In re E.S.,







Filed 3/10/09




CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re E.S., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. E. S., Defendant and Appellant.	A118547 (Humboldt County Super. Ct. No. JV060084)

E.S. appeals from the judgment of the juvenile court sustaining a petition alleging that he comes within the provisions of section 602 of the Welfare and Institutions Code. His court-appointed counsel initially filed a brief raising no legal issues and asking this court to conduct an independent investigation of the record pursuant to People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071]. After conducting that review, we issued an order requesting supplemental briefing on the issue whether the Humboldt County Superior Court erred in denying appellant’s motion for a new jurisdictional hearing.
Concluding it was error to deny the motion for a new jurisdictional hearing, we shall reverse and remand for such a hearing.
Facts and Proceedings Below
On October 4, 2006, the District Attorney of Mendocino County filed a three-count petition pursuant to Welfare and Institutions Code section 602 alleging that two days earlier appellant attempted to commit a lewd and lascivious act with a child under the age of 14 (Pen. Code, §§ 664, 288, subd. (a)), and on the same day annoyed or molested and made a criminal threat against the same child (Pen. Code, §§ 647.6, subd. (a), 422). Eight days later, the district attorney amended the petition to additionally charge a second attempt to commit a lewd or lascivious act with the same underage child.
Appellant, who was 17 years of age at the time the petition was filed, is a Native American eligible for enrollment in the Yurok Tribe. He had been previously declared a ward of the court in 2004 as a result of his commission of misdemeanor vandalism and, thereafter, battery on school property and theft, both also misdemeanors. The two latter offenses violated terms of the probation appellant was placed on for the vandalism. Appellant was again placed on probation and ordered to participate in the New Horizons program. It was difficult to find a residential placement for appellant because he had been abandoned by his mother in 2002, and his father was confined in the Humboldt County Correctional Facility on charges of vehicle theft and evading the police. Child Protective Services (CPS) was unwilling to place appellant with his grandmother, because her adult son Randall and his four children lived with her, and CPS believed appellant’s claim that he had been physically abused by Randall, who had a criminal record. In 2004, appellant was permitted to live with his aunt Sherry S. in Mendocino County. In June 2005, he absconded from that placement and was subsequently apprehended and detained in the Mendocino County Juvenile Hall on February 8, 2006. With court approval, appellant was released from the New Horizons program on August 18, 2006, in order to facilitate another trial relative foster placement with Sherry S. It was shortly after this second placement with Sherry S. that the district attorney filed the petition before us.
On October 25, 2006, the day before the jurisdictional hearing was scheduled to begin, appellant moved for a one-week continuance. In support of the motion, Deputy Public Defender Shane Hauschild filed a declaration stating that he had been informed by a relative of appellant that the alleged victim and her mother “may have made similar accusations of molestation in the past” and that this information may lead to “exculpatory” evidence. Defense counsel also filed a petition pursuant to Welfare and Institutions Code section 827 seeking permission to inspect juvenile court records maintained by CPS apparently relating to the minor victim and/or her mother. The court granted a one-week continuance, resetting the jurisdictional hearing for November 3, 2006.
On October 31 the court conducted a hearing regarding appellant’s motion to inspect juvenile records held by CPS. A representative of the Mendocino Department of Social Services testified that she had reviewed the CPS records “but I d[on’t] find anything that really addressed the [minor victim’s] honesty, truthfulness, veracity, or credibility.” Defense counsel then pressed the court to allow inspection of reports of suspected child abuse or allegations by others that the minor had been untruthful; that is, anything “that’s clearly relevant to her credibility whether it has to do with child abuse [or] not.” The juvenile court agreed to inspect in camera the juvenile records produced by the Department of Social Services.
The court conducted a hearing the next day at which it stated that the records produced by Social Services in response to appellant’s motion to inspect revealed nothing warranting disclosure. According to the court, the records contain “some matters” regarding the victim but “nothing about any claims or allegations by the victim that she was molested which were either substantiated or not substantiated.” The court ordered a copy of the records produced to “be put in a file and sealed, not to be opened [by county counsel] until further order of the Court so that they’re part of the record in this case.”[1]
The Jurisdictional Hearing
The contested jurisdictional hearing held in the Mendocino Superior Court on November 3, 2006, was exceedingly brief. Four witnesses testified: the victim, T.S., who had just turned 10 years of age; her mother, Sherry S.; Mike Dygert, a detective with the Mendocino Sheriff’s Department; and appellant.
