Anthony Pico plans to appeal to Supreme Court
The Wisconsin Court of Appeals on May 10 reinstated the child sexual assault conviction against Oconomowoc resident Anthony Pico almost two years after a Waukesha County Circuit judge overturned it and ordered a new trial for him.
But Pico's fate could ultimately rest with the state Supreme Court, which he plans to petition for a hearing, according to his new trial attorney, Anthony Cotton.
Pico, 47, was convicted by a jury in December 2012 of first-degree sexual assault of a child younger than 13. He was sentenced to six years in prison and 10 years of extended supervision. Judge Michael Bohren vacated that conviction in July 2015, finding that Pico had received an inadequate defense at trial.
But the court of appeals has reversed Bohren's decision, ruling that Pico's "trial counsel’s performance was not constitutionally ineffective," and reinstated the conviction.
Online court records indicate Pico's case in circuit court had been on hold pending a ruling from the appellate court.
Circuit Judge Michael Maxwell on Monday, May 15, postponed a motion hearing for Pico, pending the filing of his petition to the Supreme Court. That hearing will be held June 16.
Basis for charge
Pico was convicted of inappropriately touching a then-8-year-old student during a reading exercise in April 2012 at Summit Elementary School.
He argued in circuit court that his trial attorney, Jonathan LaVoy, failed to provide a reasonable legal defense for him. A brief supporting Pico's appeal asserted that LaVoy did not call any witnesses during the trial, did not obtain or research potentially exculpatory medical records or challenge the testimony of any of the prosecution's expert witnesses.
Pico also suggested that LaVoy did not adequately probe the effects of a 20-year-old frontal lobe injury Pico suffered during a motorcycle accident. Symptoms associated with that injury might have accounted for Pico's behavior with the girl, he argued.
Every one of those decisions prejudiced the case against Pico and denied him a fair trial, his appellate attorney, Tracey Wood, argued in the brief.
The court of appeals rejected those arguments, ruling that Pico had not shown prejudice because he could not demonstrate there was a reasonable probability that the proposed defenses would have resulted in an acquittal.
The court, in its 44-page decision, quoted a state expert who said at trial that it "'would be very surprising' that Pico could have built and maintained a successful career, been such a highly regarded caregiver to his children, and active in volunteer work, if he was suffering from problems with his judgment and impulsivity and having difficulty interpreting social cues and being unable to control primitive urges" as a result of his injury.
However, Judge Paul F. Reilly filed a dissenting opinion, writing, "The majority’s decision ignores facts supporting the trial judge’s decision and keys in on facts it finds more desirable in order to reach its own conclusions.
"A trial judge sees, feels, and hears the evidence. We do not."
Prosecutors have moved to revoke Pico's bail following the court of appeals ruling. That motion will be discussed at the June 16 hearing.