Jan. 13, 2010 – A man convicted of sexually assaulting his daughter on the strength of her testimony that she contracted herpes from him persuaded the Wisconsin Court of Appeals to grant a new trial because testing revealed he never had herpes.

In State v. Jeffrey A.W., 2009AP645, the court discounted Jeffrey A.W.’s allegation that his trial counsel had ineffectively represented him because she did not seek testing to show the absence of a herpes virus. The court explained that without finding the trial attorney ineffective, it determined that the true issue of the case had not been fully tried, requiring a new trial in the interest of justice.

Allegations of sexual assault

After she discovered she had herpes at the age of 15, Jeffrey’s daughter, AMK, told police that her father sexually assaulted her three times by mouth-to-genital contact when she was three years old. AMK said that she had no other sexual encounters.

Jeffrey’s trial attorney anticipated that herpes would be a central issue at trial so she researched the Internet and reached out to experts – including Jeffrey’s own doctor – before concluding that existing blood tests for herpes were not definitive. Fearing a false positive could be worse than not having a test at all, trial counsel did not have Jeffrey tested.

Consequently, the trial became a he-said-she-said credibility battle in which Jeffrey took the stand in his own defense. Jeffrey testified he never had sex with his daughter, that AMK took birth control pills so that she might be sexually active, and that a hostile divorce from AMK’s mother could have prompted AMK to make the story up. Both Jeffrey and his current wife testified that neither of them had ever been treated for a sexually transmitted disease or had cold sores or other outbreaks to indicate a sexually transmitted disease.

The prosecutor told the jury that the birth control pills were only to regulate AMK’s period and that the only evidence presented indicated that Jeffrey was the cause of AMK’s herpes. The prosecutor asked the jury, “Where’s the doctor to say he doesn’t have herpes?’

Following his conviction, Jeffrey obtained two negative herpes tests backed by methodology that was available at the time of his trial. After the circuit court denied postconviction relief, Jeffrey took his case to the court of appeals.

Not ineffective

In an opinion authored by Chief Judge Richard S. Brown, the court of appeals said that this case does not amount to ineffective assistance of counsel as defined by Strickland v. Washington, 466 U.S. 668. Specifically, the court said that trial counsel’s failure to realize the availability of adequate testing was not “deficient” performance given that she recognized the importance of the herpes issue and prepared to address it.

“There is no question that trial counsel’s investigation yielded the wrong information,” the court wrote. “But that does not necessarily equate to deficient performance. She tried her best. She just looked in the wrong places.”

Interest of justice

Without finding defense counsel ineffective, the court of appeals concluded that the real controversy was not fully tried and so it must reverse. The court explained that reversal is necessary “to maintain the integrity of our system of criminal justice and so that we can say with confidence that justice has prevailed.”

The court compared this case to State v. Hicks, 202 Wis. 2d 150 (1996), in which the prosecution “assertively and repetitively” used hair evidence to convict Anthony Hicks as the only black man to ever enter the apartment of a sexual assault victim. In Hicks, DNA analysis of the hair performed after trial excluded Hicks as the source of the specimen, leading the supreme court to conclude the real controversy was not fully tried.

A footnote in State v. Flynn, 190 Wis. 2d 31 (Ct. App. 1994), suggests that reversal is inappropriate when the defendant failed to prove his attorney was ineffective – even if a question remains as to whether the attorney performed deficiently by not fully trying the case. The court of appeals distinguished this case, finding that “the issue here is not whether the attorney failed to fully try the case.”

“Rather, there was a test out there that was available at the time of trial which could have had great impact on the credibility battle between the prosecutor and the defendant, had it been presented,” the court continued. “But, through no one’s fault, the jury did not hear this evidence. The case before us is a Hicks case.”