T.S. testified that on the evening in question she was alone in her house with appellant, who was her nephew, and her two brothers, I.S and S.S, all of whom lived in the house together with her mother, who was at the time at her boyfriend’s house. According to T.S., appellant came into her mother’s room, where T.S. was then sleeping, awoke her by pulling down her sweatpants and, when they were down, asked her to suck his penis. After she began yelling for her mom and said she would tell what appellant had done, appellant assertedly told her “You better not tell anybody” or “else I’ll hurt you.” Appellant then stopped what he was doing and left. T.S. stated that appellant never took his clothes off and she never saw his “private parts,” though he had put his hand under his belt. T.S. said she telephoned her mother, who returned home shortly and later called the police.
Sherry testified that appellant was related to her deceased husband and the nephew of her children, and she had known him since he was two years of age. She was aware he was on probation at the time she left him alone with her children, but knew him to be “[v]ery kind and gentle towards my kids” who “seemed to like his company” and she “had never seen him exhibit any behavior that would give [her] cause for concern.” After she returned home and heard from T.S. what had happened, Sherry called Jason S., “an uncle—or brother of [T.S.], an older brother, and . . . an uncle of [appellant],” because she was worried and scared. Jason wasn’t home but Sherry spoke with his wife, Arla S., “another sister of [T.S.]’s and an aunt to [appellant].” Arla said they would call back when Jason returned. A few minutes later, Arla called back and said “they were unwilling to get involved.” Sherry then called the police. Sherry also testified that later, after the police left with appellant, she found a “bulky” black leather belt with a silver buckle in her bedroom. The belt belonged to her but appellant had borrowed it, because “he had some pants that were too big.” Sherry said she had seen appellant in the house earlier that day with the belt.
On cross-examination Sherry said she did not call the police immediately after arriving home and hearing from her daughter what appellant had done because appellant was doing well in school and sports, and thereby turning his life around, and reporting him to the police might set him back. She was also “worried about the repercussions from the relatives because I didn’t want to overreact.” However, because child molestation was prevalent in her family, Sherry believed her daughter’s accusation was truthful and called the police. Sherry testified that molestations had happened “not necessarily to me but to all my cousins, all my siblings, everybody I know. And I’m the only one of two people in my extended family of about three generations that I know wasn’t molested as a child.” When Sherry made this statement, defense counsel said “Okay. I don’t have any more questions.”
Officer Dygert testified simply that appellant had been asleep when he and another officer arrived at the residence in response to the call from Sherry. After talking to the victim and Sherry, he woke appellant up and arrested him. Because he was “groggy” Dygert did not interview appellant at the scene but took him to the police station. He did not recall whether appellant was wearing a belt at the time he was arrested or later at the police station. Although the officer’s conduct was “accusatory,” appellant was at no time belligerent or uncooperative. Officer Dygert was never asked and did not say what statements, if any, were made to him by appellant.
Appellant testified that at the time of the alleged offenses he had been living at Sherry’s house for about six weeks. He was placed there by county officials after being found guilty of “fighting in school and getting caught at school with drugs,” and was still on probation for those offenses, which occurred almost a year earlier. Appellant had good relations with all Sherry’s children. He played football with her sons, and helped them with their homework and chores. Appellant stated that Sherry often left him alone with one of her sons, I.S., but except on one occasion she always took the other two children with her. On one occasion, however, Sherry asked him to watch all three children while she was away. Appellant told her he would only watch I.S. “[b]ecause [S.S.] was too young and him and his brother fight a lot,” and he wouldn’t watch the daughter “because I didn’t feel, like, right around her.” Appellant said that although he was sometimes “uncomfortable” around T.S., he “did not have any problems with her” on the day in question, during which she played happily with her brothers. Appellant attributed his feeling about T.S. to the fact that Sherry had told him that T.S. had been raped by one of his uncles. He stated that he was “disgusted” by this information and that “I just don’t want to be one of those people because, you know, if I go to prison some day and this comes up, and I just hear a lot about them and stuff, you know.”
