Judge rules that Oconomowoc man’s defense was deficient; releases him from prison after serving 30 months
Why is an Oconomowoc man, convicted of sexual assault of an elementary schoolgirl in 2012 and sentenced to 10 years in prison back in the community after serving just 30 months of his sentence?
Hold onto to your outrage. The answer is complex.
The bottom line is a district court ruling that says the man did not receive proper legal representation and that if he had, the jury’s decision in his trial might have been different. In an oral decision delivered July 22, Waukesha County Circuit Court Judge Michael O. Bohren said that Anthony Pico’s attorney’s “performance as a defense attorney was deficient.”
The court did not say Pico, if tried again, would be found innocent. It simply said that his initial attorney, Jonathan LaVoy, did not provide adequate representation. It further said that our legal system requires such legal representation.
More specifically, Lavoy did not explore Pico’s mental state. If it had, the defense may have considered a not guilty by reason of insanity plea. Pico had been involved in a motorcyle accident in 1992 which resulted in what has been called serious, permanent brain injury. One of the expert witnesses called by Pico’s new defense team, Tracy Woods and Associates, said that the brain damage Pico suffered , “was permanent, did result in a lower IQ for Mr. Pico, and it resulted in deficits in the cognitive, emotional, and behavioral functioning areas …” That witness also said Pico had “a frontal lobe syndrome, which involves involuntary acquiescence to authority, that is giving in.”
LaVoy said he knew about the accident, but he did not investigate its impact because he saw no indication in his dealings with Pico that there was any impairment. In its ruling, the court said, citing other court findings, that “a defense lawyer is to conduct a thorough investigation of the case,” and that LaVoy had not done that.
At the appeal hearing, Pico’s new defense team produced witnesses that said Pico’s injury affected his ability to respond to questions asked by an Oconomowoc police detective who went to Pico’s home after the incident at the school. In addition, those witnesses said his brain injury made him tend to agree with and not challenge statements made to him by the detective that were false.
Using false information when questioning suspects is not illegal. Pico was told that there was a video of him in the classroom with the girl, that there were witnesses, and that there was other evidence, including DNA. Pico’s responses, made without an attorney present, showed him to be flustered and confused. He denied touching the girl sexually, but admitted touching her. The interview was videotaped and used by the state at the trial.
The court said that since LaVoy did not present any witnesses, the videotape was a primary piece of evidence against Pico and LaVoy should have challenged its use given Pico’s brain injuries and his susceptibility to agreeing to statements as a way of getting the interview over.
Additionally, his new legal team challenged the questioning methodology, called the Reid Interrogation Technique, producing an expert who said the technique was rarely used today because it tended to produce false admissions of guilt from suspects. He said a new questioning methodology is now used that was not leading or directed.
In addition, LaVoy did not challenge statements that were made by prosecution witnesses that the court felt could have and perhaps should have been challenged, since LaVoy did not present any defense witnesses, nor did he have Pico testify on his behalf.
LaVoy’s defense strategy rested on Lavoy’s belief that the state had not proven beyond a reasonable doubt that Pico had assaulted the girl, and on Pico’s denial that he had touched the girl in a sexual manner. Obviously, LaVoy was wrong, because the jury deliberated for less than four hours before returning a guilty verdict.
No witness called by the state said they saw the touching take place. There was also no physical evidence of an assault. The case boiled down to the girl’s description of what she said took place. She did testify in court and LaVoy did question her. He told the court that after her testimony he did not think the jurors would convict because the girl’s testimony was not strong. In his ruling, Judge Bohren said that the girl gave “equivocal answers at times, showed that she was subject to having answers suggested.”
He added, “In evaluating all that testimony, I’m satisfied that issue of the 1992 injury did have a broad impact on the case, it would impact strategy, the frontal lobe injury itself would have broad significance in developing trial strategy as well as developing the theory of the case.”