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Hartford, Conn., Judge Trial Referee Richard M. Rittenband granted a habeas petition this month, after finding that poor lawyering by three attorneys likely kept a defendant from being acquitted on sexual assault charges. In a rare and unusually sharp rebuke Sept. 12, Rittenband ordered a new trial for Lennard Toccaline, whose case, the judge determined, was flooded with claims of ineffective assistance of counsel. The brunt of Rittenband’s criticism in Toccaline v. Commissioner of Corrections is directed at Toccaline’s trial attorney, Mark Hauslaib. Though Rittenband acknowledged that he was familiar with the Storrs attorney — and has usually held him in high regard — he cited numerous instances where Hauslaib screwed up in defending Toccaline. “I find [Hauslaib] to be a generally competent attorney,” Rittenband wrote. “But something must have slipped in this particular trial because this is not the Attorney Hauslaib that I had known.” Finding at least eight incidents where Hauslaib’s representation was shoddy, Rittenband allowed the petitioner to be conditionally released from confinement. Rittenband will hold a hearing today to determine if Toccaline, who has a prior felony conviction for sexual assault in the first degree, should be released on bond. CONFLICTING STORIES Though the judge acknowledged it was Hauslaib’s first case involving a sexual assault of a minor, Rittenband repeatedly stated that Hauslaib’s actions “fell below the level of competence of criminal defense attorneys in the area.” In the underlying case, Toccaline was convicted of sexually assaulting a 12-year-old girl and sentenced to 40 years imprisonment, suspended after 25 years, after he elected to be tried on a persistent dangerous offender charge based on his prior felony conviction. The Connecticut Supreme Court subsequently upheld both convictions. Old Lyme, Conn., attorney Conrad Seifert represented Toccaline in his habeas petition, successfully arguing that Hauslaib failed to: object to testimony from a witness; obtain discoverable material; mount an effective defense regarding an alternative theory of the crime; and effectively put on an alibi defense, among other claims. “I am totally thrilled,” Seifert said in an interview last week. Hauslaib could not be reached for comment. According to the ruling, the 12-year-old girl, referred to as “MC,” claimed that, on at least three occasions during the summer of 1996, Toccaline kissed her breasts and vaginal area, forced her to help him masturbate, and pinned her down so that he could penetrate her vaginally. MC had visited Toccaline, who was 35 at the time, because he was the live-in boyfriend of her aunt. In 1998, MC’s mother was cleaning her daughter’s bedroom when she found a letter from a man named “Wiseman,” a friend of the girl’s father who often babysat the child. In the letter, Wiseman told MC that “he wanted to hold her and take her pain away.” MC, however, denied any sexual contact with Wiseman. Instead, she told her mother that Toccaline had sexually assaulted her. When questioned by police, the defendant admitted that he and MC often “horseplayed” together, and that he may have had sexual contact with MC during those encounters. He, however, denied that such contact constituted intercourse. MC meanwhile told police that she and Wiseman were close friends and that “they loved each other and he would wait for her until she was eighteen and out of her parent’s control.” She also said they “French kissed” at least 20 times. But at Toccaline’s trial, both she and Wiseman testified that their relationship was platonic. IMPROPER QUESTIONS In granting Toccaline’s petition, Rittenband faulted both Assistant State’s Attorney Debra Collins for not turning over the police report outlining the relationship between MC and Wiseman to the defense, and Hauslaib for not making more of an effort to obtain it. The judge also criticized Toccaline’s appellate counsel, Richard Cramer, finding that he should have raised to the Appellate Court the issue of invoking its supervisory authority to grant a new trial in light of prosecutorial misconduct. Both Cramer and Collins could not be reached by press time. In the ruling, Rittenband wrote that Collins, who represented the state at Toccaline’s trial, possibly withheld the police report and asked “improper questions” of an expert witness, a licensed social worker who testified as to whether the 12-year-old girl was telling the truth. Under evidence rules, the judge noted, expert witnesses can’t testify to the credibility of a particular victim, but instead must limit their opinions to child abuse victims in general. Rittenband added that Collins then “compounded the improper questions by citing the answers in both her closing and rebuttal remarks to the jury.” The report allegedly withheld by Collins had impeachment value in that Hauslaib could have undermined the testimony of both MC and Wiseman, Rittenband concluded. Still, he could not find in favor of the actual innocence claim that Seifert also initiated because of Toccaline’s alleged confession to the state police, he wrote. “These errors by trial counsel produced an unreliable determination of the Petitioner’s guilt, they undermined confidence in the outcome the trial, and but for these errors there is a reasonable probability that the result would have been an acquittal,” Rittenband proclaimed. JoAnne Sulik, the prosecutor who represented the state during the habeas petition, said she was not sure if she would appeal Rittenband’s decision.

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