When reminded of Sherry’s testimony that at the time of the alleged offense he had been trying to “turn [his] life around” and asked why he was doing so, appellant replied: “I was tired of being locked up, and I just wanted to really change my life because I couldn’t—I was just tired of being around walls. I felt like I was taking my father’s footsteps. But after I completed my program, I was, like, really wanting to turn my life around. It was going [in] that direction. But then this crime came up.” Appellant insisted that that charged molestation and threat never occurred. He testified that he went to bed about three minutes after Sherry left the house at 10:00 p.m., fell asleep almost immediately, and stayed asleep until he was “woken up by the cops.” Appellant was sure he went to bed at about 10:03 because when Sherry got off the phone with her boyfriend and went to her room and left, he saw on his computer that it was ten o’clock “[a]nd then three minutes later I just jumped off and went to bed.” When asked whether, as T.S. testified, he had a belt on at the time he molested her, appellant stated that he did not have a belt on at any time during the night in question or during that day. He was at all times wearing the blue pants in which he was sleeping when awoken by Officer Dygert. Appellant’s testimony on direct examination ended with the following short colloquy:
“Q. Did you ever at anytime that night go into Sherry’s bedroom [in which the victim claimed she was sleeping when the molestation occurred]‌
“A. No, I did not.
“[¶] . . .[¶] Q. Did you ever talk to [the victim] that night‌
“A. No, I did not.
“Q. And you never woke up that entire night‌
“A. Never. The only time I woke up is for the cops.”
On re-direct, appellant stated that he had a girlfriend his own age (17) with whom he was still “involved,” and had dated other girls in the past, the youngest of whom was 16.
At the close of the jurisdictional hearing the court found appellant guilty beyond a reasonable doubt on one of the two alleged attempts to commit a lewd or lascivious act with a child under the age of 14 (Pen. Code, §§ 664, 288, subd. (a)) and on the charge that he annoyed or molested a minor (Pen. Code, § 647.6, subd. (a)). The prosecution thereupon dismissed the allegation of criminal threat. No finding was made with respect to the second alleged attempt to commit a lewd or lascivious act with the same victim.
The juvenile court’s finding rested on the testimony of the victim. As the court stated: “I think fundamentally what it comes down to is whether the child is credible or not. And I’ve had the opportunity to observe her. I didn’t see any signs that she was using language that was the obvious result of coaching. She’s amazingly smart and was a little nervous, but did pretty good in coping with the whole situation. . . . I didn’t see any signs that she wasn’t truthful. And I think that I’m satisfied beyond a reasonable doubt that she did tell the truth and her testimony . . . clearly establishes that the elements are met. [¶] She was under 14, and she was touched . . . and it was with the intent to gratify the minor’s sexual desires.
At the close of the jurisdictional hearing, the district attorney indicated there was reason to believe appellant was not then residing in Mendocino County but with his father in Humboldt County, and the court should therefore consider transferring the case to that county. (Welf. & Inst. Code, § 263.) On November 14, 2006, after the probation department had also recommended that the case be transferred, the court ordered appellant’s case transferred to Mendocino County.
The Motion for a New Jurisdictional Hearing
On February 16, 2007, appellant’s newly appointed counsel, Humboldt County Deputy Public Defender Joanne Carter, moved for a new jurisdictional hearing on the ground that appellant had been denied the effective assistance of counsel during the jurisdictional proceedings in Mendocino County. In support of the motion, she argued that his former attorney, Shane Hauschild, “knew that the case needed investigation for a proper defense but chose not to request that assistance due to the mistaken belief that he was not entitled to confidential court experts,” such as “ex-parte funding for an investigator, psychological evaluation and polygraph examination.” Appellant contended that his former counsel failed to request a psychological evaluation and other “ancillary defense services” he knew to be necessary, and that the failure to request such assistance was “[f]or his own personal reasons (fear of being fired) not for tactical reasons.”
