By Gretchen Schuldt
A Milwaukee County judge must hold a hearing to determine whether a defense lawyer was ineffective because he told a jury he wasn't sure he believed his client, failed to impeach witnesses who provided inconsistent statements, and did not challenge key testimony that was clearly incorrect, a state appeals court said Tuesday.
The hearing was sought by Ronald Lee Gilbert, who was convicted of trafficking of a child, second-degree sexual assault of a child, and intentional child abuse.
Gilbert's lawyer, Robert L. Taylor, during his closing argument to the jury in Gilbert's trial, questioned the truthfulness of his client and witnesses against him.
"I’m not sure I believe any of them, to be quite frank," Taylor said. "A little bit here, a little bit there, but I’m not sure I believe any of them. ... Maybe they get this, but morality is what’s missing here. There’s no good guys."
Taylor also told the jury that in the United States "we would rather...let some scumbags go free because we can't find that person guilty if we don't have enough evidence."
While Taylor did not mention Gilbert by name, Appeals Judge Timothy G. Dugan wrote, "the jury could reasonably understand that trial counsel was referring to Gilbert."
Taylor was appointed by the State Public Defender’s Office to represent Gilbert. Such lawyers are paid $40 an hour, the lowest hourly rate in the nation and one that many say is not enough to convince experienced and quality lawyers to take public defender appointments. The State Supreme Court, however, has declined to increase it.
Gilbert didn't have a choice in accepting Taylor, whose license previously had been revoked for a variety of reasons, including felony convictions. Taylor was Gilbert's second lawyer. When Gilbert sought to replace his first attorney, Circuit Judge Rebecca Dallet allowed him to do so, but warned that he "would get one more attorney appointed and if he doesn't get along with the new attorney, he will represent himself," according to court records.
The state alleged in its criminal case that Gilbert had oral sex with a 14-year-old girl and sold her to his friend, Brandon Pratchet, for prostitution for $100 and a piece of stereo equipment.
The girl and Pratchet testified against Gilbert at trial. Pratchet had a plea deal with the prosecution that reduced from 98 years to 25 years the maximum prison term he would face, Dugan wrote. Prosecutors also agreed to inform Pratchet's sentencing judge about his cooperation.
Gilbert was ultimately convicted and sentenced by Circuit Judge Dennis R. Cimpl sentenced Gilbert to 10 years in prison and five years of extended supervision.
Cooperator Pratchet was far more fortunate. Dallet sentenced him to three years probation one one count of soliciting a child for prostitution. Three other counts – keeping a place of prostitution, panderinging/pimping, and second degree sexual assault of a child, were dismissed but read in. Dallet stayed a sentence of four years in prison and three years extended supervision.
The officer's testimony was "inaccurate," Dugan wrote. "It is undisputed that cell phone mapping does not provide the location of a cell phone within feet."
Key to the case against Gilbert was a police officer's testimony about the location of Gilbert's cell phone at the time that Pratchet and the girl said Gilbert was at an Econo Lodge selling the girl. Gilbert said he was not there.
The officer, who was not an expert in cell phone technology, testified that Gilbert's cell phone data proved he was within 120 feet of the hotel at the time.
"However," Dugan wrote, "that testimony was inaccurate – the data did not indicate that Gilbert's cell phone was within 120 feet of the Econo Lodge....It is undisputed that cell phone mapping does not provide the location of a cell phone within feet."
The map the officer relied upon when testifying showed three 120-degree sectors, not 120-foot
sectors, Dugan wrote.
The prosecutor emphasized the erroneous cell phone location information during her closing argument. Taylor never challenged it – the critical error was not exposed at trial.
At a post-conviction hearing, rejecting testimony from an expert witness for the defense that it is "completely impossible" to use historical cell phone records to put a phone within 100 feet of a specific location, Circuit Judge Stephanie Rothstein ruled that Gilbert had not shown the cellular information was inaccurate. She did not rule on whether Taylor was ineffective, according the appeals decision and a defense brief filed in the case.
Besides failing to challenge the cell phone information, Taylor failed to either obtain or review discovery available to him, including the cellular information, Gilbert alleged in his post-trial motion. Rothstein rejected the argument without a hearing, but the appeals panel ordered one.
"The conflicting facts presented involve credibility determinations and were improperly resolved without a hearing," Dugan wrote. He was joined in his opinion by District 1 Court of Appeals Judges Joan F. Kessler and William W. Brash III.
Gilbert also deserves a hearing on whether Taylor was ineffective when he did not impeach the girl or Pratchet with prior inconsistent statements, the appeals panel said. Gilbert said the girl previously had backed up his version of events.
"We emphasize that we are not deciding that trial counsel was ineffective, only that Gilbert’s original and supplemental post-conviction motions were sufficient to require that the post-conviction court conduct an evidentiary hearing," Dugan said.
Taylor has an interesting history, records show. He was licensed in 1979, but his license was revoked in 1987 following his conviction for felony theft from two clients. Later, in 2003, it was retroactively revoked effective Dec. 14, 1992 for other violations, including a 1990 conviction in federal court for conspiracy to defraud by misapplying funds and embezzlement from a federal credit union, according to State Supreme Court records. He also represented three clients in 1985, when his license was suspended for failure to comply with continuing legal education requirements.
The State Supreme Court reinstated his license in 2006 over the objections of the Office of Lawyer Regulation.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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