Part Two Enumeration of Error

1. Barlow/Goldstein Issue. Petitioner was deprived of his Sixth Amendment right to effective assistance of councel by his trial counsel's failure to introduce expert testimony pursuant to Barlow v. State, 270 Ga. 54, 507 S.E.2d 416 (1998) for the purpose of providing the jury with information about proper techniques for interviewing children and the possible effects of the interviewing techniques actually utilized. Goldstein v. State, 283 Ga. App. 1 (2006). The Court erred in failing to grant a new trial on this enumeration of error.









2. Cuzzort Issue. The Court erred in overruling trial counsel's objection to the testimony of forensic interviewer and to the admission of the tape of the forensic interview, Stacy Long, under Cuzzort v. State, 254 Ga. 745 (1985) regarding the introduction of prior consistent statements of a witness (JH and AW) through another witness (Stacy Long) Tr. Tr. 226-230; 244-245. The Court erred in failing to grant a new trial on this enumeration of error.









3. Rape Shield Issue. Petitioner was deprived of his Sixth Amendment right to effective counsel based on trial consel's failure, (as well as the Assisstant District Attorney's failure,) to know the Georgia law of "Rape Shield Statute" was not applicable to child molestation cases or sexual battery cases, which prevented the jury from considering evidence that impeached the alleged victim's and other witnesses' allegations of molestation by the petitioner, and prevented Wade from presenting his defense, that JH and AW were harboring a reason to falsely accuse petitioner. The Court erred in failing to grant a new trial on this enumeration of error.









4. Hall Issue. Petitioner was deprived of his Sixth Amendment Right to effective assistance of counsel by his trial counsel's failure to investigate, prepare, and presentlay witness and expert witness testimony pursuant to Hall v. State, 201 Ga. App. pg. 626,411 SE 2d pg. 777 (1991), that would have demonstrated that the alleged victim did not exhibit behavior typical of a sexually abused child, nor did Wade's son, AW, exhibit the behavior of one who had knowledge of his father engaging in sexual abuse of his best friend. The Court erred in failing to grant a new trial on this enumeration of error.









5. Petitioner was deprived of his Sixth Amendment right to effective assistance of counsel by his trial counsel's failure to seek disclosure of potentially exculpatory evidence, by his failure to adequately prepare and learn Georgia law on child molestation, by underutilizing the forensic expert he hired. The Court erred in failing to grant a new trial on this enumeration of error.









Part Three Argument and Citation of Authorities







1. Petitioner was deprived of his Sixth Amendment right to effective assistance of counsel by his trial counsel's failure to introduce expert testimony pursuant to Barlow v. State, 270 Ga. 54, 507 S. E. 2d 416 (1998) for the purpose of providing the jury with information about proper techniques for interviewing children and the possible effects of the interviewing techniques actually utilized. Goldstein v. State, 283 Ga. App. 1 (2006).







Trial counsel, Martin Levitt, hired Dr. Eric S. Engum, who is both an attorney and a clinical psychologist specializing in clinical neuropsychology, to review the 2006 videotape of JH and the April 18, 2007 vidoetape of AW. 11/06/08 Tr. 77. In his handwritten notes, attached as Exhibit 2 to the Motion for a New Trial; admitted at the 11/06/08 evidentiary hearing as Defendant's Exhibit 24, Dr. Engum recognized that this was potential issue, yet there is nothing in the record to indicate that he ever saw the tape. "This interview absolutely should have been provided to this expert (Dr. Engum)", according to the March 27, 2008 affidavit of Amy Morton, LMFT (Licensed Marriage and Family Therapist). 11/06/08 Tr. 23-24. This Court certified Ms. Morton as an expert in forensic interviewing and family therapy. There was no objection from the State. 11/06/08 Tr. 14. See Amy Morton Affidavit attached, at page 7. Amy Morton also advised, as follows:



The (prior) interview was also not presented by the defense at trial. In fact, this vidoe is not in the defense file at all. Based on Ms. Long's testimony at trial, it appears that AW's statements in this interview contradicted his statements in the interview nearly one year later and AW's testimony at trial. The expert should have been provided with this tape so that he could evaluate the change in the child's statement in context and comment on the interviewer's technique and issues such as the impact of multiple interviews (both forensic and clinical in therapy) over time and the impact of family/peer pressure. Likewise, the expert should have evaluated the interviews of the other children, Brooke, PW,BW. since they could have been in the home when the alleged incidents occurred, the absence of them witnessing anything could be significant, and their statements to the interviewer might or might not have contradicted other testimony. (See also 11/06/08 Tr. 26)







