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Counsel – Ineffective Assistance – Deficient Performance – Investigation – Strategy Determined At Time, Not Through Hindsight

State v. Robert Jamont Wright, 2003 WI App 252
For Wright: Ann Auberry


¶35. Wright’s appellate argument rests largely on Van Rybroek’s testimony at the Machner hearing, which documents the unreliability of eyewitness testimony. However, as the trial court aptly observed, trial counsel’s decision to forego an expert was made prior to Lomack surfacing as a potential witness and prior to the trial court’s ruling that Van Rybroek’s testimony was admissible under those changed circumstances. We assess the quality of counsel’s performance by the standard of whether such performance was reasonable under the prevailing circumstances. See State v. Brewer, 195 Wis. 2d 295, 300, 536 N.W.2d 406 (Ct. App. 1995). Even if it appears in hindsight that another defense would have been more effective, counsel’s strategic decision will be upheld as long as it is founded on rationality of fact and law. Id. We conclude that counsel’s decision was appropriately founded and did not constitute deficient performance. Given the circumstances at the time, given trial counsel’s experience, and given counsel’s research in the area of eyewitness identification, we uphold the trial court’s finding that counsel’s decision to forego expert testimony in favor of impugning the eyewitness identifications on cross-examination was a reasonable strategy.

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