State Supreme Court extends deadline for briefs concerning conviction of Colfax man
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By LeAnn R. Ralph
MADISON — The state Supreme Court has extended the deadline to January 13 for briefs to be filed concerning the conviction of a Colfax man sentenced to 25 years in prison for child sexual assault.
A three-judge panel in the District 3 Court of Appeals released a 30-page decision dated May 21, 2024, reversing the conviction of 50-year-old Jobert L. Molde and remanded the case back to Dunn County Circuit Court for further proceedings
Judge Rod W. Smeltzer presided over the jury trial in Dunn County and then subsequently sentenced Molde, who was 45 years old at the time, to serve a 25-year prison sentence on two felony counts related to the sexual assault of a child under 12 years of age.
Judge Smeltzer retired during the summer of 2021. Christina Mayer was elected as the Branch II judge in Dunn County Circuit Court in the April of 2021 election to replace Judge Smeltzer after facing challenger Nicholas P. Lange.
After the District 3 Court of Appeals overturned the Molde conviction, the state attorney general’s office filed a petition June 19, 2024, asking the Supreme Court to review the case.
Nelson Defense Group filed a response July 1, 2024, stating that the Supreme Court should not review the case, which would leave the Court of Appeals ruling intact to overturn the conviction and allow for a new trial.
The Supreme Court granted the petition for review November 12, 2024.
A Dunn County jury found Molde guilty on two felony counts related to the first-degree sexual assault of a child under the age of 12 following a two-day trial in March of 2019.
According to the criminal complaint, the victim told investigators that Molde had sexual intercourse with her. The victim would have been younger than 10 years old at the time, and investigators believe the alleged assault would have happened in 2011 or 2012 in the Village of Colfax.
Near certainty
At issue is whether an expert witness stating that 99 percent of all sexual assault reports are true would have caused the Dunn County jury to conclude that the alleged victim in the Molde case was telling the truth.
Judge Smeltzer had allowed jurors to submit written questions to the court during witness testimony and then determined whether the questions would be allowed to be asked.
One question from the jury that Judge Smeltzer allowed was, “How frequent is it for children to make up a story of sexual abuse?”
The expert witness replied, “False disclosures are extraordinarily rare, like in the one percent of all disclosures are false disclosures.”
Molde’s attorney, Jesse Gwynn Weber, did not object to the question or to the expert witness’s answer.
The failure to object left the jury with the impression that 99 percent of all reported child sexual assaults are true accounts, according to the District 3 Court of Appeals decision.
“We agree with Molde that his counsel performed deficiently by failing to object to this testimony. At the time of Molde’s jury trial, the law on impermissible vouching testimony was well settled, and Molde’s trial counsel should have known to object to the expert’s testimony for two reasons,” the court of appeals decision states.
The decision goes on to say, “First, the expert was directly involved in the victim’s examination following her sexual assault accusation against Molde, and the expert’s answer to the juror’s question regarding a child’s propensity to tell the truth when reporting sexual assault
would inevitably be seen by a jury as as ‘a personal or particularized’ endorsement of [the victim’s] credibility.”
In addition, “The expert’s testimony — which effectively stated to the jury that 99 percent of all sexual assault reports are true — ‘provided a mathematical statement approaching certainty’ that false reporting simply does not occur.”
Review necessary
According to the state attorney general’s 28-page petition for the Supreme Court to review the Molde case, “Review is necessary to provide guidance to Wisconsin courts regarding the use in sexual assault prosecutions of statistical evidence of the prevalence of false reports of abuse
and to decide whether such evidence may violate the Haseltine rule.”
The Haseltine rule is that “no witness, expert or otherwise, should be permitted to give an opinion that another mentally and physically competent witness is telling the truth,” according to the Justia U.S. Law website.
“Statistical testimony about the prevalence of false reports is relevant and may be particularly useful in disabusing jurors of widely held misconceptions that a great many, if not most, allegations of sexual assault are untrue,” according to the petition for review by the Supreme Court.
New trial request
In November of 2020 and February of 2021, an attorney representing Molde filed motions in Dunn County Circuit Court asking for a new trial because of ineffectiveness of his defense attorney at trial.
Molde alleged that at trial, Weber was ineffective as his defense attorney for not objecting to the juror’s question about how often alleged sexual assault victims make a false report, for not asking the judge to declare a mistrial when the expert said that only 1 percent of allegations are not true, for not asking the alleged victim’s family members about whether the alleged victim had a reputation for being dishonest, and for withdrawing a prior objection to the judge allowing “other acts” evidence regarding time Molde spent in jail after being convicted of operating a motor vehicle while intoxicated, according to the petition for review.
The circuit court judge issued a final written order denying the motions in October of 2021.
Other cases
The state attorney general’s petition to the Supreme Court for review focuses on two other cases, “Morales-Pedrosa” and “Mader,” which was tried the same year as the Molde case.
