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Ineffective Assistance of Counsel-Postconviction Relief

By: WISCONSIN LAW JOURNAL STAFF//May 27, 2024//

Ineffective Assistance of Counsel-Postconviction Relief

By: WISCONSIN LAW JOURNAL STAFF//May 27, 2024//

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WI Court of Appeals – District III

Case Name: State of Wisconsin v. Jobert L. Molde

Case No.: 2021AP001346-CR

Officials: GILL, J.

Focus: Ineffective Assistance of Counsel-Postconviction Relief

Molde had been convicted of first-degree sexual assault of a child under twelve and incest with a child. He appealed the judgment and an order denying his motion for postconviction relief, arguing that his trial counsel was constitutionally ineffective. The appellate court found that Molde’s counsel was deficient in not objecting to an expert’s testimony regarding the rarity of false child sexual assault allegations. During the trial, an expert, Dr. Alice Swenson, testified that false disclosures in child sexual assault cases are extraordinarily rare, occurring in only about one percent of cases. This testimony was in response to a juror’s question and was highlighted by the prosecution during closing arguments. The appellate court held that this testimony constituted impermissible vouching for the victim’s credibility, a well-settled issue in Wisconsin law that Molde’s counsel should have objected to.

The court determined that the deficient performance prejudiced Molde’s defense, undermining confidence in the trial’s outcome. The expert’s testimony directly endorsed the victim’s credibility, influencing the jury’s decision in a case where the evidence for and against guilt was closely balanced. Additionally, the court addressed other claims of ineffective assistance but found that trial counsel’s strategic decisions were reasonable under the circumstances.

The decision emphasized that trial counsel’s failure to object to the expert’s vouching testimony, particularly given its repeated emphasis by the prosecution and its response to a juror’s direct question, created a reasonable probability that the trial’s result would have been different without the error.

Reversed and remanded.

Decided 05/21/24

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