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Prejudice Case Analysis

The court’s conclusion that Anderson failed to show prejudice — because the state had an overwhelmingly strong case — is troubling. The case is properly classified as a “he-said/she-said” case, turning entirely on the relative credibility of the defendant and the purported victim. In such cases, errors by counsel can be very prejudicial.

The court notes several factors to bolster its conclusion that the state’s case was strong, only one of which is supportable — that M.L.’s physical description of Anderson’s penis suggested that Anderson was not circumcised, and that Anderson admitted he was not.

The other factors should not have been cited as a basis why the State had a strong case. The court noted, “the jury had the opportunity to view the video interview of M..L., in which she convincingly recounted the sexual assault.”

However, this merely means she testified she was assaulted — this will be present in every sexual assault case, barring recantation. There was no physical evidence or other witnesses to the events described.

The majority notes what it calls the number of witnesses “corroborating M.L.’s testimony.” None of the “corroborating” witnesses, however, testified to anything other than what M.L. told them. This is just hearsay, and the case remains a classic “he-said/she said” credibility contest.

The case is thus indistinguishable from State v. Thiel, 2003 WI 111, 264 Wis.2d 571, 665 N.W.2d 305, 319, which the Supreme Court called “a classic instance of the ‘he-said-she-said’ dilemma.”

The court in Thiel wrote, “the veracity of JoAnn’s claims of sexual relations with Thiel was not established to such a degree that additional evidence could not have further undermined her credibility and generated reasonable doubt as to Theil’s guilt. While much of the State’s evidence was strong, the evidence of Thiel’s guilt was not beyond dispute. … We agree with the circuit court that credibility was the issue upon which a reasonable doubt turned. In this case, there was no physical evidence of the alleged sexual encounters, nor did any of the supportive witnesses who testified present evidence regarding their observation, direct or indirect, of the alleged encounters. Rather, the State’s witnesses all served to bolster or otherwise credit JoAnn’s version of the facts.” Id., at 326-327.

In Thiel, the court reversed the sexual assault conviction, because of errors by counsel, holding that, because the case was a “he-said-she-said” case, errors that went to credibility were prejudicial.

The court of appeals in the case at bar also noted that an expert witness testified that, in cases of child sexual assault by a family member, it is quite common for a child to delay reporting the assault. The purpose of such evidence, however, is to explain to the jury why a child would not report the incident right away. It is, effectively, a justification, not strong evidence.

In State v. Jensen, 147 Wis.2d 240, 432 N.W.2d 913, 918 (1988), and State v. Robinson, 146 Wis.2d 315, 431 N.W.2d 165, 172-173 (1998), the Supreme Court upheld the admission of such evidence, finding it necessary to explain the victim’s behavior, “disabusing the jury of common misperceptions about the behavior of sexual assault victims.”

Evidence cannot be both necessary, lest the jury find the victim’s testimony incredible because of its own “common misperceptions,” and also be considered strong evidence, as well.

Furthermore, the State presents expert testimony of this sort in nearly every sexual assault case; the only cases in which the state does not is when the evidence of guilt actually is overwhelming. By citing the admission of such evidence as a factor to support its conclusion that the evidence of guilt was overwhelming, the court is setting precedent that starkly conflicts with actual trial practice.

While the court classified M.L.‘s testimony as being convincing, the court also found that Anderson’s defense was weak — another conclusion not supported by the evidence.

The defense in this case was that no sexual contact occurred. This is not a case where the defense could be called preposterous, as was the case in State v. McDowell, 2004 WI 70, 272 Wis.2d 488, 681 N.W.2d 500.

In McDowell, the court found that trial counsel had made errors, but found no prejudice, largely because of the ridiculous defense theory.

In McDowell, the police recovered, from the sidewalk where the sexual assault occurred, a mixture of the defendant’s semen, and the victim’s saliva. DNA evidence showed the probability of selecting a person at random with the same DNA profile as McDowell as approximately one in six billion.

In the face of this evidence, McDowell contended that he had oral sex with his girlfriend on the night before the assault in the exact same location as where the sexual assault concerned. The court wrote, “McDowell’s defense depended not only on the jury’s acceptance of his oral-sex-the-night-before account, but also on the extraordinary coincidence of the victim’s semen-filled saliva landing on the exact location of his ejaculate.”

The Supreme Court understandably found the defense preposterous, and the State’s evidence overwhelming. Id., 681 N.W.2d, at 516-517, and thus, held that any error by defense counsel was not prejudicial.

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In the case at bar, in contrast, the defendant argued that the crime simply never occurred at all, a reasonable defense where there is no physical evidence or corroborating witnesses. It is noteworthy that the court cites not a single example from Anderson’s testimony to support its claim that the testimony was rambling and confusing.

Furthermore, even if it were confusing and rambling, however one defines that, it is a radical extension to go from finding no prejudice where the defendant’s testimony was “preposterous” and “far-fetched,” as the court did in McDowell, to finding no prejudice just because the defendant’s testimony was rambling and confusing.

If the decision is published, as recommended, and not reversed, it presents a dangerous precedent — classic “he-said-she-said” cases, lacking any physical evidence or corroborating witnesses, can be considered strong when reviewed for harmless error or prejudice, even though the Supreme Court in Thiel expressly holds to the contrary.

– David Ziemer

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David Ziemer can be reached by email.

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