A former UW-Madison student is trying to have his conviction for sexually assaulting a fellow student thrown out, maintaining his attorney made critical mistakes and his jury delivered contradictory verdicts.
A jury found Nathan Friar guilty of second degree sexual assault in April of last year, but acquitted him of a strangulation charge.
Trial Judge Josann Reynolds noted at Friar’s July 2017 sentencing the jury’s decisions were flawed, because strangling the victim was the only accusation of force in evidence and the second degree charge requires force to have been used. In an interview with 27 News, the victim disputed the judge’s view of the evidence and said the jury’s guilty verdict was sound.
But Friar says his trial attorney, Brian Brophy, failed to challenge witnesses including the victim on critical matters.
During testimony Wednesday in a Dane County court hearing on Friar’s motion to have his conviction set aside, Brophy said trial strategy prompted him to avoid pressing the victim’s roommates on their statements the victim told them she had no memory of sexual intercourse with Friar. Brophy said he feared that line of questioning would lead to examination of the victim’s claim to her roommates she was strangled by Friar.
Friar also maintains Brophy failed to challenge the victim’s testimony on her level of drinking on the night of the sexual encounter, and her representations of the effect of the combination of her drinking and her diabetes on her memory.
Brophy testified he regrets not having secured expert witness testimony on the medical issue, after the victim surprised him with what he considers a flawed answer on the combination’s impact.
“I didn’t expect that type of testimony, but again, in hindsight, yeah, I wish I had had an expert in reserve,” Brophy says.
Assistant Dane County District Attorney Stephanie Hilton argues Brophy’s overall representation of Friar was more than legally adequate and the issues alleged by Friar do not constitute ineffective counsel.
During the hearing, Hilton’s questioning of Brophy about his past, professional association as law firm colleagues with Reynolds prompted Judge Susan Crawford to ask if the inquiries amounted to a suggestion of bias on the part of Reynolds in the Friar trial. Hilton argued the questioning was relevant, but Crawford ruled it was beyond the scope of the hearing’s purpose.
Crawford is presiding over this phase of the case after Reynolds recused herself. At sentencing in July 2017, Reynolds rejected the prosecution’s request for more than a half dozen years in prison for Prior and gave him eight years probation, noting her “dissonance” with the jury’s verdicts played a role in her decision.
Friar claims sex between himself and the woman at his downtown Madison apartment building in June 2016 was consensual. Because of his challenge to his conviction, his required sex offender treatment is delayed, although he is listed on the state’s sex offender registry.