In her brief in support of her motion for a new jurisdictional hearing,[2] Carter stated that prior counsel was ineffective also because he failed to voir dire T.S. to determine whether she was incapable of understanding the duty to testify truthfully, he failed to adequately inquire of T.S. during his nine-minute cross-examination whether she understood the difference between the truth and a falsehood, and whether she had discussed her testimony with others and if so what was said during those discussions. He was ineffective also, Carter argued, in failing to require that T.S., on the record, take the oath required by Evidence Code section 710.[3]
The motion further alleged that Hauschild was ineffective because there was at the outset a need and good cause for a continuance of more than one week, and his failure to seek an adequate continuance was tactically and otherwise unjustified and based upon an erroneous understanding of the law. Carter urged it was also ineffective and unprofessional for prior counsel to fail to request a continuance after Sherry testified she was “only one of two people in my extended family of about three generations that I know that wasn’t molested as a child.” “Unbelievably,” appellant’s new counsel argued, “after this bombshell of a disclosure, the defense attorney’s response was ‘Okay. I don’t have any more questions.’ How can this be‌ The witness in this case, a 10 year old girl, apparently grew up in and around a family of three generations experiencing molest. Does this not warrant at least some further examination on the stand, at a minimum, and then possibly a further continuance for further investigation.” Carter complained as well that former counsel failed to impeach T.S. with discrepancies between the description of appellant’s conduct she gave at the jurisdictional hearing and that she gave Officer Dygert when he interviewed her on tape on the night in question. The audio tape of Officer Dygert’s interview, attached to the motion papers, assertedly showed that Officer Dygert’s questions of T.S. were leading, and that her answer’s were coached by her mother. Hauschild never offered the audio tape of this interview, or the transcript thereof, as evidence. He also failed to offer in evidence the tape of Officer Dygert’s interview with appellant. This tape is assertedly significant not only because appellant vigorously denied T.S.’s accusation, as he has consistently done, but also because it shows the difficulty Officer Dygert had in waking him up and the depth of his sleep, which is arguably inconsistent with his participation in a molestation claimed to have just occurred. Finally, Carter argued that prior counsel inexcusably failed to interview Jason and Arla S., appellant’s uncle and aunt, with whom Sherry testified she spoke by phone shortly before she called the police. Carter argued the foregoing failures of counsel were highly prejudicial.
The motion for a new jurisdictional hearing also pointed out that the jurisdictional hearing “began at 10:10 a.m. and a recess was taken from 10:39 a.m. to 11:16 a.m. The matter was recalled and a recess was taken again from 11:54 a.m. to 1:32 p.m. The hearing resumed and was concluded at approximately 2:15 p.m.” Thus, appellant emphasizes, “[t]he entire contested hearing took less than two hours upon the conclusion of which, the court found the allegations . . . to be true.”
Hauschild, appellant’s former attorney, filed a lengthy declaration in support of the motion for a new jurisdictional hearing. He states that (1) he needed more than a week to investigate information he received from appellant’s relatives that might lead to exculpatory evidence, but erroneously believed he was only entitled to a seven-day continuance; (2) his “excessive caseload” made it impossible to “thoroughly review and litigate each and every case” he was then litigating, including appellant’s case;[4] (3) the Mendocino County Public Defender’s Office lacked an investigator and he was expected to conduct his own investigations, which was “all but impossible” in light of his heavy caseload; (4) he considered requesting an evaluation of appellant’s mental condition similar to that authorized by Penal Code section 288.1 but was told by the public defender that his office would not pay for one; (5) he did not ask the court to order and pay for such an evaluation because the court had told him a court-ordered evaluation would not be confidential; (6) he did not request a polygraph of appellant “because I know that the Courts will not pay for one and I knew from my conversations with the Public Defender that my Office would not pay for a polygraph”; and (7) he feared that “if I requested or attempted to demand funding for a polygraph for my client, my job would be jeopardized.” (Appellant’s new attorney obtained a polygraph test and submitted the results, which showed appellant’s denial of the charged offenses was truthful, to the court in support of the motion for a new jurisdictional hearing. As later explained, the result of the polygraph test was also discussed in a psychological evaluation considered by the court at the dispositional phase of the proceedings.) Hauschild asserts that his “numerous attempts to discuss my cases and caseload with the Public Defender were unsuccessful.” For example, when he told him his unmanageable caseload interfered with his ability to represent appellant and his other clients the public defender responded: “I’m doing a murder case, do you want to trade‌”
Hauschild’s declaration ends with the statement of his belief “that much more should have been done in defending [appellant’s] case. Specifically, this case required more resources, support from more experienced attorneys, proper investigation, sufficient investigative services, and assistance with an extremely serious W & I 602 petitions [sic] in addition to numerous contested LPS Conservatorship cases. None of these things were possible in light of my fear that I would lose my job if I pushed these issues with the [Mendocino] Public Defender.” Hauschild stated his investigation of the case consisted only of his conversations with appellant and request that the court inspect T.S.’s confidential juvenile court file, which he was not allowed to personally review. (See Welf. & Inst. Code, § 827.)[5]
