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Federal court orders new trial or release of former Kenosha man in child sex case
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Federal court orders new trial or release of former Kenosha man in child sex case

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MADISON — In a case where an attorney should have listened to her client, an appeals court ordered the state to release a former Kenosha man from prison or grant him a new appeal after concluding the attorney didn’t pursue the best grounds for appeal.

Antonio G. Ramirez Jr., 45, was sentenced to 50 years in prison after being convicted in 2001 of first-degree sexual assault of a child, and several related child-sex offenses occurring in 1998-99.

According to an opinion of the U.S. Seventh Circuit Court of Appeals issued Tuesday:

The child was about eight years old at the time of the trial, and was subpoenaed through her mother but didn’t testify nor did her 5-year-old brother. Instead, Circuit Judge Wilbur Warren allowed jurors to hear their statements through police officers and medical professionals.

Before trial, the children’s mother sent Warren a letter recanting her statement accusing Ramirez of the assaults. Ramirez’s trial attorney told Warren that Mrs. Ramirez had “instructed (the girl) what to say because of her rage at her husband.” Ramirez’s attorney unsuccessfully argued that the conflicting statements gave her the right to confront or cross examine the witnesses.

Mrs. Ramirez testified at trial recanting the incriminating statement she gave to police about her husband. That apparently didn’t convince jurors who found Ramirez guilty on multiple counts relating to the assaults.

During the year following Ramirez’s conviction, the U.S. Supreme changed part of the basis for confronting witness at trial. Ramirez wrote his appellate attorney, Lynn Hackbarth, asking him to raise the confrontation issue, she didn’t.

Hackbarth raised seven other issues on appeal, which were rejected, and in 2007, the Wisconsin Supreme Court declined to hear the case.

Acting as his own attorney, Ramirez appealed claiming that Hackbarth provided “ineffective assistance of counsel” for failing to raise his right to confront witnesses claim. However, two levels of state court ruled that the new right to confront couldn’t be applied retroactively to his case, also admitting the statements through police or medical professionals was harmless as other evidence of his guilt was “overwhelming.”

With his state court remedies exhausted, Ramirez filed against the state in federal court in Madison. While the state sought extensions for nearly 2½ years, Ramirez finally requested an appointed attorney in August 2016.

In 2018, District Judge James Peterson ruled for Ramirez finding that the state appeals court’s rejection of Ramirez’s appeal was based on an unreasonable interpretation of case law. Also, changes in Ramirez’s right to confront witnesses applied to his case because his conviction was not final when those changes were issued.

Peterson ordered the state to release Ramirez from custody or grant him a new appeal within 90 days.

The state appealed that ruling to the Chicago-based appeals court.

In finding for Ramirez, the court said the Wisconsin court “appears to have ‘inadvertently overlooked’ the ineffective assistance claim.”

Even the state acknowledged Ramirez’s confrontation claim was obvious, and that all of the claims Hackbarth raised were weak.

If the statements Ramirez wanted to confront were excluded as inadmissible, the evidence against him is not overwhelming, according to the federal appeals court.

“We conclude that Mr. Ramirez ‘had a reasonable chance of success on appeal but for [Attorney Hackbarth’s] deficient performance.’ We need not decide whether Mr. Ramirez would have prevailed; rather, what we decide here is that the confrontation claim had a better than fighting chance at the time,” according to the 26-page opinion.

Messages sent to the Wisconsin Attorney General’s office for comment on the decision were not returned by deadline.

Kite also did not return a request for comment.

Ramirez is an inmate at Jackson Correctional Institution.

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Here are the crime stories published online and in the print product of the Kenosha News between June 24 and June 30, 2020.

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