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Updated: Saturday, 12 Jan 2013, 5:03 PM CST
Published : Saturday, 12 Jan 2013, 10:22 AM CST
MILWAUKEE (AP) - A Milwaukee man serving a life sentence for homicide is getting a new trial after the Wisconsin Innocence Project accused the man's attorney of mounting a bungled defense.
The Innocence Project is a program through the University of Wisconsin law school that works to free wrongfully convicted inmates. Its attorneys argued that Seneca D. Malone didn't receive a fair trial in 2008 because his defense attorney failed to conduct his own investigation, interview witnesses or object to inadmissible evidence.
A judge agreed in November to vacate Malone's conviction. A new trial date will be set Tuesday.
A jury convicted Malone, 27, of first-degree intentional homicide. He was sentenced to life in prison but could be eligible for parole in 2055, when he turns 70. Malone didn't testify on his own behalf, and public defender Theodore Bryant-Nanz called no witnesses.
The prosecution's key witness was Malone's friend, Mark Fossier. However, even though Fossier's inconsistent testimony raised apparent red flags the defense attorney failed to present evidence contradicting those statements, said Ion Meyn, a supervising attorney for the Innocence Project.
Bryant-Nanz did not immediately return a telephone message or email seeking comment. A message for Fossier was also not immediately returned.
The victim was Malone's acquaintance, Ricardo Mora, who was shot five times in 2005. Police made no arrests and the investigation went dormant for about two years.
The probe was revived in early 2008, when detectives questioned Fossier as a suspect during an interrogation that lasted about 10 hours. Fossier repeatedly denied any knowledge of the homicide, but when officers told him Malone and others had implicated him as the shooter, Fossier eventually named Malone as the man who pulled the trigger.
Fossier helped police compile a summary of his activities on the day of the shooting. Fossier claimed that at the time of the shooting a friend was giving Fossier a haircut on the friend's front porch, Meyn said.
The defense attorney didn't challenge that statement. However, Innocence Project attorneys said they dug up weather data showing the temperature was 9 degrees that day. They also found utility records and rent statements showing that the friend had moved away from the house four months earlier, to a new house that didn't have a porch large enough for someone to sit for a haircut, Meyn said.
Meyn said he wasn't sure why the defense attorney didn't conduct his own investigation.
"Wisconsin case law requires you to do this investigation," he said. "Regardless of any kind of resource issues, it doesn't matter. There's a duty."
The Innocence Project also questioned why Bryant-Nanz failed to object to trial evidence that Meyn said was inadmissible. Prosecutors had played recordings of telephone calls from jail between Malone and several friends. However, prosecutors edited out the portions of the conversation where Malone protested his innocence and wondered tearfully why he was being charged with a crime he didn't commit.
Grant Huebner, the assistant district attorney who prosecuted the original case, said he planned to prosecute the new trial just as aggressively.
"The court ruled that the defense attorney at trial was ineffective. That doesn't change our position," he said. "I believe that we can prove this case beyond a reasonable doubt."
During a post-conviction hearing the Innocence Project produced a witness who testified that he heard Fossier confess to the shooting. Other witnesses provided alibis, saying Malone was with them at the time.
But Huebner said the witnesses' testimony was unreliable. He also said he was reluctant to discuss the proceedings in details because the case shouldn't be tried in the media.
Meyn declined to say why Malone didn't testify on his own behalf.