Humboldt County Superior Court Judge Christopher G. Wilson conducted three hearings on the motion for a new jurisdictional hearing. Jason S., appellant’s uncle and Sherry’s cousin, testified that he attempted on several occasions to speak with attorney Hauschild before and during appellant’s jurisdictional hearing to provide information he thought Hauschild would find useful to appellant’s defense. Among other things, he thought Hauschild should talk to his wife about her phone conversations with Sherry before the latter called the police. Jason’s father, who was no longer alive, had had an affair with Sherry, who was his niece, and fathered two of her children, who were therefore Jason’s step-siblings. This incestuous relationship was controversial within the family’s tribe and created tension between Sherry and others in the family. Appellant often visited Jason, and sometimes brought Sherry’s two sons with him. Sherry felt Jason was competing with her for her sons’ attention and thought appellant assisted him in this, and she took out her anger by constantly threatening appellant. Jason thought it relevant to appellant’s defense that T.S. had been molested by one of Sherry’s uncles, who also tried to molest one of T.S.’s brothers. Sherry told Jason her ex-husband had also tried to molest her son I.S., and had broken the boy’s arm in the process, and then moved on to molest or try to molest T.S. Jason stated that Sherry told him she had “reported” the molestation or attempted molestation of T.S. Jason felt the molestations or attempted molestations of Sherry’s children by her uncle and her ex-husband, and her concerns about those molestations and others within the family, were the reasons she threatened appellant “in front of me and my wife and kids, [and] whoever else was around,” such as by telling him “ ‘I’ll send you back to Juvenile Hall.’ ”
Jason also thought it relevant that Sherry’s youngest son, S.S. was found at a daycare center “kissing on another boy, sucking on the boy’s penis” and T.S. attended the same daycare facility. Jason also wanted Hauschild to know that, though he loved T.S., who he referred to as his sister, she often lied. Recently, for example, one of Jason’s daughters was upstairs in his house on her birthday, and Jason instructed a nephew named David not to allow other children arriving for the party to go upstairs because they would tell her of the presents downstairs and spoil the surprise. When T.S. began walking upstairs, David tried to stop her and Jason heard T.S. respond that if he didn’t let her pass she would tell others “ ‘that you pushed me down the stairs and you hit me.’ ”
Finally, Jason thought Hauschild should know that Sherry told him she had initiated sexual intercourse with Jason’s nephew, Josh, who was under 18, and Josh confirmed this. Sherry told Jason that Josh “ ‘wants an older woman’ and stuff.” She also told him that she had sex with many other boys.
Because he thought the foregoing information would help Hauschild defend appellant, Jason repeatedly attempted to discuss it with Hauschild, but he “didn’t want to talk to me really.” Jason gave Hauschild his phone number and those of his wife and sister, but none of them were ever called. However, Jason also said that he was able to pass on to Hauschild the basic information that Sherry told him her ex-husband attempted to molest her son I.S. and broke his arm; she had an incestuous relationship with an uncle and two of her children were his; she seduced a young underage relative (Josh); S.S. molested a child at daycare by sucking his penis; and T.S. threatened to lie in order to get her way at the birthday party. Jason also gave Hauschild “contact information” for others who could corroborate the information he provided.
On cross-examination, Jason testified that he spoke briefly with Hauschild three times on the phone prior to the jurisdictional hearing and twice in the courthouse on the day it took place. During one of his phone conversations Jason asked Hauschild “what his background was, what kind of a lawyer he was, like, as far as what kind of cases he usually takes” and because “he didn’t like some of the questions I was asking him, . . . he hung up.” “[W]hat happened was he started to get, you know, like with an attitude towards me for asking him how long he’s been a lawyer or how long has he been practicing. And he—he hung up on me.”
Later, when Hauschild returned a call from appellant’s grandmother, she asked him to speak with Jason, he agreed, and she put Jason on the phone. It was during that call—which lasted 15 or 20 minutes, and took place a week after appellant was arrested—that Jason provided some of the information earlier described. Hauschild said he was unable to speak longer with Jason because he was so busy with his other cases. Jason later provided Hauschild additional information during two short phone conversations. According to Jason, Hauschild didn’t follow up on the contacts he had given him, which was apparently the reason Jason tried to talk to Hauschild in the court house on the day of the hearing. Jason asked Hauschild “ ‘How come there’s no witnesses here‌’ ‘How come you didn’t contact nobody‌’ ” Hauschild said “ ‘You questioning me‌’ And just got irate in front of everybody.”
At the end of cross-examination Jason acknowledged he had known appellant all of his life and also that he had spent time in prison for assault with a deadly weapon and kidnapping, and the victims of both were other Native Americans but not members of his family. Jason, who worked as a crane operator, had been out of prison for six years.
