5/28/2019 7:29:00 AM Stardust files motion 11 years after conviction
River News Staff
A Milwaukee man convicted of sexually assaulting a music student in Vilas County back in 2003 is seeking a new trial.
According to court records, Paul-Michael "Ziggy" Ziegfield Stardust, 71, filed a motion in late April seeking post-conviction relief in the form of a new trial due to "ineffective assistance of postconviction counsel and trial counsels' deficient and prejudicial performance."
Stardust, who was once known as Paul-Michael Jonathan Hanks, has served 11 years of a 17-year sentence on five counts of child enticement-expose sex organ. He was convicted following a jury trial in April 2008.
According to court records and River News archives, the complaining witness told authorities Stardust sexually assaulted her in 2000 while he was the choir director at St. Peter the Fisherman Catholic Church in Eagle River. The woman told police she was 16 years old when her physical contact with Stardust progressed from hugs to sexual intercourse.
At trial, three other women testified that Stardust had sexually assaulted them in the 1970s when they were young teenagers in Indiana.
In addition to the 17 years incarceration, Stardust was also sentenced to 7 years extended supervision.
In the motion for post-conviction relief, which Stardust wrote himelf as a "pro se" defendant, he argues his post-conviction counsel failed to raise trial counsel's ineffectiveness in allowing the jury to hear a "highly prejudicial phone recording and transcripts". He also accuses his post-conviction attorney of failing to raise the question of whether trial counsel was ineffective when he failed to move for a mistrial after the jury heard the phone recordings as well as alleged "perjured" testimony from a relative of the accuser.
Finally, Stardust accuses his post-conviction attorney of failing to challenge Judge Leon Stenz's "erroneous exercise of discretion on Stardust's direct appeal."
In explaining his first allegation, Stardust states he hired trial counsel Gary Cirilli to protect his constitutional rights during trial. "However, Attorney Cirilli failed to protect those rights by allowing/leaving major legal decisions, such as 'motion for mistrial' to an unlegally educated defendant to make such a major decision without a clear understanding of the ramifications of his decision," he wrote.
According to the motion, the state was allowed to play for the jury a recording of two phone calls made to Stardust by the alleged victim. The jury listened to the one hour and ten minute recording and read transcripts presented to them by the district attorney. However, the court later determined that the recording and transcripts should not have been played for the jury, due to it being inadmissible evidence. At that point, he gave an instruction advising the jurors not to consider the phone recordings in their deliberations.
"The simple fact is trial counsel is ineffective for not moving to suppress the phone recordings under Wisconsin's other acts of evidence statute," Stardust wrote. "Any prudent attorney would have, making counsel's inaction deficient and prejudicing the jury against his client. In other words, there is a reasonable probability of a different outcome."
Further, he faults his post-conviction counsel for failing to adequately raise the issue of trial counsel's performance related to the phone recording and an instance where a relative of the accusing witness allegedly committed perjury.
"The fact that the court let the jury hear the (witness's) perjured testimony ... was highly prejudicial/detrimental to Stardust," he wrote.
Finally, Stardust arges his post-conviction counsel was ineffective for not adequately challenging Judge Leon Stenz "erroneous exercise of discretion in direct appeal."
Specifically, Stardust claims Stenz denied his initial post-conviction motion challenging Cirilli's effectiveness based on the attorney's reputation rather than his performance at trial.
In particular, he takes issue with this statement made by Stenz in denying the post-conviction motion.
"(Cirilli) enjoys a reputation in the Northwoods as one of the better criminal defense attorneys. Quite frankly, he appears to have more experience than the expert called against him. He has tried many cases and he has tried many serious cases. I've known Mr. Cirilli for many years. Probably as many years as he has been practicing. I think I moved here in '87. That is right around when he started, if I am not mistaken. So I know that he enjoys a very solid reputation as a skilled practitioner and particularly a trial attorney. A lot of people for the public defender may walk you through the system and get you a plea agreement. Mr. Cirilli has a reputation of being able to adequately try cases and win some. So I think that he is a skilled attorney."
The standard for determining whether counsel has been ineffective "is not the attorney's reputation, nor if he's an expert or tried many cases. It's was he deficient and prejudicial at Stardust's trial," Stardust writes before answering his own question. "Yes, he was and there is a reasonable probability that the errors contributed to an unfair trial, whose results are unreliable. "
Stardust ends his motion with a request that his conviction be vacated and an evidentiary hearing or new trial granted.
"Stardust has presented material facts that are clearly based on transcripts, and case law," the motion states. "He was denied his constitutional rights to effective assistance of both trial and appellate counsel, and his right to due process and a fundamentally fair trial. This court must vacate this illegal conviction or hold an evidentiary hearing, or grant a new trial. This case was anything but fundamentally fair to Stardust. Something the Constitution mandated of our legal system is fairness. A defendant's guilt must be proven by an impartial jury, by an impartial court. His Constitutional rights must be guaranteed and cost nor time must play a role in it."
According to court records, Vilas County district attorney Martha Milanowski acknowledged receipt of the motion May 3 and sent a letter to the court requesting a scheduling order be issued.
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