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Defense win: Failure to call represented witness was ineffective

State v. Micah Nathaniel Reno, 2016AP1371-CR, District 1 (not recommended for publication); case activity (including briefs)

Reno’s trial lawyer wanted to call A.A. as a witness at trial. But A.A. had a pending case and A.A.’s lawyer told Reno’s lawyer not to talk to her. Thinking he was barred by the ethics rules from talking to a represented person, Reno’s lawyer didn’t attempt to talk to A.A. or call her as a witness. Trial counsel was ineffective because he was not attempting to talk to A.A. about the subject matter of her case, but only about the subject matter of Reno’s case, and therefore counsel wasn’t barred under the rules of ethics from trying to talk to or call A.A. as a witness.

Reno was charged with kidnapping, human trafficking, pandering and sexual assault of N.B. N.B.’s testimony about Reno’s treatment of her was roundly disputed by A.A., Reno’s girlfriend, so Reno and his lawyer wanted A.A. to testify in his defense. But A.A. was herself charged with prostitution and cocaine possession, and her lawyer told Reno’s lawyer not to talk to or subpoena her. (¶¶2-16). Reno’s attorney acquiesced, thinking SCR 20:4.2(a) barred any other action, and the state contends trial counsel’s conclusion was reasonable. The court of appeals disagrees:

¶24     …. The heart of the State’s argument is that the application of SCR 20:4.2 to “the pre-trial investigative phase of a criminal case” is unsettled law in Wisconsin and counsel could not have rendered ineffective assistance by “failing to argue an unclear legal point.” (Bolding omitted.) Relying primarily on … State v. Maloney, 2005 WI 74, 281 Wis. 2d 595, 698 N.W.2d 583, the State contends that the question of whether SCR 20:4.2 applies under this set of circumstances is unclear. We disagree and conclude that trial counsel was not barred by SCR 20:4.2 from asking the circuit court to permit him to subpoena A.A. as a witness.

¶25      As stated, SCR 20:4.2 provides, as relevant:

(a) In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

(Emphasis added.) The Maloney court addressed the applicability of this rule as it pertained to the pre-charging criminal investigative stage. Id., 281 Wis. 2d 595, ¶30. In that case, the defendant alleged that counsel was ineffective for failing to challenge the admissibility of videotape evidence based on an alleged violation of SCR 20:4.2 by the special prosecutor. Id., ¶2. In noting “the unclear and unsettled nature of SCR 20:4.2’s applicability in Wisconsin to the pre-charging criminal investigative setting,” the court analyzed the rule’s applicability in multiple jurisdictions and ultimately concluded that the defendant’s counsel did not render ineffective assistance. Id., ¶¶19-23, 30.

¶26      We do not find Maloney instructive under this set of facts. The Maloney court very narrowly decided the applicability of the no contact rule to the pre-charging investigation stage. The set of facts here deal with counsel’s ability to interview, and perhaps subpoena, an eyewitness in a criminal proceeding. SCR 20:4.2 is neither unsettled nor unclear as to this issue. The rule prohibits a lawyer from communicating with a represented person about the subject of the representation. A.A. was charged with misdemeanor counts of prostitution and cocaine possession. The dates, locations, and subject matters of A.A.’s counsel’s representation differed from Reno’s case. Moreover, A.A. was not a codefendant in Reno’s case and the State asserted that it was unlikely to prosecute A.A. with anything relating to Reno’s case. Reno and A.A. were represented in separate and distinct matters. Accordingly, Reno’s counsel had no interest in A.A.’s case or her counsel’s representation of her in that matter. We conclude that Reno’s trial counsel was not precluded by SCR 20:4.2 from interviewing A.A. or calling A.A. as a witness in Reno’s trial.

Because SCR 20:4.2 didn’t bar trial counsel from seeking a court order allowing contact with A.A. and calling her as a witness, counsel performed deficiently. Further, that deficient performance prejudiced Reno’s defense because the case hinged on N.B.’s credibility and A.A.’s testimony would have cast substantial doubt that credibility. (¶¶27-33). The circuit court therefore properly held that Reno is entitled to a new trial.

{ 3 comments… add one }
  • Christian Thomas November 1, 2017, 8:06 am

    I was that trial lawyer and am SOOOO glad that Mr. Reno will get another shot at justice.

    One of the things that got omitted, and a point to consider, is that at the Machner hearing, the DA failed to ask me WHY I wouldn’t subpoena and call a witness I had never been able to talk to. If he had, this would have been a “strategic decision” (not to call a witness that you have no idea what she would say) as opposed to a misreading of the rules.

    Still: lesson learned – my takeaway is that I can start approaching represented parties as long as it is not about the subject matter of their representation.

  • Jeff Mann November 1, 2017, 11:08 pm

    Atty Thomas,
    I commend you for not backing away from the case or your client. I do both trial and appellate work, and I witness far too many lawyers back away from trials for fear of being in the very same situation you find yourself in. You’ve learned something, I’ve learned something by reading this and a lot of lawyers (even if the won’t admit it) will now know to avoid this same pitfall. Keep fighting the good fight.

  • Tom Aquino November 3, 2017, 12:10 pm

    While an attorney’s decision not to call a witness because the attorney does not know what the witness will say may be a reasonable strategic decision, oftentimes it is the failure to investigate what the witness would say that is “deficient performance.” This was pointed out in Strickland itself, and as I read it, the basis of the decision here: counsel should have asked the court for a court order allowing counsel to interview the witness. So I don’t think the state would have won if it had asked counsel why the witness was not subpoenaed.

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