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Defense win: habeas relief granted on IAC claims

Michael Gilbreath v. Dan Winkleski, Case No. 19-cv-728-jdp (W.D. Wis. Aug. 4, 2020)

Witness credibility was the key issue at Gilbreath’s trial, and his counsel’s failure to present evidence that would have undermined [the complaining witness’s] credibility and bolstered Gilbreath’s defense deprived Gilbreath of a fair trial. The Wisconsin Court of Appeals unreasonably concluded that the failure to present the credibility evidence was a matter of reasonable trial strategy and that the evidence was merely cumulative. Gilbreath is entitled to habeas relief.

Habeas wins and ineffective assistance of trial counsel victories are both rare as hen’s teeth, so this is a doubly impressive victory, and all Wisconsin lawyers handling child sexual assault cases in the trial courts or appellate courts should read the decision. Because it is perhaps even more fact-intensive than your mine-run ineffective claim, we won’t attempt a full summary here.

The heart of the matter is that Gilbreath’s step-granddaughter accused him of sexual assault over a four-year period. He denied the accusations and insisted she fabricated them because, among other reasons, he had interfered with who she dated. Trial counsel didn’t investigate a number of witnesses who would have undermined the complaining witness’s credibility, didn’t present some of her prior inconsistent statements, and didn’t present evidence of her motive to falsely accuse Gilbreath. (Slip op. at 9-12). While trial counsel explained he didn’t think this evidence was necessary or effective in view of other evidence he was able to elicit, the habeas court explains in detail why this judgment wasn’t reasonable. (Slip op. 18-27).

The habeas court then rejects the Wisconsin Court of Appeals’ conclusion that Gilbreath suffered no prejudice from any deficient performance because all this evidence was “cumulative,” as the court of appeals “applied an unreasonably expansive definition of ‘cumulative’ that is contrary to federal law.” (Slip op. at 28).

The Wisconsin Court of Appeals defined “cumulative evidence” as “evidence of the same general character as was subject to proof at trial.” [2016Ap2471-CR, ¶16] (citing State v. McAlister, 2018 WI 34, ¶ 39, 380 Wis. 2d 684, 911 N.W.2d 7 (holding that additional evidence of the same general character or fact that was subject to proof at trial is cumulative and not a ground for a new trial)). The court of appeals determined that Gilbreath’s proffered evidence was cumulative because it concerned subjects explored at trial already, including inconsistencies and omissions in S.L.’s 2008 statement and S.L.’s motives to falsely accuse Gilbreath. Id. at [¶¶16, 19-20]. The court concluded that because Gilbreath’s evidence qualified as cumulative, and because counsel impeached S.L. on other topics, Gilbreath could not show prejudice.

But the state court’s decision to apply Wisconsin’s definition of cumulative evidence to Gilbreath’s claim resulted in an unreasonable application of Strickland. Under federal law, “cumulative evidence” is evidence that “supports a fact established by existing evidence.” Washington [v. Smith], 219 F.3d [620,] 634 [(7th Cir. 2000)]. But evidence that supports previous testimony on a contested issue is not cumulative, it is corroborative. ….

Most of the evidence that Gilbreath presented postconviction was corroborative, not cumulative. …. (Slip op. at 28-29).

In addition, beyond saying the state had “a weak case,” the court of appeals didn’t adequately consider or discuss the strength or weakness of the state’s case when it was assessing prejudice, and this, too, was an unreasonable application of the prejudice standard. (Slip op. at 29-31).

Kudos to Cole Ruby for his thoughtful, thorough development of the facts and law, and for his perseverance.

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