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Counsel – Ineffective Assistance – Deficient Performance – Failure to Read Discovery – Failure to Investigate Must Be Strategic

State v. James R. Thiel, 2003 WI 111, reversing unpublished opinion of court of appeals
For Thiel: Bruce J. Rosen


¶37. Turning to counsel’s performance, we first recognize that counsel’s failure to review certain portions of the discovery provided by the prosecution–especially Dr. Metzler’s medical reports–was deficient performance as a matter of law. In a felony case where the client potentially faces significant prison time, it falls below objective standards of reasonableness to fail to read all portions of discovery that may have the potential to educe information that is either beneficial or damaging to the client’s cause.¶38. We can perceive no strategic or tactical advantage for a criminal defense attorney not to read discovery provided by the prosecution that may yield exculpatory evidence. The discovery documents in this case could have contained, and did contain, information that would have benefited Thiel’s defense. Unread discovery not only provided critical information directly but also provided insight into other facets of the case that deserved more thorough investigation.

Issue/Holding: Failure to pursue an investigatory lead may not be deemed strategic “if counsel has not read the police report relating to that witness, because that would not be an informed decision.” ¶40. Moreover, if “the decision not to investigate is unreasonable, we must find that trial counsel’s performance is deficient.” ¶44. Where the complainant’s credibility was “paramount to this case … counsel’s failure to delve further into the circumstances of the charges and the background of Thiel’s accuser is objectively unreasonable. This investigation should have included inquiry into additional documents and persons that could either corroborate or dispel her allegations, especially Ekern, who was slated to offer a prior consistent statement of the complainant.” ¶46. (The omitted inquiries are fact-specific in nature, such as failing to determine that the complainant had a driver’s license, given her disputed contention that she had driven to Thiel’s house over 100 times; failing to interview Thiel’s neighbors to see if any of them had ever seen her; and failing to conduct “a more thorough interview with Ekern,” who bolstered the complainant with a prior consistent statement whose admissibility might have been prevented had counsel brought out more details from Ekern. ¶¶47-50.)

Similar, if somewhat broader point, made by Ramonez v. Berghuis, 6th Cir No. 06-1852, 6/18/07 (“In sum, the point is this: Constitutionally effective counsel must develop trial strategy in the true sense–not what bears a false label of ‘strategy’–based on what investigation reveals witnesses will actually testify to, not based on what counsel guesses they might say in the absence of a full investigation.”).

See also State v. Lisamba L. Love, 2005 WI 116, ¶40 (“pursuant to the ABA Standards for Criminal Justice, trial counsel is obligated to investigate information in police reports,” citingThiel. On the issue of failure to interview a potentially key witness and strategy, see also, e.g.,Riley v. Payne, 9th Cir No. 03-35054, 12/23/03:

Clower’s performance fell below an “objective standard of reasonableness” because he failed to interview Pettis. Having never spoken with Pettis, Clower could not have fully assessed Pettis’s version of the events, Pettis’s credibility and demeanor, or any other aspect of his involvement that might have reinforced Riley’s defense…. Thus, the rule of Strickland requiring “reasonable professional judgments” before limiting investigation is offended here. The government has provided no testimony of counsel as to why he did not contact Pettis. Having never interviewed Pettis, Clower could not have determined what Pettis would have said about the shooting, whether Pettis would have been a credible defense witness, and whether Pettis should have been called to testify to aid the defense. The record shows that counsel did not make a reasonable professional judgment to ignore an important corroborating witness.

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