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Defense win! Defense counsel’s failure to object warranted new trial

State v. David Earl Harris, Jr., 2016AP548-CR, 5/31/17, District 1 (unpublished); case activity (including briefs)

The state charged Harris with heinous conduct giving rise to false imprisonment, sexual assault, and strangulation charges. At trial, the DA introduced a copy of a TRO that pre-dated the criminal complaint but mirrored the facts that it alleged. Defense counsel didn’t mind letting the jury see the TRO because she thought it showed that the TRO allegations were false. But she didn’t notice the part of the TRO where the court commissioner found reasonable grounds to believe that Harris had committed all heinous conduct described in the TRO. Uh oh. Guess what happened?

The jury convicted Harris. The circuit court held a Machner hearing where defense counsel admitted that the jury shouldn’t have seen the court commissioner’s finding. The court of appeals wisely affirmed the trial court decision to find ineffective assistance of counsel and order a new trial:

¶18 Our confidence in the outcome is undermined because of the obvious probability that viewing the commissioner’s findings served to undercut the entire defense theory of fabrication and instead bolstered D.L.S.’s credibility.  D.L.S.’s credibility was acknowledged by trial counsel as paramount to the case.  While it is impossible to determine how much weight the jury gave to the court commissioner’s findings, we can perceive no strategic or tactical advantage for Harris’s trial counsel to allow the jury to read a judicial officer’s determination that Harris probably committed the acts underlying the charges here and that he posed a risk to the complaining witness.  We agree with the postconviction court’s finding that trial counsel’s failure to either redact the judicial findings in the TRO, or to object to the TRO in its entirety because of those judicial findings, establishes deficient performance and prejudice to Harris’s defense.  Accordingly, we affirm the postconviction court’s order for a new trial.


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