A judge on Friday granted a hearing after a man, convicted last year of sexually assaulting a five-year-old boy, claimed that his attorney did not adequately defend him during trial.

Joshua Ashby Winters was convicted of kidnapping, first-degree sexual abuse of a minor and second-degree sexual abuse of a minor. District Judge Thomas Sullins in September sentenced Winters to a total of 80-115 years in prison.

Winters's attorney, Keith Nachbar, filed a motion in March claiming that Winters' conviction was "a consequence of constitutionally deficient trial counsel, and that deficiency prejudiced his ability to receive a fair trial." The motion requested a new trial.

During a hearing on Friday, Sullins granted Nachbar's request for an evidentiary hearing in the matter. That hearing, which was set for July 2 at 8:30 a.m., will give Nachbar an opportunity to develop, on the record, the claim that Winters's trial attorney was ineffective.

Public defender Robert Oldham represented Winters during the May 2017 trial. Nachbar, in his motion, alleges five failures by Oldham during trial:

  • failure to challenge the competency and credibility of a child witness, who was the victim in the case;
  • failure to object to the admission of the forensic interview of the victim as well as other claimed hearsay;
  • admission of other hearsay without objection;
  • failure to interview and confront witnesses;
  • failure to consult with and call a DNA expert.

Assistant District Attorney Kevin Taheri, in his response to the defense claim of ineffective assistance of counsel, says Oldham's work during the trial was anything but deficient.

"In fact his trial counsel, who happens to be one of the most experienced criminal defense attorneys in the State of Wyoming, was far beyond competent," Taheri stated. "There were a lot of things that led to the Defendant's conviction, but ineffective assistance of counsel was not one of them."

Taheri also detailed the legal standard for granting a new trial based on ineffective assistance of counsel in Wyoming.

"Defendant has not come close to meeting this high burden of showing his counsel was ineffective," Taheri stated. "The Defendant's conviction was based on the overwhelming evidence against him..."

At the July evidentiary hearing, both parties intend to call Oldham to testify regarding his work at trial.

Nachbar said he intends to call two expert witnesses in addition to Oldham. One of them is J. Christopher McKee, who works as a professor at the University of Colorado Law School.

McKee would testify that Oldham's assistance during the trial was ineffective. Taheri, in his response to the defense motion, objected to McKee testifying.

"The State does not see how this testimony does anything more than give the new defense counsel a chance to make two arguments, one by him, and one by Professor McKee," Taheri stated.

Taheri himself intends to call Kathryn Normington, senior forensic scientist at the Wyoming State Crime Lab, who testified at trial regarding a biological swab taken from the victim's anus which contained Winters's DNA.

Winters's appeal of the verdict is stayed pending the motion for a new trial. The appeal was docketed with the Wyoming Supreme Court in early December.

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