"In brief" posts are shorter looks at interesting appellate filings. There are simply too many worthy cases to cover in full and these posts let me cover a few more. They lift a lot from the briefs themselves (expressing gratitude to lawyers who are decent writers). Those lifted parts are indented. My additions / summaries are not.
Please remember — these are generally taken from briefs and present the arguments of the parties appealing. They do not necessarily present the full story. I'll try to post excerpts from the responses as they are filed. That can be months after filing of the the appellate brief.
Mario Victoria Vasquez v State of Wisconsin Claims Board
Appeal: 23AP1764
Filing attorney: Christopher Lau, assisted by Judith Cusack and Kasim Rana
Judge: Brown County Circuit Judge Timothy Hinkfuss
The state Claims Board erred when it refused to allow a wrongfully convicted man to present evidence at a compensation hearing while allowing the state to "offer unsworn, uncorroborated assertions" to show possible guilt, according to a pending appeal.
Mario Vasquez, in a case built entirely on circumstantial evidence, was convicted in 1998 of sexually assaulting a four-year-old girl, G.T., and spent 16 years in prison. The conviction was vacated in 2015 with the state's agreement. Prosecutors did not retry the case, Wisconsin Innocence Project attorney Christopher Lau wrote in a brief.
Lau was assisted by law students Judith Cusack and Kasim Rana.
Vasquez sought compensation from the state Claims Board, which considers monetary compensation requests from "innocent convicts," as the Board refers to the wrongly convicted.
The Board erroneously concluded “… that the evidence is not clear and convincing that Vasquez was innocent of the crime for which he was imprisoned.” By so concluding, the Board has turned innocence on its head.
The Board made three errors, Lau wrote. It violated Vasquez's due process rights by preventing him from offering evidence while allowing the state to offer unsworn, uncorroborated testimony; it required him to exceed the burden of proof required by law, despite G.T.'s trial testimony that Vasquez was not her abuser; and it relied on evidence not supported by sworn testimony.
Brown County Circuit Judge Timothy Hinkfuss upheld the Claims Board ruling.
In 1998, Vasquez rented a room at the home of G.T.'s babysitter. G.T., meanwhile, lived with her parents, her siblings, and her uncle, also named Mario, Lau wrote. In February, G.T. was taken to the hospital after complaining of pain while urinating. Tests confirmed she had herpes.
G.T. made a wide range of statements including that “Mario” touched her with his fingers and penis, and that her uncle (whom she also referred to as “Mario”) and her father both had inappropriately touched her. ... Her mother took her to the police station where G.T., unprompted, stated “My uncle did not touch me.” When asked about her contradicting statements, G.T. said “I don’t remember. . .It’s just Mario.”
During a videotaped interview with a social worker, G.T. showed she could not distinguish between "the truth and a lie," Lau wrote.
Despite not being able to establish G.T.’s veracity, the social worker continued questioning her.
G.T. implicated "Mario" in the assaults. However, Lau wrote, "Critically, the social worker never asked who Mario was in relation to G.T.
G.T.'s family spoke only Spanish, and a Spanish-speaker interpreted.
Unlike best practices today, the translator had little knowledge of English and limited (if any) training in sensitive forensic interviews. This led to errors in both the translation to Spanish and back to English. ... In one instance, the interpreter claimed G.T. said “Mario touched me,” when, critically, the correct interpretation of G.T.’s answer would have been, “my uncle touched me.” Later, G.T. described her uncle touching her after bathing, but instead of saying uncle, the interpreter translated “he.” The interpreter also reworded and repeated questions until there was a satisfactory answer from G.T., rather than directly interpreting what had been said.
Uncle Mario, meanwhile, denied to police that he had herpes but admitted to having sores while he was in Mexico.
In addition, G.T.
also told her mother the previous summer that “Uncle Mario” had inappropriately touched her. Her mother refused to reach out to the police in response to that report. G.T.’s mother told the babysitter about this allegation, and the babysitter subsequently received a threatening phone call from G.T.’s father. Notably, G.T. also accused her father of abusing her; an allegation that G.T.’s mother took so seriously that she changed her work schedule to avoid leaving the father alone with G.T. or her siblings.
