Father’s molesting convictions once again affirmed in long-running appeal

An Indiana man who has been appealing for 10 years his convictions of molesting his daughter won no relief at the 7th Circuit Court of Appeals, which ruled Thursday that errors in his trial “did not produce a significant likelihood an innocent person was convicted.”

The defendant-appellant, Keith Hoglund, had two daughters with Teresa Malott, including A.H., born in 1998. A.H. twice tried to tell Malott that Hoglund was molesting her, and Malott went to the police after her daughter’s second confession.

A.H. told a detective that her father had forced her to perform oral sex on him, but Hoglund denied the allegations to both law enforcement and to a jury. The jury, however, found him guilty in 2010 of molesting A.H., and a judge sentenced him to 50 years.

Hoglund began state-court appellate proceedings but was unsuccessful at both the Indiana Court of Appeals  and Indiana Supreme Court. He was likewise unsuccessful in his efforts for habeas relief in the U.S. District Court for the Northern District of Indiana.

In his appeals, Hoglund claimed ineffective assistance of counsel, arguing his attorney failed to properly object to hearsay. The federal court agreed defense counsel was deficient, but also determined the state-court ruling that Hoglund was not prejudiced was not objectively unreasonable.

He also claimed his due process rights were violated when experts’ vouching testimony was admitted. The state court determined this was harmless error, and the federal judge found that ruling was not unreasonable.

Hoglund fared no better before the 7th Circuit, which affirmed in all respects in Keith Hoglund v. Ron Neal, Warden, 18-2949.

His first argument was that his trial counsel was ineffective for failing to argue that no foundation supported the medical exception to hearsay under Indiana Rule of Evidence 803(4). In the underlying testimony, three medical experts “relayed what A.H. told them and they essentially said they believed her.”

The 7th Circuit agreed there was prejudice in counsel’s failure to object to testimony from a clinical psychologist and a mental health counselor, neither of whom established that A.H. knew she was seeing them for medical diagnosis or treatment. The third expert, a pediatrician, testified that A.H. believed she was getting a “checkup,” but defense counsel did not push the issue further after the prosecution asserted the hearsay exception.

But determining the state court did not run counter to Strickland v. Washington, Judge Daniel Manion wrote Thursday that “there was no reasonable probability that, but for counsel’s deficient performance on hearsay, the result of the trial would have differed.”

“A.H.’s testimony was strong, graphic, detailed, and internally consistent,” Manion wrote. “… Hoglund’s trial counsel subjected her to extensive, probing, aggressive, detailed, even at times tedious cross examination, but she held up. Her account remained consistent.”

Hoglund returned to the issue of the experts’ testimony in arguing their “improper vouching” for the validity of A.H.’s testimony violated his due process rights. The appellee argued Hoglund procedurally defaulted this claim by basing his direct appeal arguments only on state evidentiary rules, but the 7th Circuit rejected that contention.

Even so, Hoglund did not succeed on his due process claim.

“No doubt the experts indirectly and directly vouched,” Manion conceded. In his direct appeal, the Indiana Supreme Court likewise determined vouching testimony is not allowed in child sex abuse cases but affirmed Hoglund’s convictions on harmless-error grounds.

But “(t)he case against him without the problems (even broadly construing the problems) was strong,” Manion wrote.

“True, the district judge thought the case was not overwhelming. But he said multiple times he thought it was strong even without the experts,” the judge concluded. “We agree. … The vouching did not produce a significant likelihood an innocent person was convicted.”

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