified that hemorrhages on Thompson’s body could have been caused by being pushed against a van door or window by a person in the driver’s seat, whereas Jentzen concluded this was not the case. Both of McGee’s statements were important to his testimony, and both were rather inconclusive. Counsel was deficient by failing to present available alternative testimony to counter McGee.

This deficiency held prejudicial, in combination with other deficiencies, ¶51, because it would have allowed the jury to reject any connections between the state’s expert and Zimmerman.

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