Criminal Procedure — ineffective assistance — conflict of interest

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Wisconsin Court of Appeals

Criminal

Criminal Procedure — ineffective assistance — conflict of interest

Where the defendant’s attorney had a conflict of interest, and advised a witness to cooperate with police, he rendered ineffective assistance of counsel.

“Whether Sara had perjured herself during the first trial or not, advising Sara to cooperate and be interviewed by the investigator appears to have been in Sara’s interest. If Sara was telling the truth, the interview gave her an opportunity to convince the investigator that she should not be charged with perjury. If Sara was not telling the truth, cooperating with the interview was at worst a calculated risk that she could avoid perjury charges by being cooperative. However, although participating in an interview with the investigator was in Sara’s interest, it was not in Villarreal’s interest.”

“Every time a witness tells his or her story, it provides an opportunity for there to be variations in that witness’s assertions. According to Sara’s testimony, the conversation she overheard between the victim and female relative regarding obtaining government benefits if they accused their parents of sexual or emotional abuse took place in February 2006. Sara testified at the first trial on December 10, 2008. The interview involving Attorney Benavides took place on January 14, 2009. Sara then testified at Villarreal’s second trial on June 24, 2009. Whether Sara was telling the truth or not, there was likely to be differences each time she told her story, especially in light of the fact that the final telling of the story took place nearly a year and a half after the alleged conversation was overheard.”

“Thus, from Villarreal’s perspective, the interview with the police officer had no significant upside and a serious potential downside because of the likelihood that it would produce additional inconsistent statements that could be used to impeach Sara at a second trial. It is hard to imagine that a lawyer only concerned with Villarreal’s interests would have advised a witness to submit to a police interview between the two trials.”

Reversed and Remanded.

Recommended for publication in the official reports.

2011AP998-CR State v. Villarreal

Dist. IV, Dane County, Anderson, J., Sherman, J.

Attorneys: For Appellant: Villarreal, Jesus C., pro se; For Respondent: O’Brien, Daniel J., Madison; Karst, Mary Ellen, Madison