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Court of appeals ignores “Perry Mason” moment; finds defense discovery violation, but no ineffective assistance of counsel

State v. William J. Thurber, 2015AP161-CR, 7/27/16, District 2 (not recommended for publication); case activity (including briefs)

“Was Thurber’s trial a game being played or was it a trial designed to search for the truth? Thurber is certainly no angel as evidenced by his current long-term incarceration for crimes apart from this case. I believe the justice system best defines itself by scrupulously adhering to high standards when the worst of the worst comes before it. We travel a slippery slope when we excuse mistakes by the judiciary, the State, and defense counsel because we ‘know’ the defendant is a criminal.” Slip op. ¶91. (Reilly, J. dissenting).

Thurber was charged and convicted of 12 counts of burglarizing, as a party to the crime, 12 different motor homes located at the American Mini Storage facility in Menasha.  The State claimed that Thurber masterminded the crime and got his friend, Jacob Kent, to assist.  That’s more or less what Kent told police when they interrogated him, but when the State called Kent at trial he testified that he acted alone.

The State also called Officer Jagla, who testified that he interviewed Melissa Blank, an American employee, who reported that there were security cameras at the facility but the one covering the back of the facility malfunctioned on the night of the crime. Coincidentally (or not) she saw Andy Lutzow, who had been hired to repair the security system, drive his truck into the facility at 1:30 a.m. on the night of the crime. She thought that was odd. So did Officer Jagla, but he did not bother to investigate Lutzow.

Defense discovery violation.  Thurber tried to call Blank to testify at trial. The circuit court excluded her per §971.23(7m)(a), which provides that “the court shall exclude any witness not listed . . . unless good cause is shown for failure to comply. The court may in appropriate cases grant the opposing party a recess or a continuance.” The court of appeals affirmed.  Thurber had neglected to show good cause for failing to list Blank. Therefore, the statute “mandated” the exclusion of her testimony. See Slip op. ¶¶36-37 (citing State v. Gribble, 2001 WI App 227, ¶28, 248 Wis. 2d 409, 636 N.W.2d 488).

The dissent concludes that Thurber did demonstrate good cause. But even if he hadn’t, the trial court was required to determine that the State would be prejudiced by Blank’s testimony before excluding it. See State v. Harris, 2008 WI 15, ¶15, 307 Wis. 2d 555, 745 N.W.2d 397. Furthermore “Blank was not an undisclosed witness (she was disclosed by the State in its discovery documents), and no surprise or prejudice would have befallen the State had Blank’s testimony been received.” ¶83. This looks like a petition-worthy issue for review. Indeed, the majority notes how few cases there are applying  §971.23(7m) to a discovery violation by the defense. ¶32.

Ineffective assistance of trial counsel.  As you might guess, Thurber claimed his trial lawyer was ineffective for failing to list Blank as a witness. But he also faulted counsel for failing to call Lutzow and for failing to use the security video, map and photographs of the American facility at trial. The court of appeals basically sifted the trial record and declared that even if the additional evidence had been offered, the jury would have convicted Thurber anyway. ¶59¶65¶70.

The eye-popping ineffective assistance issue was trial counsel’s failure to investigate and call Lutzow. Here are Lutzow first words at Thurber’s postconviction hearing:

[Lutzow:] Before I’m sworn in, I’d like to ask the prosecution that I be granted immunity in this case.

[State:] I can’t do anything of the sort.

[The Court:] Well, I’ll have you sworn in, sir.

[Lutzow:] I’ll exercise my 5th Amendment right then.

[The Court:] Well, let me swear you in first and I’ll give you that opportunity.

[Lutzow:] I’m not going to. I won’t—I won’t testify in this case unless I’m granted immunity.

[The Court:] We’ll hold you in custody.

[Lutzow:] Okay. ¶78

Judge Reilly calls this “enough of a Perry Mason moment for me to dissent.” ¶78. Thurber’s trial counsel admitted that she never saw the security videos or spoke with Lutzow prior to trial. The only witness she called was Thurber himself.  Citing a long list of 7th Circuit cases, Judge Reilly concluded:

¶87 It is not a reasonable trial strategy to sit back and do nothing under the guise of “making the State prove its case.” Trial counsel’s failure to independently investigate Lutzow and the surveillance footage was “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690.

¶89 Lutzow should have been a suspect in these burglaries. Blank testified at the postconviction motion hearing that she questioned why Lutzow was on video at American in the early morning hours: “Well, the first truck I saw pull in [to American] was [Lutzow’s] truck and why is he there at 1:00, 1:30 in the morning? That was the question.” Jagla also found Lutzow suspicious, and he testified that when he was unable to obtain videotape from American’s security system “[t]hat actually made me suspect the guy that was repairing it as being one of the suspects in this.” Yet, no one, not the State or trial counsel, investigated Lutzow’s knowledge of or involvement in the burglaries. By not investigating Lutzow, trial counsel left Thurber’s liberty interests to the unknown.

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