Police, though, were focused on Vasquez as the likely offender "at the expense of any other suspects," Lau said. When they showed G.T. a photo array, she picked identified Vasquez as "Mario," Lau said. He was the only Mario in the array.
" 'Uncle Mario' was never included in any photos shown to G.T.,' " Lau wrote.
At trial, G.T. testified that her abuser was not in the courtroom, though Vasquez was clearly visible, Lau said. Vasquez's counsel failed to present Uncle Mario as an alternate suspect and failed, despite promising to do so, to call a psychological expert to discuss the potential unreliability of G.T.'s statements and testimony.
Instead, the jury heard G.T.’s weak identifications of Mr. Vasquez as a “Mario,” as well as unproven accusations that Mr. Vasquez might have had herpes, even though he tested negative in a swab test. When called as a state witness, “Uncle Mario” denied under oath that he had herpes, and defense counsel failed to question him further or prove that this was a lie.
Vasquez was convicted and sentenced to 20 years in prison.
A few months after Vasquez's conviction, a woman told police that Uncle Mario gave her herpes during a "sexually abusive encounter." That information was not turned over to Vasquez or his lawyer until the Innocence Project took over the case.
In 2002, Mr. Vasquez wrote to the police to request records for an appeal. Upon receipt of that request, the police spoke to G.T. again. In that conversation, she picked Mr. Vasquez out of a photo array. She also again told police that “Uncle Mario” had inappropriately touched her and had been kicked out of the house for doing so.
In 2014, Vasquez, by now represented by the Innocence Project, hired an expert to give an opinion on G.T.'s accusation about Vasquez. The expert, David Thompson, a clinical and forensic psychologist, found her statement to be unreliable.
Vasquez filed a postconviction motion seeking his release. The state offered him release in exchange for a plea, but Vasquez refused.
On January 29, 2015, the day before the motion hearing, the state interviewed G.T. She revealed that she had testified falsely that her uncle had not molested her. She admitted that her uncle had sexually molested her in 1998 and that her father had sexually molested her throughout her childhood. She also said they both had herpes.
The state conceded that Vasquez deserved a new trial and the judge vacated the conviction. The DA's office did not retry the case.
Vasquez sought compensation from the Claims Board in 2022 for the 16 years he spent in prison. The Board told Vasquez to
“not bring new information or documentation to the Claims Board meeting. Board members will not have time to consider new information.” In contrast, the Board invited the District Attorney to “present sworn testimony and whatever other evidence is essential to permit the Board to decide the merits of the claim.” At the hearing, as per the Board’s directive, Mr. Vasquez briefly summarized his claim, as did the District Attorney. The Board asked just one question.
The Board denied compensation, Lau said.
The Board summarized the facts and arguments of both parties and issued a four-sentence decision denying Mr. Vasquez’s claim for compensation, finding that he did not “present affirmative evidence of his innocence.” The Board gave particular weight to the Government’s unsubstantiated claim about the victim’s continued insistence that Mr. Vasquez was her abuser and concluded that the evidence was not clear and convincing that he was innocent.
The Board's decision should be overturned on due process and statutory grounds, Lau argued. His rights were violated by the Board when it did not allow him to present evidence, but invited the DA's office to do so. The Board also failed to provide Vasquez with an impartial forum, he said.
Prior to the hearing, the Board communicated that the District Attorney was “in the best position to recommend the correct resolution of this claim.” In essence, the Board privileged the District Attorney’s position over Mr. Vasquez’s in the compensation process.
The Board also improperly required Vasquez to meet a higher burden of proof than the law requires, Lau said. It required him to prove his innocence beyond a reasonable doubt, but the law requires only "clear and convincing evidence."
Vasquez met that burden, he wrote. He presented evidence of his own innocence and evidence that Uncle Mario was more likely the offender.
Although the DA's office said in a letter that G.T. maintained that Vasquez assaulted her, the state did not present evidence to support that, Lau said.
The District Attorney did not elicit testimony from the victim at the Board hearing, despite being invited to present testimony. The District Attorney did not submit any affidavits from the victim in its letter to the Board despite being invited to submit exhibits and attachments. Nor did the District Attorney cite any prior record to substantiate its claim, because no such record exists: no statement was introduced at the Board hearing, in the briefing, or even at the hearing for Mr. Vasquez’s new trial.
The full appellate brief is here.
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