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Ineffective Assistance – Counsel – Deficient Performance – Failure to Obtain DNA Tests

State v. Evan Zimmerman, 2003 WI App 196, (AG) PFR filed 9/10/03
For Zimmerman: Keith A. Findley, UW Law School

Issue/Holding: Counsel’s admittedly non-tactical failure to obtain DNA results on hair found on the victim’s pants and on scrapings from her fingernails was deficient, similar to State v. Glass, 170 Wis. 2d 146, 488 N.W.2d 432 (Ct. App. 1992):

¶40. Here, the only testimony regarding the DNA samples taken from the scene was that they provided no insight into the crime. At best, this statement means the samples were inconclusive. This, however, was not the case. Instead, the samples taken from Thompson’s body and the surrounding area excluded Zimmerman; and one sample excluded Thompson, her husband, and Zimmerman as sources. Counsel’s failure to challenge Larson’s testimony with this data had the effect of essentially stipulating that the evidence was inconclusive. Instead, it was potentially exculpatory evidence that Zimmerman was entitled to have the jury hear. Counsel’s failure to introduce this evidence constitutes deficient performance.

This deficiency held prejudicial in combination with other distinct deficiencies, ¶50, because “it might have allowed the jury to reach the conclusion that because none of Zimmerman’s DNA was found at the scene or on Thompson, he was not responsible for her murder.”

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