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SCOW addresses counsel’s duty to investigate client’s brain injury, clarifies when lawyer may testify as expert at Machner hearing

State v. Anthony R. Pico, 2018 WI 66, 6/15/18, affirming a split, unpublished court of appeals opinion, 2015AP1799-Cr, case activity (including briefs)

This split decision clarifies important aspects of ineffective assistance of counsel law, sentencing law, and appellate procedure. In addition, Justice Abrahamson’s dissent includes a word of caution for lawyers representing clients who have experienced brain trauma that may affect their mental capacity.

A student in a classroom where Pico was volunteering asserted that he had put his hand inside her pants and on her vagina. Police interviewed him using the Reid Technique, which among others, involves police lying to a suspect in order to get him to confess. Pico’s statements were equivocal, but they were used against him a trial, and he was convicted of 1 count of 1st degree sexual assault. He asserted numerous claims of ineffective assistance of counsel and claimed that the trial court sentenced him more harshly for maintaining his innocence.

IAC: duty to investigate brain injury. For the full story on the IAC claims, you’ll have to read this 50-page decision, but there are 2 important take aways. First, Pico argued that his trial counsel performed deficiently by not investigating his mental capacity–specifically a frontal lobe brain injury–which left him with double vision and caused him confusion and nervousness during the police interview. It was undisputed that counsel knew Pico had a brain injury, but since neither he nor his family mentioned that it affected his mental capacity during their discussions, counsel did not investigate it further. At the Machner hearing, Pico presented a neuropsychiatrist to explain the significance of the injury and a lawyer/expert to testify regarding trial counsel’s failure to investigate the injury and how it impacted the confession.

The majority held that Pico neglected to tell trial counsel before trial that his injury affected his mental capacity, therefore counsel had no duty to investigate. “If we were to apply [the neuropsychiatrist’s] information retrospectively to evaluate counsel’s pre-trial strategic decisions, we would be doing exactly what Strickland prohibits, to wit, evaluating counsel’s performance with the distorting effects of hindsight.” Strickland, 466 U.S. at 689.” Opinion ¶27.

Abrahamson (joined by AW Bradley) filed a dissent arguing that trial counsel’s failure to further investigate Pico’s frontal lobe injury and instead pursue a reasonable doubt defense was deficient performance that prejudiced Pico. She points out that state and federal courts “have found head injuries to be ‘red flags’ that give rise to a duty for counsel to investigate further for neurological damage that may impact the client’s case.” Dissent ¶68 (and see law reviews cited in footnote 3). Abrahamson would also find prejudice because if trial counsel had known Pico had frontal lobe syndrome and consulted a doctor, he would have realized that the condition caused Pico to shut down when faced with frustration and to defer in order to avoid confrontation. She cautions trial lawyers to be on alert for signs of neurological damage that could impact their clients’ cases. Dissent, ¶72. A troubling implication of the majority opinion is that it puts the onus on the person with the brain injury to tell his lawyer that the brain injury affects his mental capacity when the person may not even realize that this is the case.

IAC lawyer testifying as expert at Machner hearing. A 5-justice majority held that “Strickland expert testimony is admissible in the Machner context, but only to the extent the expert focuses on factual matters and does not offer his opinion on the reasonableness of trial conduct or strategy.” Opinion ¶47.

Justice Rebecca Bradley filed a concurring opinion, which was joined by Kelly (author of the majority opinion, which is unusual), Abrahamson, and A.W. Bradley. She explains what Strickland experts may and may not testify to. Because 3 justices join her concurrence, it would seem to be the majority opinion on this point. She explains:

¶57 . . . When a circuit court determines the testimony of a Strickland expert would be helpful, the expert may testify as to what actions a reasonable attorney could take in the same or similar circumstances.  These include “factual matters” such as alternate actions the defendant’s lawyer could have taken and different strategies defense counsel could have employed.  The expert lawyer may also testify regarding the existence of alternative strategies available to defense counsel under the particular facts and However, the expert may not testify as to the ultimate question of law the circuit court must decide.  Specifically, the expert may not offer an opinion on whether the trial lawyer performed deficiently.  That is a question of law left to the circuit court.

Sentencing.  Pico claimed to be innocent of the charge. At sentencing, the court criticizing for failing to show remorse, and, in Pico’s view, sentenced him more maintaining his innocence citing Scales v. State, 64 Wis. 2d 485, 219 N.W.2d 286 (1974). The majority distinguished Scales, where the sentencing court refused to consider probation until the defendant demonstrated some remorse. In Pico’s case, the court said that it would consider his remorse among other factors in choosing a sentence. Opinion ¶¶51-52. That is appropriate.

When is a cross-appeal necessary? The postconviction court actually ruled for Pico. The State appealed, and the court of appeals reversed. Pico did not file a cross-appeal on the sentencing issue, so the State argued that he waived it. In a very long footnote 14, the majority explained that a party appeals from a written order, not the circuit court’s reasoning. A cross-appeal is necessary only when the respondent wants to modify the order that was appealed. See §809.10(2)(b). Pico didn’t want a modification. His conviction and sentence were vacated and he wanted the court of appeals to affirm the vacation. His sentencing error argument was only an alternative basis for affirming part of the circuit court’s order. In short, Pico won this point.



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