Amy Morton also suggested other documents which, based upon paperwork in the defense file were clearly in existence, should have been requested by defense counsel, but were not. She difined a forensic interview and its importance, at the hearing. 11/06/08 Tr. 29-30. She also addressed suggestibility and the problems created when forensic interviewer asks leading questions and injects bias into the interview, which impacts the integrity of that process. See 11/06/08 Tr. 30-37. Documents were requested by undersigned counsel and were provided and reviewed by Amy Morton. 11/06/08 Tr. 23-24. Those documents, which were never requested by trial counsel, are:



1. The videotape and Forensic Interview Report of the first forensic interview with AW conducted on April 21, 2006. (Marty Levitt did not request this interview because he relied on the D.A.'s notes in the D.A.'s file. 11/06/08 Tr. 101, 129



2. The videotapes and the Forensic Interview Reports of the forensic interviews with Brooke Wade, PW and BW. (Marty Levitt did not request this interview because he relied on the D.A.'s notes in the D.A.'s file 11/06/08 Tr. 101,129)





3. The Forensic Interview Report for the April 18, 2006 Forensic Interview of AW. ( Marty Levitt did not request this interview because he relied on the D.A.'s notes in the D.A.'s file. 11/06/08 Tr. 101, 129.





4. The counseling records of JH. (Levitt did not adress)





5. The medical records of JH. (Levitt did not adress)





6. The school records of JH. ( Levitt testified that he did not think he could get them 11/06/08 Tr. 82)





7. Notes, audio and video tapes and reports of every interview with AW and JH done by the police, detectives, forensic interviewers or any other party employed by the County or State. (Mr. Levitt relied on the D.A.'s notes, see above)

The documents referenced in the tapes the district attorney's office provided to defense counsel should have been requested, and should have been provided to the expert consulted by the defense, so he would be able to evaluate the case, having a clear picture of what all parties knew and saw or did not see. Futher, the expert could have become aware of the suggestive techniques and the pressure brought to bear on AW, to do the right thing and label his father as one who victimized AW's best friend, JH. Further, the expert could have shown Mr. Levitt how to proterly utilize Engum's expertise to bring this information to the jury, and show the jury that the statements of the child witnesses were unreliable. Under Barlow vs. State, 270 Ga. 54, 507 S.E. 2d 416 (1998) trial counsel could and should have introduced expert testimony for the purpose of providing the jury with information about proper techniques for interviewing children and the possible effects of the interviewing techniques actually used by Ms. Long or Detective Cooley, specifically to include the possible improper influence of AW and JH by third persons prior to any interview by the State and the failure of Ms. Long to address these issues in her interview. As the Barlow Court noted:

Child sexual abuse cases are a special lot. A major distinguishing aspect of a child sexual abuse case is how the victim came to relate the facts which led to the bringing of criminal charges. A defendant not only should be able to cross-examination prosecution witnesses regarding how they obtained their information, but also should have the chance to present expert testimony as to how such information is ideally obtained.

Citing with approval State v. Gersin, 668 NE 2d 486, 488 (Ohio 1996). An expert could have critiqued Ms. Long's interveiw techniques. Instead trial counsel did nothing to refut the State's witness, who claimed to be an expert, with an expert witness of his own. The absence of a defense expert produced what the Barlow court called an "uneven playing field." At the motion for a new trial hearing Wade demonstrated through expert witness, Amy Morton, that Stacy Long used umproper interviewing techniques and that the techniques used by the Ms. Long often elicit false information. See Defendant's Exhibit 1 to motion for new trial, and cv at pages 23-28; see also at the conclusion of D.MNT Exhibit 1, Amy Morton Affidavit/report, concluding that the interview of JH by Stacy Long is riddled with errors, leading, suggestive questions and her failure to discover whether "JH's allegations were influenced by anything other than his own experience." See also Ms. Morton's testimony at the evidentiary hearing. 11/06/08 Tr. 35-37 (Trial transcript and other documents reviewed by Morton shows that over a period of four to six months, there were actually numerous interviews of JH, as he was questioned by family members who suggested that he may be subjected to sexual abuse, specifically by Brad Wade. There were numerous conversations JH has with others, prior to the Stacy Long interview which were subject to confirmatory bias.) See also 11/06/08 Tr. 37-40 concerning leading questions of Stacy Long during her interviews with JH and AW.)

More to come. This is the entire motion that was filed with the state. We were denied our new trial recently.