In Morales-Pedrosa, the court of appeals rejected the claims of ineffectiveness of defense counsel by saying that no Wisconsin case had established that such testimony is not allowed by Haseltine, so there was no case for the defense attorney to cite; that the expert witness had not met or examined the victim, so the jury could not have believed the witness was providing an opinion on the victim’s credibility; that the expert witness had not suggested the victim was like the 90 percent of children who say they are abused are telling the truth; and that 90 percent of children being truthful would have less impact on the jury than saying 99.5 percent of children are truthful, or 98 percent “or even 92-98 percent” are telling the truth, according to the petition for review.
Mader
In the Mader case, the court of appeals was wrong when it concluded that the testimony of an expert witness who had not met the victim was improperly vouching for the truthfulness of the victim, according to the petition for Supreme Court review.
One sheriff’s deputy in the Mader case had interviewed the victim multiple times and also testified that out of 150 reports he had investigated, “only one” was a false report.
The court of appeals had concluded that the deputy’s testimony was addressing the credibility of the victim he had interviewed under the Haseltine rule.
Another therapist had testified that she had treated more than 500 victims, although she had not treated the victim in the Mader case.
When asked about whether victims lie concerning being assaulted, the therapist said that out of the 500 victims she had treated, she “was sure” that four were making false reports.
The therapist’s testimony about the truthfulness of victims was treated the same as the deputy’s testimony as being a Haseltine violation, the petition states.
The court of appeals made a mistake in saying the testimony of both expert witnesses was vouching for the credibility of the victim because “statistics are statistics, and, unless they somehow put the incidence of false reports at ‘zero’ or ‘never’, they say little about whether this victim was telling the truth,” according to the petition for review.
Molde expert
The court of appeals “made the same errors in evaluating similar testimony” of an expert witness in the Molde case, the petition for review states, also noting that the testimony given was in response to a question asked by a juror and not a question asked by a prosecutor.
The expert witness did not link the testimony to the alleged victim in the Molde case, and the expert witness had not met or personally examined the alleged victim in the Molde case, according to the petition for review.
The court of appeals also made a mistake in stating that the Mader case was settled law when the Mader case had been tried in the same year as the Molde case and that “No Wisconsin case had established that statistical testimony [like the therapist’s] had violated Haseltine,” the petition for review states.
The petition for Supreme Court review goes on to say that the law at the time of the 2019 Molde trial was not settled as to whether the expert witness’s testimony was Haseltine testimony that would indicate the alleged victim was the telling the truth.
Prejudicial
The state attorney general’s petition for review to the Supreme Court also indicates that the court of appeals made a mistake by concluding that the defense attorney’s failure to object to the expert witness’s testimony was prejudicial to Molde.
That is, if the expert witness had not said 99 percent of victims are telling the truth about sexual assault, then the outcome of the Molde trial could have been different and the jury might not have found Molde guilty.
“To show prejudice, ‘the likelihood of a different result must be substantial, not just conceivable,’” the petition for review states.
The expert witness did not say whether she believed that the alleged victim was telling the truth, according to the petition for review to the Supreme Court.
No review needed
In Nelson Defense Group’s 16-page response filed July 1, 2024, the response points out that the expert witness who had said that 99 percent of children are telling the truth about sexual assault was directly involved in the alleged victim’s examination.
The expert witness had supervised the person who had interviewed the alleged victim, so the jury would have viewed the expert witness’s testimony that 99 percent of children are telling the truth about sexual assault as an endorsement of the alleged victim’s credibility, the response states.
The expert’s testimony that 99 percent of all child sexual assault reports are true “provided a mathematical statement approaching near certainty that false reporting simply does not occur,” according to the response.
Regarding the ineffectiveness of counsel, if the defense attorney had objected to the expert’s testimony, there is a “reasonable probability” that the result of the trial would have been different, the response states.
“There’s no possibility the jury could have interpreted the expert’s statistical testimony as something other than a comment on [the alleged victim’s] credibility. She was the only person in the courtroom to whom the percentage would have applied,” according to the response.
Well-settled
The Molde case “calls for the application of well-settled principals to the factual situation, [so] review [by the Supreme Court] is unnecessary and unwarranted,” according to the response.
The court of appeal’s decision “creates no conflict or need for this [Supreme] Court to clarify the law,” the response states.
The petition for review from the state attorney general’s office also “does not demonstrate a need for the Court to ‘consider establishing, implementing or changing a policy within its authority,’” according to the response, which goes on to say, “the State’s petition does not demonstrate a need to reexamine current law.”
The court of appeals application of Haseltine was not “novel nor a deviation from well-settled law, [and] the State’s petition presents no significant question of state or federal constitutional law,” according to the response.
Regarding the state’s assessment of prejudice to Molde, in which the state attorney general’s office disagrees with the court of appeal’s assessment of prejudice, “mere error correction is not a basis for [the Supreme Court’s] review,” the response states.
The Supreme Court is a court “’intended to make final determinations affecting state law, to supervise the development of the common law, and to assure uniformity of precedent throughout the state,’” according to the response.
Therefore, no review by the Supreme Court is needed, the response states.
Extended
The state attorney general’s office filed a motion on December 3, 2024, to extend the time when the first briefs were due to be submitted to the Supreme Court.
The Supreme Court extended the deadline to January 13, 2025, in an order dated December 4, 2024.
