State v. Cedric Tung, 2023 WI App 33

Defendant Cedric Tung, then 19, was charged with first-degree child sexual assault for allegedly touching a 7-year-old girl’s genital area while she was on a couch in June 2017.
Tung made incriminating statements in a custodial police interview and in text messages to the child’s father; those admissions were played / introduced at trial.
Trial counsel told the jury she would not contest that touching occurred but argued the touching was accidental and lacked the requisite sexual intent.
Tung testified at trial maintaining he never touched the child and later conceded on cross-examination that he lied to police.
A jury convicted Tung; he was sentenced to 15 years (7 years initial confinement, 8 years extended supervision).
On postconviction review and appeal Tung argued counsel violated his McCoy right to have innocence as the defense objective and, alternatively, that counsel’s conduct breached the adversarial process under Cronic; the trial and postconviction courts found counsel credible and denied relief.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Tung)	Held
Whether counsel’s trial strategy impermissibly conceded guilt in violation of the defendant’s autonomy under McCoy v. Louisiana	Counsel did not concede Tung’s ultimate guilt; she challenged intent and legitimately framed touching as accidental based on client admissions and evidence	Counsel overrode Tung’s express wish to pursue an absolute innocence defense by conceding the touching and arguing only lack of intent	Court held no McCoy violation: counsel did not concede guilt and Tung failed to show he expressly demanded an innocence-only objective
Whether counsel’s conduct amounted to abandonment of zealous advocacy and a breakdown of the adversarial process under United States v. Cronic	The prosecution’s case was robustly tested; counsel reasonably focused on intent given admissions and ethical limits on presenting potentially false testimony	Counsel abandoned advocacy by treating guilt as a foregone conclusion and undermining Tung’s testimony, so adversarial testing failed	Court held no Cronic violation: counsel did not entirely fail to subject the prosecution’s case to meaningful adversarial testing and did not abandon the defense

McCoy v. Louisiana, 138 S. Ct. 1500 (2018) (defendant has personal right to insist on asserting innocence as the objective of defense)
United States v. Cronic, 466 U.S. 648 (1984) (counsel’s complete failure to subject prosecution to adversarial testing can be structural error)
State v. Chambers, 395 Wis. 2d 770 (2021) (Wisconsin application of McCoy requiring an affirmative, express instruction to counsel to assert innocence)
State v. McDowell, 272 Wis. 2d 488 (2004) (procedures when defense counsel knows a client will testify falsely and the use of narrative questioning)
Nix v. Whiteside, 475 U.S. 157 (1986) (counsel must not assist client in presenting false testimony)
Miranda v. Arizona, 384 U.S. 436 (1966) (custodial Miranda warnings governing statements to police)
Strickland v. Washington, 466 U.S. 668 (1984) (benchmark ineffective-assistance analysis; noted but not applied to McCoy claims)