| At 4 p.m. on April 8, 1995, 49-year-old Samuel Hogan, his friend. David Clarke, and Clarke's girlfriend, Lulu B., went to a tavern in Milwaukee, Wisconsin, to celebrate Lulu's birthday. They drank heavily, and a t 5:30 p.m., the three went to Lulu's apartment, where they smoked cocaine and marijuana. The trio returned to the bar, drank more alcohol, and, after midnight, returned to the apartment for additional drug use. Clarke and Lulu had sexual intercourse at 3:00 a.m.
Later that morning, Lulu claimed she awoke to find Hogan having sexual intercourse with her. She told police that she threw him out of the apartment and when she told Clarke what happened, Clarke did not believe her.
Police were called and Hogan was arrested on a charge of second-degree sexual assault.
In November 1995, Hogan went to trial in Milwaukee County Circuit Court. Clarke testified that after he had sex with Lulu, he went to sleep in another bedroom and woke up when he heard Lulu yelling.
Lulu testified that she awoke to find Hogan having sex with her.
Hogan testified that he did have sexual intercourse with Lulu, but that it was consensual. He stated that Lulu had agreed to exchange sexual intercourse for drugs. He said that Lulu threw him out because he refused to obtain additional drugs for her.
On November 21, 1995, the jury convicted Hogan of second-degree sexual assault. He was sentenced to six years in prison.
Hogan filed a postconviction motion claiming that his trial defense lawyer had failed to contact a witness, Gilberto Rodriguez, whose testimony would have assisted the defense. Hogan claimed that he had given his lawyer Rodriguez’s name prior to the trial.
At a hearing on the motion, Rodriguez testified that he had known Lulu, Clarke, and Hogan for several years having worked with all of them over the years at Chempak in Milwaukee. He testified that sometime after the alleged rape, he had several conversations with Clarke about the events of that night.
Rodriguez said that on several occasions, Clarke had told him that Lulu agreed to have sex that night with Hogan in exchange for drugs, that Lulu became upset at Hogan because he refused to get more drugs after they had sex, and that she then decided to claim that Hogan raped her. Rodriguez testified that no attorney or investigator contacted him on behalf of Hogan prior to trial regarding this information.
Hogan’s trial defense lawyer testified that he had not used an investigator in the case, but had asked Hogan to supply him with a list of witnesses who could be helpful to the defense. Hogan had done so, and the list of names included Rodriguez. The lawyer testified "to the best of my recollection I did contact [Rodriguez]. I don't have any notes to substantiate that fact." The lawyer asserted that to the best of his memory, he had located Rodriguez and determined that he had nothing of value to add to the defense case.
Hogan testified that he, rather than his lawyer, had produced the defense witnesses. He said he could not find Rodriguez because he did not know where he lived.
The trial court denied Hogan's postconviction motion. The judge ruled that the defense lawyer must have contacted Rodriguez because it was "inconceivable" that a lawyer would not have done so in a serious felony case.
On October 28, 1997, the Court of Appeals of Wisconsin vacated Hogan’s conviction and ordered a new trial. The appeals court said that the trial court’s finding was “clearly erroneous because it was not based on the evidence.”
“The key factual question is whether defense counsel ever contacted Rodriguez,” the appeals court said. “A review of the records indicates strongly that he did not. First, the list of potential witnesses Hogan gave to defense counsel contained Rodriguez's name along with a telephone number where Rodriguez could be reached, although defense counsel could not recall where he contacted Rodriguez. Defense counsel wrote the words "still available" next to two other names on the potential witness list but no such notation appeared next to Rodriguez's name, indicating that Rodriguez had not been contacted to find out if he was "still available" to testify.”
The court said, “Additionally, defense counsel's file contained no notes concerning any contact with Rodriguez. Further, as the trial court determined, defense counsel did not subpoena the witnesses who appeared at trial for the defense; Hogan himself contacted the witnesses. Also, Rodriguez testified that he was never contacted by defense counsel. Finally, defense counsel himself was not even sure that he ever contacted Rodriguez.”
“[W]e conclude that defense counsel's performance was deficient,” the appeals court declared. “Furthermore, this is not a case where the evidence of Hogan's guilt was overwhelming. The nurse who examined Lulu the day after the alleged rape found no evidence of physical injury. None of the hairs recovered from Lulu's body were Hogan's. The State's case turned on the credibility of Lulu and Clarke.”
On February 8, 1998, the prosecution dismissed the case and Hogan was released.
– Stefanie Denzel and Maurice Possley
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