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Counsel: Failed but Adequate Investigation; Interest-of-Justice Review: Critical Evidence (Absence of Herpes) Not Heard by Jury

State v. Jeffrey A.W., 2010 WI App 29; for Jeffrey A.W.: Hans P. Koesser

Adequacy of Counsel Investigation

Counsel’s attempt to demonstrate the absence of herpes in the defendant—an issue central to this sexual assault prosecution—was, although a failure, not the product of deficient performance.

¶12  There is no question that trial counsel’s investigation yielded the wrong information. But that does not necessarily equate to deficient performance. She tried her best. She just looked in the wrong places. She recognized the importance of the issue and the need for a valid test if she could find it, researched the issue with deliberation, sought to corroborate her online research by attempting to speak with medical professionals about her tentative conclusions, and judged from this information and her conversation with Jeffrey’s physician that the herpes test was not very accurate, could result in a false positive, and thus would not be very helpful to the jury. Given this level of research, and especially the fact that Jeffrey’s own physician confirmed her research, we uphold the trial court’s finding that counsel’s decision to forego herpes testing was a reasonable professional judgment and not deficient. Her investigation was not outside the range of professionally competent assistance as illustrated by prevailing professional norms. See Johnson, 153 Wis. 2d at 127. Jeffrey has not proven that his trial counsel was ineffective.

The court goes on to grant relief, but under the rubric of “interest-of-justice,” which hints to postconviction counsel that such a theory be added to any IAC claim where prejudice is clear but deficient performance might be contested.

Interest of Justice Review – Critical Evidence (Absence of Herpes) Not Heard by Jury

Where defendant’s commission of sexual assault hinged on whether he had transmitted herpes to the victim, and postconviction testing showed near-conclusively that he was herpes-free, new trial is granted in the interest of justice.

¶18   The significance of the new evidence in this case is quite similar to that in Hicks. Here, the State aggressively used the lack of a herpes test to impugn Jeffrey’s credibility. We cannot say that these assertions were a mere “chip” in contrast with AMK’s testimony. Rather, it was AMK’s testimony, combined with Jeffrey’s failure to corroborate his claim that he did not have herpes by some objective test result, which made the State’s case so viable. We cannot say that this did not affect the jury’s decision to believe AMK’s story over Jeffrey’s.

State v. Hubanks, 173 Wis. 2d 1, 496 N.W.2d 96 (Ct. App. 1992), distinguished, because trial counsel’s failure to produce favorable herpes test result wasn’t strategic, ¶19;  State v. Flynn, 190 Wis. 2d 31, 49 n.5, 527 N.W.2d 343 (Ct. App. 1994), distinguished re: idea “that the power of discretionary reversal should not be used when a defendant failed to prove that his attorney was ineffective,” ¶20.