The arguments of counsel on the motion for a new jurisdictional hearing were separately heard by Judge Wilson on May 10, 2007. Carter argued that Hauschild’s declaration and Jason’s testimony indicated that, despite the information and contacts he was provided by Jason, which he did not follow up, Hauschild’s defense of appellant consisted of little more than his conversations with appellant and the filing of the petitions asking the court to inspect juvenile court records pursuant to Welfare and Institutions Code section 827. Carter also emphasized Hauschild’s complete failure to respond appropriately to Sherry’s emotional testimony that she was one of only two people in her extended family of about three generations “that I know that wasn’t molested as a child,” presumably because this provided an opportunity for Hauschild to explore the level of child molestation within the family and the victim’s familiarity with forms of child molestation. Carter also called attention to Hauschild’s failure to voir dire T.S. with respect to competency, at which time he could have asked whether she ever lied or threatened to lie in order to get her way, and to subject her to meaningful cross-examination regarding, for example, asserted discrepancies between her direct testimony and her statements to the arresting officer. Citing In re Marquez (1992) 1 Cal.4th 584, 608-609 [3 Cal.Rptr.2d 727, 822 P.2d 435], Carter claimed Hauschild’s ineffectiveness was also shown by his failure to put before the court many positive aspects of appellant’s life, and the support of him by other members of his family, such as Jason, and the fact that he had never before been charged with any sexual impropriety.
Finally, Carter called attention to the statement in Hauschild’s declaration that, despite the fact that “I clearly required more time than a seven day continuance to fully investigate and competently defend the case,” he sought a continuance for only seven days because he understood that under Welfare and Institutions Code section 682 “I was only entitled to a seven day continuance for a juvenile delinquency case.” Carter suggested that Hauschild’s understanding of the law was erroneous.
The district attorney maintained that appellant had not shown Hauschild’s conduct fell below an objective standard of reasonableness. Conceding that there were things Hauschild could have done differently, the prosecutor pointed out that Hauschild met with and spoke with family members, including Jason, and “made the reasonable conclusion that the information was irrelevant, that it would not be fruitful in supplying him with a viable defense to the allegations.” According to the prosecutor, “it was probably a strategical decision to not delve into the prior family history of molest. I think that’s something that, arguably, could prejudice his client just as well as serve him in formation of a defense. I think it’s reasonable that a trier of fact, perhaps not properly, may—but may, nonetheless, conclude that a young man who is in a family that has multiple incidences of molest may be more likely to himself have committed a molest. I think that was properly a door that, frankly, Mr. Hauschild properly chose not to open and at least not explore any futher.”
The district attorney felt it was reasonable for Hauschild to point out the language T.S. used was sophisticated for a child her age; to emphasize how deeply asleep appellant was when he was found by Officer Dygert shortly after the offense was alleged to have occurred, and to also underscore that though appellant had in the past run away from Sherry’s house when he got in trouble, he remained there this time. According to the district attorney, Hauschild “fairly successfully portrayed [appellant] as a nice young man that was on the right path for once and doing fairly well and not someone that would have risked this over engaging in the sort of conduct that was alleged. [¶] He clearly had a well-planned and orchestrated defense, and he presented it clearly and concisely to the Court.”
Finally, the prosecutor argued that even if Hauschild’s conduct was not considered objectively reasonable, there would not have been a different outcome even if he had taken all of the courses of action outlined by his present counsel, because “[i]t seems clear from the trial judge’s ruling . . . that he based his determination upon the believability of the nine-year-old victim. And I think . . . we would have seen the exact same outcome.”
In rebuttal, Carter emphasized a criminal defense attorney’s duty to investigate. “I think it’s important that these leads be investigated. I don’t think it was a wild goose chase. I really don’t think it was a wild goose chase. But that isn’t our decision to make. I think we have a duty to investigate and that is where Mr. Hauschild failed [a]nd that is what prejudiced [appellant] as he sits here today.”
Judge Wilson took the motion for a new jurisdictional hearing under submission and at a hearing four days later issued his ruling denying the motion. Acknowledging that Hauschild made “errors” and that there were questions about the credibility of the complaining witness and her mother, Judge Wilson also noted that Jason, the sole witness at the hearing on the motion, was a convicted felon, and that much of his testimony was hearsay. Judge Wilson felt Judge LaCasse relied primarily on T.S.’s testimony and placed little weight on that of Sherry S. and Officer Dygert. In Judge Wilson’s view, however, Sherry’s testimony deserved some weight because Jason corroborated her testimony that she called other members of the family before she called the police. Finally, Judge Wilson stated his satisfaction that Judge LaCasse’s jurisdictional determination was supported by sufficient evidence. Judge Wilson then set a date for a contested dispositional hearing.

TO BE CONTINUED AS PART II….

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