State v. Anthony R. Pico, 914 N.W.2d 95

Background

Defendant Anthony R. Pico was convicted by a jury of first-degree sexual assault of an eight-year-old student based largely on an inculpatory police interview and a forensic interview of the child.
During the interview Detective Rich used the Reid technique (including false statements about cameras, DNA, and corroboration); Pico gave equivocal statements and identified the child, then said any touching was inadvertent.
Pico wore an eyepatch from a 20‑year-old motorcycle accident causing frontal‑lobe injury and double vision; he contended trial counsel should have investigated that injury and obtained medical records or experts to pursue an NGI defense or a suppression motion (arguing susceptibility to Reid technique).
After conviction Pico sought collateral relief (a Machner hearing) alleging multiple instances of ineffective assistance of counsel; the circuit court granted relief, vacating the conviction and sentence after receiving Strickland‑style expert testimony that criticized counsel’s performance.
The court of appeals reversed, holding counsel was not constitutionally ineffective; the Wisconsin Supreme Court granted review and affirmed the court of appeals.

Issues

Issue	Pico's Argument	State's Argument	Held
Whether court of appeals improperly substituted factual findings for circuit court in evaluating Strickland claim	Court of appeals failed to defer to circuit court factual findings and substituted its own	Court of appeals properly distinguished facts (deferential) from legal conclusions (de novo) and applied Strickland correctly	Court of appeals acted properly; many contested points were legal conclusions subject to de novo review, not factual findings
Whether trial counsel was constitutionally ineffective for not investigating Pico's brain injury / not pursuing NGI or suppression	Counsel knew of eyepatch and interview behavior and should have obtained records/experts; failure was deficient and prejudicial	Pre‑trial facts did not reasonably indicate need for further investigation; counsel’s choice was reasonable under professional norms	Counsel’s decision not to further investigate was reasonable; performance not deficient under Strickland
Whether expert testimony opining on the reasonableness of counsel’s performance is admissible at a Machner hearing	Such expert testimony is helpful and should be allowed to show prevailing professional norms and whether counsel was deficient	Opinion on legal question (reasonableness/deficiency) is for the court, so expert opinions on that ultimate question are inadmissible	Expert testimony may address factual matters (e.g., alternative actions or specialized factual subjects) but may not opine on the ultimate legal question whether counsel’s performance was reasonable/deficient
Whether sentencing court impermissibly enhanced sentence because Pico maintained innocence / lacked remorse	Court punished Pico for asserting innocence (right against self‑incrimination) by relying on lack of remorse to increase sentence	Court considered remorse as one factor among many; no evidence it gave undue weight or relied solely on lack of remorse	No reversible error; sentencing court considered multiple permissible factors and did not improperly base sentence on assertion of innocence

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishing two‑prong ineffective assistance standard: deficiency and prejudice)
Harrington v. Richter, 562 U.S. 86 (deference principle: performance judged against wide range of reasonable assistance)
State v. Pitsch, 124 Wis. 2d 628 (questions whether counsel's actions were deficient and prejudicial are legal questions reviewed de novo)
State v. LaCount, 310 Wis. 2d 85 (admissibility of expert testimony rests in circuit court's discretion)
State v. Gallion, 270 Wis. 2d 535 (sentencing: required factors and exercise of discretion)
State v. Scales, 64 Wis. 2d 485 (limitations on using lack of remorse at sentencing; coercive reliance on remorse alone reversible)
State v. Baldwin, 101 Wis. 2d 441 (lack of remorse may be considered as one factor among many at sentencing)