Appeals court orders new trial for Oconomowoc man convicted of 1st degree sexual assault of a child under the age of 13

Anthony Pico served 2 1/2 years of six-year sentence while appealing his conviction; ineffective legal representation cited

 

Editor’s note: Technically, the decision described in this article was made at the Circuit Court level, not at the state level.

An Oconomowoc man convicted of first degree child sexual assault of a student at Summit Elementary School in 2012 has had his conviction vacated by a state appeals court on July 22, and the man is back in Oconomowoc pending a new trial after serving 30 months of his sentence.

This development has upset some residents of Whitman Hills, where the man, Anthony Pico, lives on Browning Circle. He was released from state prison at Red Granite after his legal team convinced the appeals court that his initial legal representation was “ineffective.”

Pico was arrested in April of 2012 after a female student at the school told her mother that Pico, a volunteer in her class, inappropriately touched her. The mother told school officials who notified Oconomowoc police. They interviewed Pico at his home and subsequently, based in part on his responses to questions, arrested and charged him with first degree sexual assault.

The case, however, did not go to trial until December, due to a series of issues raised by Pico’s defense team, Kim & Lavoy, S.C..

When the case was heard in Waukesha County Circuit Court before a jury, the jury returned a verdict of guilty after deliberating only several hours. Pico did not testify in his defense at the trial. He did admit touching the girl, but through his attorneys claimed it was not sexual in nature.

Circuit Court Judge William Domina sentenced Pico to six years in state prison with 10 years of probation to be served upon his release.

Pico’s attorneys filed an appeal almost immediately after his sentencing. Ultimately, a new set of defense attorneys, Tracy Wood & Associates, Madison, told the Wisconsin Court of Appeals, that Pico’s initial defense team did not provide adequate representation. They claimed that Pico defense failed to uncover that the Oconomowoc man had suffered severe and permanent brain injuries in a motorcycle accident years ago when he lived in California and that his diminished capacity left him unable to adequately assist his attorneys in preparing a proper defense.

They successfully argued that if his defense team had presented the court with testimony from a series of medical experts, a not guilty by reason of insanity plea would have been entered. His new attorneys said Kim & Lavoy did not explore Pico’s medical history and that if they had, they would have discovered his reduced mental state.

They further contend that because of the brain injury Pico was inclined to agree with what he was told happened by Andrew Rich, a police investigator, who told Pico that a video existed of him in the classroom and that the girl claimed he has assaulted her. Pico told the investigator that he had touched the girl’s leg and that he was just being playful. He denied touching her in a sexual manner.

At his trial, Pico also refused to say that he assaulted the girl and his refusal angered the trial judge. Had he changed his plea to guilty and avoided a jury trial, Pico probably would have received a lighter sentence, possibly even prohibition.

In a letter to Domina, the girl’s parents and the girl said that if Pico admitted his guilt and apologized they would support a sentence for time served (at that point 69 days) and probation.

When Pico did not accept guilt, the district attorney’s office recommended eight years in prison, plus 10 years of supervised probation.

Domina decided on the six-and -10 sentence.

At present, Pico is free on $20,000 cash bond. Because the sentence was vacated, he is not a convicted felon and is not on the state’s sexual offenders registry list.

That means upon his release the state Department of Corrections did not notify Oconomowoc Police that Pico was back in the community. It also meant that residents of Whitman Hills were not informed of his release, which angered residents who observed Pico in the neighborhood

It is now up the Waukesha County District Attorney’s office to file an appeal of the vacate order. If that fails, the office then must decide if it wants to proceed with another trial. A hearing on the matter is set for January, 2016.

Read article on the court’s the factors cited in the court’s decision.

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