June 28, 2021 at 11:53 a.m.
Former school custodian seeks new trial in sexual assault case
Former school custodian seeks new trial in sexual assault case
Iliopoulos, 68, is serving a 14-year prison sentence, to be followed by 16 years extended supervision, after being convicted of child enticement, false imprisonment and first-degree child sexual assault.
An Oneida County jury deliberated for less than 90 minutes in September 2019 before rendering guilty verdicts on all three counts.
Iliopoulos was charged after a fifth-grade student at Northwoods Community Elementary School reported that he had intercepted her as she was leaving a school restroom in September 2018, forced her into a janitor's closet and touched her upper chest and stomach area.
In his request for post-conviction discovery, Olson focused on trial counsel's decision not to request all of the DNA analysis material to which the defense was entitled as well as his failure to object to the state's "untimely filing" of its notice of intent to submit DNA evidence.
According to Olson's recitation of the case history, a summary report on the DNA evidence was prepared and received by the prosecutor's office in April, but the state did not file the required notice until August, just weeks before the trial began on Sept. 5, 2019.
In addition, trial counsel did not request all of the material related to the lab's analysis of the swabs taken of the child's upper chest and stomach.
"Trial counsel's failure to request disclosure meant the material was not turned over to trial counsel, is not in his file, and was not reviewed or used by trial counsel in his preparation for trial," Olson contends. "Instead, the state provided only what it was required to provide under (state statutes): a copy of the crime lab's summary report of its analysis, which lists the evidence it tested and analyzed and state's the analyst's conclusions."
"The material detailing and describing what the crime lab did in analyzing the evidence submitted in this case is critical, relevant, and material to assessing the accuracy and significance of the DNA evidence and thus is necessary to a fair determination of Iliopoulos's guilt or innocence," he continued. "Though it was not the only evidence the state presented at trial, the DNA evidence was nonetheless powerful and significant and therefore crucial to the state's case, for if it is accurate it corroborates (the child's) statements in the forensic interview that Iliopoulos kissed her just below the neck, as the state argued in closing and the court commented at sentencing. Further, it is clear the jury carefully considered the evidence, for its second question to the court during deliberations asked to see the diagram from the SANE (sexual assault nurse examiner's) report showing where the evidence was swabbed from (the child's) body. Thus, the DNA evidence was certainly relevant to an issue of consequence."
"Disclosure of the material to the defense now for review by the forensic DNA analyst the defense has retained is necessary to determine whether trial counsel's failure to obtain the material prejudiced Iliopoulos's defense," Olson wrote. "Ordering postconviction discovery for this purpose is also necessary to assure Iliopoulos's due process right to discovery of information that may lead to a fair determination of guilt or innocence. In light of the apparent paucity of DNA compared to the course of conduct described by (the child) and Iliopoulos's denials of (the child's) core allegations of contact, an adequate defense in this case required a full and careful assessment of the accuracy and evidentiary significance of the apparently powerful DNA evidence, not just a concession it was correct. Doing that requires an independent, detailed analysis of the material documenting the crime lab's work."
Olson also argues that Iliopoulos's trial counsel was ineffective because he chose not to cross examine the child and failed to present evidence that Iliopoulos had denied the child's claims.
To establish ineffective assistance of counsel, a defendant must show that his lawyer's performance was deficient and that the "deficient performance prejudiced the defense."
As for trial counsel's failure to question the complaining witness, Olson notes the defense attorney was caught by surprise when the school district's computer network administrator Daniel Wolter, the witness who testified to lay the foundation for videos of the school hallway and who operated the equipment on which the videos were played, did not show up for the second day of trial.
"To begin with, as he told the court he had anticipated using the video in his examination, though not until after seeing them played the first day of trial, that means he could have arranged sometime after Wolter testified on the first day to have available to play the video, during his examination of (the child). That he was 'a bit surprised' Wolter was not there on the second day evinces a simple failure to anticipate that to the extent he needed Wolter's presence, it would be his responsibility to assure Wolter was there," Olson contends. "A lawyer who fails to anticipate and arrange for a necessary witness is not acting with the deliberateness, caution, circumspection and reasonableness required of counsel. In addition, it was objectively unreasonable for trial counsel to decide to abandon cross examination simply because he could not use the video exhibits. As trial counsel told the court, he decided he needed Wolter only the day before. That implies he had prepared a cross examination of (the child) without using the video exhibits. And indeed, on information and belief, based on trial counsel's file, he had prepared questions for her. While his prepared cross examination refers to certain events and time stamps on the video evidence that he anticipated would be introduced, other topics he covered do not depend on or even refer to the video evidence. Further, as the court pointed out, the videos were in evidence, so their content could be referred to even if they could not be played contemporaneously with the questioning. Because the absence of Wolter did not impede most or even all of trial counsel's anticipated cross examination, there was no need to abandon cross examination entirely because some of the video evidence could not be played. Thus, trial counsel's decision to ask no questions, not even those unrelated to what the videos might show, was unreasonable because it was not rationally based on his own prepared examination or the relevant facts that could be covered in cross examination. Instead of being a decision arising from the kind of deliberateness, caution, and circumspection required of counsel, it was a hasty, ill-considered reaction to a development that surprised trial counsel but should have been anticipated and that, in any event, could have been handled instead by proceeding with the examination he planned before trial commenced."
Olson also faulted trial counsel for failing to explain Iliopoulos's recitation of events to the jury, namely his contention that the child entered the closet on her own and he pushed her out the door, and advising him against testifying on his own behalf.
"Iliopoulos told detectives he did not do what (the child) alleged he did," Olson wrote. "He told them he did not push or pull her into the closet; he did not hug or kiss her; he did not restrain her; and he touched her only when he pushed her out of the closet. The jury did not hear his consistent denials of (the child's) core allegations."
(Iliopoulos claimed the closet door was propped open and automatically closed when the child walked inside. He told investigators he did not touch her except to push her out of the room, told her to "get the hell out" and not tell anyone she had been there.)
Instead of that statement, Olson contends, "the jury heard only that he admitted (the child) was in the closet and that he told her not to tell anyone she had been there."
"Trial counsel failed to present evidence of Iliopoulos's denials despite two clear opportunities to do so," Olson wrote. "This constitutes deficient performance that prejudiced Iliopoulos's defense."
The state has yet to respond to the motion, however a status conference in the case is scheduled for July 12.
Heather Schaefer may be reached at [email protected].
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