By Gretchen Schuldt
A defense lawyer who did not interview potentially helpful witnesses and cannot give a reason for failing to do so was ineffective in the representation of his client, a state appeals judge ruled this week.
District III Court of Appeals Judge Mark A. Seidl, in rejecting rulings by St. Croix County Circuit Judge R. Michael Waterman, threw out the third-offense drunk driving conviction of Tanya Lynn Schmit and sent the case back to circuit court for further proceedings.
During a post-conviction hearing, defense lawyer Aaron A. Nelson testified that “there was no strategy involved at all” in his non-investigation of one of the potential witnesses and that he simply “didn’t do it,” according to Seidl's one-judge opinion.
The main question at Schmit's trial was whether she was driving when the car she was in crossed the center line of a road and crashed into a bridge wall. Another woman, Britney Aumer, was with Schmit in the car when the accident occurred.
Neither Schmit nor Aumer testified at Schmit's jury trial. It is not clear whether Aumer could be found in time to testify, Seidl wrote.
A police officer testified at trial that Schmit said both that she was the driver and that she was not the driver. Aumer declined to give a statement to police.
About three years after the accident and two weeks before trial, a witness, Holly Korn, told Schmit that she saw Aumer leave the car by the driver’s door. Korn had not spoken up earlier because she assumed Aumer was the one charged with drunk driving, Seidl said.
Schmit’s estranged husband, Chad, told Schmit before the trial that a distraught Aumer talked to him on the phone after the accident and acknowledge being the driver. Chad and Schmit owned the business that owned the vehicle.
Schmit told her lawyer that there were two potential witnesses and that he should talk to them.
During the post-conviction hearing, attorney Nelson testified that he knew about Chad even before Schmit told him, and also said he learned of the two witnesses about the same time.
"There is a reasonable probability that, had (the witnesses) testified, the result of the proceeding would have been different."
Waterman, the circuit court judge, ruled that the lawyer was not ineffective because a reasonable attorney would not have had time to investigate the new information obtained a week or two before trial.
Seidl rejected that reasoning, saying “Nothing in the record on appeal supports" the contention that Nelson did not have enough time.
"Rather, and contrary to the circuit court’s statement, Schmit did present evidence clearly showing that the efforts could have been completed in time for trial….” he wrote.
Waterman also ruled that even if Nelson had been ineffective, the outcome of the trial would not change and Chad’s testimony about Aumer’s phone call would have been inadmissable heresay.
Wrote Seidl: “The court failed to provide any basis for its conclusions. ... There is a reasonable probability that, had Chad and Korn testified, the result of the proceeding would have been different. As an initial matter, the record sufficiently establishes that both witnesses could have significantly undermined the State’s case if they had testified at trial.
Gretchen Schuldt is executive director of the Wisconsin Justice Initiative.
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